Exhibit 4.4


 


CONFORMED COPY


 


(Incoporating amendments and corrections made
pursuant to an


amendment
agreement dated 10 March 2004, a second


amendment deed
dated 28 June 2004, a correction of manifest


errors letter
dated 10 November 2004, a third amendment letter


dated 1 December 2004,
a fourth amendment and consent letter


dated 10 March 2005
and a fifth amendment and restatement deed


dated 30 November 2005,
 by a Sixth Amendment Agreement


dated 18 September 2006,
a second correction of manifest errors


letter dated
18 January 2007 and by a Seventh Amendment


Agreement dated
27 July 2007)


 


€730,000,000


AMENDED
AND RESTATED SENIOR FACILITIES AGREEMENT


 


Between


 


BUHRMANN
N.V.

as Parent


 


BUHRMANN
US INC.

as Existing Borrower


 


THE
ORIGINAL GUARANTORS NAMED HEREIN

as Original Guarantors


 


DEUTSCHE
BANK AG, LONDON BRANCH

ABN AMRO BANK N.V.

as Arrangers


 


DEUTSCHE
BANK AG, LONDON BRANCH

as Agent


 


DEUTSCHE
BANK AG, LONDON BRANCH 

as Security Trustee


 


and


 


THE
LENDERS


 






 





5 Old Broad Street


London EC2N 1DW


 

















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1.

  	
  DEFINITIONS AND INTERPRETATION

  	
  1

  
	
  2.

  	
  THE FACILITIES

  	
  59

  
	
  3.

  	
  CONDITIONS

  	
  61

  
	
  4.

  	
  UTILISATION

  	
  61

  
	
  5.

  	
  DOCUMENTARY CREDITS

  	
  65

  
	
  6.

  	
  SWINGLINE FACILITIES

  	
  69

  
	
  7.

  	
  UNCOMMITTED INCREMENTAL FACILITIES

  	
  73

  
	
  8.

  	
  OPTIONAL CURRENCIES

  	
  80

  
	
  9.

  	
  REPAYMENT OF REVOLVING AND SWINGLINE
  FACILITY OUTSTANDINGS

  	
  80

  
	
  10.

  	
  REPAYMENT OF TERM FACILITY OUTSTANDINGS

  	
  81

  
	
  11.

  	
  CANCELLATION

  	
  85

  
	
  12.

  	
  VOLUNTARY PREPAYMENT

  	
  86

  
	
  13.

  	
  MANDATORY PREPAYMENT

  	
  90

  
	
  14.

  	
  INTEREST ON REVOLVING AND SWINGLINE
  FACILITY ADVANCES

  	
  97

  
	
  15.

  	
  INTEREST ON TERM FACILITY ADVANCES

  	
  98

  
	
  16.

  	
  MARKET DISRUPTION AND ALTERNATIVE INTEREST
  RATES

  	
  99

  
	
  17.

  	
  COMMISSIONS AND FEES

  	
  101

  
	
  18.

  	
  TAXES

  	
  102

  
	
  19.

  	
  INCREASED COSTS

  	
  104

  
	
  20.

  	
  ILLEGALITY

  	
  105

  
	
  21.

  	
  REPLACEMENT AND MITIGATION

  	
  106

  
	
  22.

  	
  REPRESENTATIONS AND WARRANTIES

  	
  108

  
	
  23.

  	
  INFORMATION UNDERTAKING

  	
  117

  
	
  24.

  	
  FINANCIAL CONDITION

  	
  123

  
	
  25.

  	
  POSITIVE UNDERTAKINGS

  	
  127

  
	
  26.

  	
  NEGATIVE UNDERTAKINGS

  	
  132

  
	
  27.

  	
  ACCESSION OF NEW GUARANTORS AND NEW
  BORROWERS

  	
  154

  
	
  28.

  	
  EVENTS OF DEFAULT

  	
  155

  
	
  29.

  	
  DEFAULT INTEREST

  	
  162

  
	
  30.

  	
  GUARANTEE AND INDEMNITY

  	
  163

  
	
  31.

  	
  AGENT AND OBLIGORS’ AGENT

  	
  167

  
	
  32.

  	
  SECURITY TRUSTEE

  	
  172

  



 


i

















 


	
  33.

  	
  BORROWERS’ INDEMNITIES

  	
  175

  
	
  34.

  	
  CURRENCY OF ACCOUNT

  	
  176

  
	
  35.

  	
  PAYMENTS

  	
  176

  
	
  36.

  	
  SET-OFF

  	
  178

  
	
  37.

  	
  SHARING AMONG THE FINANCE PARTIES

  	
  179

  
	
  38.

  	
  CALCULATIONS AND ACCOUNTS

  	
  180

  
	
  39.

  	
  ASSIGNMENTS AND TRANSFERS

  	
  182

  
	
  40.

  	
  COSTS AND EXPENSES

  	
  187

  
	
  41.

  	
  REMEDIES AND WAIVERS

  	
  189

  
	
  42.

  	
  NOTICES AND DELIVERY OF INFORMATION

  	
  189

  
	
  43.

  	
  ENGLISH LANGUAGE

  	
  191

  
	
  44.

  	
  PARTIAL INVALIDITY

  	
  191

  
	
  45.

  	
  AMENDMENTS

  	
  191

  
	
  46.

  	
  THIRD PARTY RIGHTS

  	
  195

  
	
  47.

  	
  COUNTERPARTS

  	
  195

  
	
  48.

  	
  GOVERNING LAW

  	
  195

  
	
  49.

  	
  JURISDICTION

  	
  196

  
	
   

  	
   

  
	
  SCHEDULE 1

  	
  198

  
	
   

  	
  PART I - LENDERS AND COMMITMENTS

  	
  198

  
	
   

  	
  PART II - ORIGINAL GUARANTORS

  	
  200

  
	
   

  	
   

  
	
  SCHEDULE 2
  FORM OF TRANSFER CERTIFICATE

  	
  202

  
	
   

  	
   

  
	
  SCHEDULE 3

  	
  207

  
	
   

  	
  PART I - CONDITIONS PRECEDENT TO FIRST UTILISATION

  	
  207

  
	
   

  	
  PART II - FORM OF CERTIFICATE OF OBLIGOR

  	
  211

  
	
   

  	
  PART III - SECURITY DOCUMENTS

  	
  213

  
	
   

  	
  PART IV - CONDITIONS SUBSEQUENT DOCUMENTS

  	
  217

  
	
   

  	
   

  
	
  SCHEDULE 4

  	
  221

  
	
   

  	
  PART I - FORM OF UTILISATION REQUEST (TERM FACILITIES AND
  REVOLVING FACILITY)

  	
  221

  
	
   

  	
  PART II - FORM OF UTILISATION REQUEST (SWINGLINE FACILITY)

  	
  223

  
	
   

  	
  PART III - FORM OF INCREMENTAL TERM FACILITY COMMITMENT
  AGREEMENT

  	
  224

  
	
   

  	
  PART IV - FORM OF INCREMENTAL REVOLVING FACILITY COMMITMENT
  AGREEMENT

  	
  231

  
	
   

  	
   

  
	
  SCHEDULE 5 SECURITY
  TRUSTEE PROVISIONS

  	
  237

  
	
   

  	
  PART I - SUPPLEMENTARY SECURITY TRUSTEE PROVISIONS

  	
  237

  
	
   

  	
  PART II - APPOINTMENT AND RETIREMENT OF SECURITY TRUSTEE

  	
  241

  
	
   

  	
   

  
	
  SCHEDULE 6
  ASSOCIATED COSTS RATE

  	
  243

  
	
   

  	
   

  
	
  SCHEDULE 7

  	
  246

  
	
   

  	
  PART I - FORM OF ACCESSION NOTICE

  	
  246

  



 


ii

















 


	
   

  	
  PART II - ACCESSION DOCUMENTS

  	
  248

  
	
   

  	
   

  
	
  SCHEDULE 8

  	
  249

  
	
   

  	
  PART I - FORM OF AUDITORS’ CONFIRMATION

  	
  249

  
	
   

  	
  PART II - FORM OF DIRECTORS’ COMPLIANCE CERTIFICATE

  	
  250

  
	
   

  	
   

  
	
  SCHEDULE 9 GROUP
  STRUCTURE

  	
  251

  
	
   

  	
   

  
	
  SCHEDULE 10

  	
  262

  
	
   

  	
  PART I - EXISTING LIENS

  	
  262

  
	
   

  	
  PART II - EXISTING INDEBTEDNESS

  	
  276

  
	
   

  	
  PART III - NON-GUARANTOR SUBSIDIARIES

  	
  283

  
	
   

  	
  PART IV - EXISTING PROCEEDINGS

  	
  289

  
	
   

  	
  PART V - PLANS

  	
  290

  
	
   

  	
  PART VI - MATERIAL SUBSIDIARIES

  	
  291

  
	
   

  	
  PART VII - EXISTING INVESTMENTS

  	
  291

  
	
   

  	
   

  
	
  SCHEDULE 11
  FORM OF L/C BANK ACCESSION CERTIFICATE

  	
  293

  



 


iii

















 


THIS
AGREEMENT is dated 23 December 2003, as amended and
corrected pursuant to an amendment agreement dated 10 March 2004, a second
amendment deed dated 28 June 2004, a correction of manifest errors letter
dated 10 November 2004, a third amendment letter dated 1 December 2004,
a fourth amendment and consent letter dated 10 March 2005 and a fifth
amendment and restatement deed dated 30 November 2005, and, as of the
Sixth Amendment Agreement Effective Date, by a Sixth Amendment Agreement and by
a second correction of manifest errors letter dated 18 January 2007 and
made between:


 


(1)                                 BUHRMANN N.V. (the “Parent”);


 


(2)                                 BUHRMANN US INC. (the “Existing Borrower”);


 


(3)                                 THE ORIGINAL GUARANTORS NAMED IN PART II OF SCHEDULE 1 (together
with the Parent, the “Original Guarantors”
and each an “Original Guarantor”);


 


(4)                                 DEUTSCHE BANK AG, LONDON BRANCH and ABN AMRO BANK N.V. (each an “Arranger” and together, the “Arrangers”);


 


(5)                                 DEUTSCHE BANK AG, LONDON BRANCH (as
agent for and on behalf of the Finance Parties, the “Agent”);


 


(6)                                 DEUTSCHE BANK AG, LONDON BRANCH (as
security trustee for and on behalf of the Finance Parties, the “Security Trustee”); and


 


(7)                                 THE LENDERS (as defined below).


 


1.                                      DEFINITIONS AND INTERPRETATION


 


1.1                               Definitions


 


In this Agreement
the following terms have the meanings set out below.


 


“Acceding Borrower” means any member of the Group which has
complied with the requirements of Clause 27.2 (Accession of
New Borrowers).


 


“Acceding Guarantor” means any member of the
Group which has complied with the requirements of Clause 27.1 (Accession of New Guarantors).


 


“Accession Notice” means a duly completed notice of accession
in the form of Part I of Schedule 7 (Form of
Accession Notice).


 


“Act”  means
the Companies Act 1985.


 


“Additional Dividend Amount” means:


 


(a)                                  for
the fiscal year ending 31 December, 2006, €25,000,000;


 


(b)                                  for
any fiscal year ending after 31 December, 2006, an amount equal to the lesser
of:


 


(i)                                    €25,000,000;
or


 


1

















 


(ii)                                the
Additional Dividend Amount for the previous fiscal year (the “Previous Year”)
plus the difference (which, for the avoidance of doubt, may be a negative
number) between 35% of the Consolidated Net Income Available to Common
(calculated before deducting any non-cash exceptionals accrued during such
period) for the fiscal year immediately preceding the Previous Year and the
aggregate amount of Dividends paid during the Previous Year.


 


“Additional Security Documents” means all
mortgages, pledge agreements, security agreements and other security documents
entered into from time to time pursuant to Clauses 25.7 (Additional Security and Further Assurances),
25.8 (Stock Pledges in Non-U.S. Subsidiaries
of the Existing Borrower Which Are Not Guarantors) and/or 26.12 (Limitation on Creation of Subsidiaries),
as each such document may be amended, modified or supplemented from time to
time in accordance with the terms hereof and thereof.


 


“Adjusted Consolidated EBITDA” means, for
any period, Consolidated EBITDA for such period, adjusted by excluding
therefrom (to the extent otherwise included therein) any amounts attributable
to CEAL and any of its Subsidiaries, so long as CEAL is a Non-Wholly Owned
Subsidiary.


 


“Adjusted Consolidated Net Income” means,
for any period, Consolidated Net Income for such period plus, without
duplication, the sum of the amount of all net non-cash charges (including,
without limitation, depreciation, amortisation, deferred tax expense and
non-cash interest expense) and net non-cash losses which were included in
arriving at Consolidated Net Income for such period, less the amount of all net
non-cash gains and non-cash credits which were included in arriving at
Consolidated Net Income for such period.


 


“Adjusted Consolidated Tangible Assets”
means, at any time, the Consolidated Tangible Assets at such time, adjusted by
excluding therefrom (to the extent otherwise reflected therein) any amounts
attributable to (a) CEAL and any of its Subsidiaries, so long as CEAL is a
Non-Wholly Owned Subsidiary and (b) any Receivables Subsidiary.


 


“Adjusted Consolidated Working Capital”
means, at any time, Consolidated Current Assets (but excluding therefrom all
cash and Cash Equivalents) less Consolidated Current Liabilities at such time.


 


“Advance”  means,
save as otherwise provided in this Agreement, a Revolving Facility Advance, an
A Facility Advance, a D1 Facility Advance, a D2 Facility Advance, a Swingline
Facility Advance, or an Incremental Term Facility Advance as the context may
require.


 


“A Facility”  means the term loan facility granted to the Existing Borrower
pursuant to Clause 2.1(c) (The Facilities).


 


“A Facility Advance”  means an advance (as from time to time
reduced by repayment) made or to be made by the A Facility Lenders under the A
Facility or arising in respect of the A Facility under Clause 15.3 (Division of Term Facility Advances).


 


“A Facility Commitment”  means, in relation to an A Facility Lender
at any time, and save as otherwise provided in this Agreement, the amount set
opposite its name in the relevant column of Section A of Part I of
Schedule 1 (Lenders and Commitments) or as
specified in the Transfer Certificate pursuant to which such Lender becomes a
party to this Agreement.


 


2

















 


“A Facility Lender”  means a person which:


 


(a)                                  is
named opposite the column relating to the A Facility (with a positive amount)
in Section A of Part I of Schedule 1 (Lenders and Commitments);
or


 


(b)                                  has
become a party to this Agreement in accordance with the provisions of
Clause 39 (Assignments and Transfers),


 


which in each case
has not ceased to be a party to this Agreement in accordance with the terms of
this Agreement.


 


“A Facility Margin”  means, in relation to A Facility Advances,
2.50 per cent. per annum.


 


“A Facility Outstandings”  means, at any time, the aggregate
principal amount of the A Facility Advances outstanding under this Agreement.


 


“A Facility Repayment Date” has the meaning
ascribed to that term in Clause 10.1 (Repayment
of A Facility Outstandings).


 


“Affiliate” means, with respect to any
person, any other person directly or indirectly controlling (including, but not
limited to, all directors and officers of such person), controlled by, or under
direct or indirect common control with, such person.  A person shall be deemed to control another
person if such person possesses, directly or indirectly, the power (a) to
vote 10 per cent. or more of the securities having ordinary voting power
for the election of directors of such corporation or (b) to direct or
cause the direction of the management and policies of such other person,
whether through the ownership of voting securities, by contract or otherwise,
provided that neither the Agent nor any Lender (nor, in each case, any
affiliate thereof) shall be considered an Affiliate of the Parent or any
subsidiary thereof.


 


“Affiliate  Debt”
means any Indebtedness (including, without limitation, any Intercompany
Existing Indebtedness), whether now existing or hereafter incurred, owed by (a) the
Parent to any of its Subsidiaries or Affiliates (b) any Subsidiaries of
the Parent to the Parent or any of its Subsidiaries or Affiliates or (c) any
Affiliate of the Parent to the Parent or any of its Subsidiaries.


 


“Agent’s Spot Rate of Exchange”  means, in relation to two currencies, the
Agent’s spot rate of exchange for the purchase of the first-mentioned currency
with the second-mentioned currency in the London foreign exchange market at or
about 11.00 a.m. on a particular day.


 


“Agreed Business Plan” means the business
plan for the Group prepared by or on behalf of the Parent in the agreed form.


 


“Alternate Currency Incremental Term Facility Advance”
means each Incremental Term Facility Advance denominated in an Optional
Currency.


 


“Anton Acquisition” means the
acquisition by Corporate Express Norway Holdings AS from the Anton Vendors of
shares carrying more than 50 per cent. of the voting rights in Anton Target so
that the Anton Target shall become a Subsidiary (to the extent that the shares
in the Anton Target are acquired through a series of successive acquisitions,
those successive acquisitions shall be treated as if they were a single
acquisition of the Anton Target).


 


3

















 


“Anton Acquisition Funds” means a
portion of the D1 Facility in an amount of €175,000,000 (or its equivalent in
dollars).


 


“Anton Fees Letter” means the fees
letter dated on or about the Sixth Amendment and Restatement Effective Date
between the Arrangers and the Existing Borrower.


 


“Anton Target” means Andvord Tybring –
Gjedde ASA.


 


“Anton Vendor”
means, as the context requires:


 


	
  (a)

  	
   

  	
  each legal or beneficial owner of shares in the Anton Target
  immediately prior to the acquisition of such shares by any member of the
  Group; or

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  all such owners taken together.

  



 


“Applicable Currency” means, for any Tranche
of Incremental Term Facility Advances the currency (in euros or in an Optional
Currency) for such Tranche designated in the Incremental Term Facility
Commitment Agreement for such Tranche.


 


“Applicable  Excess  Cash  Flow  Percentage”
means, (a) so long as a Default or an Event of Default exists on the
respective Excess Cash Flow Payment Date, 100 per cent. and (b) so
long as no Default or Event of Default exists on the respective Excess Cash
Flow Payment Date, 50 per cent. where the Consolidated Leverage Ratio on
the last day of the respective Excess Cash Flow Payment Period is equal to
or greater than 2.50:1.00 and zero where the Consolidated Leverage Ratio on the
last day of the respective Excess Cash Flow Payment Period is less than
2.50:1.00.


 


“Applicable  Margin” means:


 


(a)                                  with
respect to the A Facility, the D Facilities and the Revolving Facility,
the A Facility Margin, the D Facilities Margin and the Revolving Facility
Margin, respectively.  From and after
each day of delivery of any certificate delivered in accordance with the
following sentence indicating an entitlement to a different margin than the A
Facility Margin, the D Facilities Margin or the Revolving Facility Margin,
as the context may require, (each, a “Start
Date”) to and including the applicable End Date described below, the
Applicable Margin shall (subject to any adjustment pursuant to the immediately
succeeding paragraph) be that set forth below opposite the Consolidated
Leverage Ratio indicated to have been achieved in any certificate delivered in
accordance with the following sentence:


 




	
  Consolidated

  Leverage Ratio

  	
   

  	
  Applicable
  Margin for

  A Facility, Revolving

  Facility and Euro

  Swingline Facility

  Advances

  	
   

  	
  Applicable
  Margin for

  Dollar Swingline

  Facility Advances

  	
   

  	
  Applicable
  Margin for

  D Facilities

  
	
  Greater than 3.50:1.00

  	
   

  	
  2.500 per cent.

  	
   

  	
  1.500 per cent.

  	
   

  	
  2.00 per cent

  
	
  Greater than 3.00:1.00 but

  less than or equal to

  3.50:1.00

  	
   

  	
  2.250 per cent.

  	
   

  	
  1.250 per cent.

  	
   

  	
  2.00 per cent

  






 


4

















 




	
  Consolidated

  Leverage Ratio

  	
   

  	
  Applicable
  Margin for

  A Facility, Revolving

  Facility and Euro

  Swingline Facility

  Advances

  	
   

  	
  Applicable
  Margin for

  Dollar Swingline

  Facility Advances

  	
   

  	
  Applicable
  Margin for

  D Facilities

  
	
  Greater than 2.50:1:00 but
  less than or equal to 3.00:1.00

  	
   

  	
  2.000 per cent.

  	
   

  	
  1.000 per cent.

  	
   

  	
  2.00 per cent

  
	
  Greater than 2.00:1.00 but
  less than or equal to 2.50:1.00

  	
   

  	
  1.750 per cent.

  	
   

  	
  0.750 per cent

  	
   

  	
  2.00 per cent

  
	
  Less than or equal to
  2.00:1.00

  	
   

  	
  1.500 per cent.

  	
   

  	
  0.500 per cent.

  	
   

  	
  2.00 per cent

  






 


The Consolidated Leverage Ratio shall be determined
based on the delivery of a certificate of the Parent by an Authorised
Representative of the Parent to the Agent (with a copy to be sent by the Agent
to each Lender), within 50 days of the last day of any fiscal quarter
of the Parent, which certificate shall set forth the calculation of the
Consolidated Leverage Ratio as at the last day of the Test Period ended
immediately prior to the relevant Start Date (but determined on a Pro Forma
Basis to give effect to any €5 Million Permitted Acquisition and any
€5 Million Asset Sale effected on or prior to the date of delivery of such
certificate) and the Applicable Margins which shall be thereafter applicable
(until same are changed or cease to apply in accordance with the following
sentences).  The Applicable Margins so determined shall
apply, except as set forth in the succeeding sentence, from the Start Date to
the earlier of (i) the date on which the next certificate is delivered to
the Agent, (ii) the date which is 50 days following the last day
of the Test Period in which the previous Start Date occurred (the “End Date”), at which time, if no
certificate has been delivered to the Agent indicating an entitlement to an
Applicable Margin other than those described in the first sentence of this
paragraph (a) (and thus commencing a new Start Date), the Applicable
Margins shall be the A Facility Margin, the D Facilities Margin and the
Revolving Facility Margin (as applicable); and


 


(b)                                  with
respect to each Tranche of the Incremental Term Facility Outstandings that
percentage set forth in, or calculated in accordance with, Clause 7 (Uncommitted Incremental Facilities) and
the relevant Incremental Term Facility Commitment Agreement provided that, if
at any time, the Applicable Margin relating to any Incremental Term Facility
Outstandings exceeds by more than 0.50 per cent. the Applicable Margin
relating to the D Facilities at such time, the Applicable Margin relating to the
D Facilities shall be automatically increased to a percentage which is
0.50 per cent. below the Applicable Margin relating to the Incremental
Term Facility Outstandings.


 


“Asset  Sale”
means any sale (including pursuant to sale-leaseback transactions (other than a
sale-leaseback transaction where the Parent or any of its Subsidiaries played a
primary financial role in the development of the relevant asset)), transfer or
other disposition by the Parent or any of its Subsidiaries to any person other
than the Parent or any Wholly-Owned Subsidiary of the Parent of any asset or
Property (including, without limitation, any Equity Interests or other
securities of another person, but excluding the sale by the Parent of its own 


 


5

















 


share capital) of
the Parent or such Subsidiary other than (a) sales, transfers or other
dispositions of inventory made in the ordinary course of business, (b) sales,
transfers or other dispositions of assets pursuant to paragraphs (c)(i) (obsolete equipment), (f) (inventory), (g) (overdue receivables) and (h) (condemned property) of Clause 26.2 (Consolidation, Merger, Purchase or Sale of Assets,
etc.), (c) sales or liquidations of Cash Equivalents, (d) sales
of Receivables Facility Assets pursuant to any Permitted Receivables
Transaction, (e) operating leases or subleases of any property by the
Parent and its Subsidiaries in the ordinary course of business, (f) the
licensing of intellectual property in the ordinary course of business, (g) any
Sale In Lieu of Liquidation and (h) any single sale of assets (or series
of related sales of assets) which generates Net Sale Proceeds of less than €250,000
(or its equivalent in other currencies).


 


“Associated Costs Rate”  means, in relation to any Advance or
Unpaid Sum, the rate determined in accordance with Schedule 6 (Associated Costs Rate).


 


“Authorisation”  means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration.


 


“Authorised Representative” means, with
respect to (i) delivering Utilisation Requests and similar notices, any
person or persons that has or have been authorised by the board of directors of
the relevant Borrower to deliver such notices pursuant to this Agreement and
that has or have appropriate signature cards on file with the Agent, (ii) delivering
financial information and officer’s certificates pursuant to this Agreement,
the chief financial officer, any treasurer or other financial officer of the
relevant Borrower or the Parent and (iii) any other matter in connection
with any Finance Document, any officer (or a person or persons so designated by
any two officers) of the Parent or the relevant Borrower.


 


“Available A Facility Commitment”  means, in relation to an A Facility
Lender, at any time and save as otherwise provided in this Agreement, its A
Facility Commitment at such time adjusted to take account of:


 


	
  (a)

  	
   

  	
  any cancellation
  or reduction of it or any transfer by such an A Facility Lender or any
  transfer to it, in each case, pursuant to the terms of this Agreement; and

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  in the case of
  any proposed Advance, the Euro Amount of any A Facility Advance which,
  pursuant to any other Utilisation Request is to be made on or before the
  proposed Utilisation Date,

  



 


less the Euro
Amount of its share of the A Facility Advances made under this Agreement,
provided always that such amount shall not be less than zero.


 


“Available Commitment”  means, in relation to a Lender, the
aggregate amount of its Available Revolving Facility Commitment, its Available
Term Facility Commitments and, subject to Clause 7 (Uncommitted Incremental Facilities) and
the relevant Incremental Facility Commitment Agreement, its Available
Incremental Term Facility Commitment or, in the context of a particular
Facility, its Available A Facility Commitment, its Available D1 Facility
Commitment, its Available D2 Facility Commitment, its Available Revolving
Facility Commitment, its Available Swingline Facility Commitment or its
Available Incremental Term Facility Commitment, as the context may require.


 


6

















 


“Available D1 Facility Commitment”  means, in relation to a D1 Facility
Lender, at any time and save as otherwise provided in this Agreement, its D1
Facility Commitment at such time adjusted to take account of:


 


	
  (a)

  	
   

  	
  any cancellation
  or reduction of it or any transfer by such D1 Facility Lender or any transfer
  to it, in each case, pursuant to the terms of this Agreement; and

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  in the case of
  any proposed Advance, the Euro Amount of any D1 Facility Advance which,
  pursuant to any other Utilisation Request is to be made on or before the
  proposed Utilisation Date,

  



 


less the Euro
Amount of its share of the D1 Facility Advances made under this Agreement,
provided always that such amount shall not be less than zero.


 


“Available D2 Facility Commitment”  means, in relation to a D2 Facility
Lender, at any time and save as otherwise provided in this Agreement, its D2
Facility Commitment at such time adjusted to take account of:


 


	
  (a)

  	
   

  	
  any cancellation
  or reduction of it or any transfer by such D2 Facility Lender or any transfer
  to it, in each case, pursuant to the terms of this Agreement; and

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  in the case of
  any proposed Advance, the Euro Amount of any D2 Facility Advance which,
  pursuant to any other Utilisation Request is to be made on or before the
  proposed Utilisation Date,

  



 


less the Euro
Amount of its share of the D2 Facility Advances made under this Agreement,
provided always that such amount shall not be less than zero.


 


“Available Facility”  means, in relation to a Facility, at any
time, the aggregate amount of the Available Commitments in respect of that
Facility at that time.


 


“Available Incremental Term Facility
Commitment”  means, in
relation to a Lender, at any time and save as otherwise provided in this
Agreement, its Incremental Term Facility Commitment at such time adjusted to
take account of:


 


	
  (a)

  	
   

  	
  any cancellation
  or reduction of it or any transfer by such Lender or any transfer to it, in
  each case, pursuant to the terms of this Agreement; and

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  in the case of
  any proposed Advance, the Euro Amount of any Incremental Term Facility
  Advance which, pursuant to any other Incremental Term Facility Commitment
  Agreement is to be made on or before the proposed Utilisation Date,

  



 


less the Euro
Amount of its share of the Incremental Term Facility Advances made under this
Agreement and the relevant Incremental Term Facility Commitment Agreement,
provided always that such amount shall not be less than zero.


 


“Available Liquidity” means, at any time, an
amount equal to the Available Revolving Facility.


 


“Available Revolving Facility”  means, at any time, the aggregate amount
of the Available Revolving Facility Commitments.


 


7

















 


“Available Revolving Facility
Commitment”  means, in
relation to a Revolving Facility Lender, at any time and save as otherwise
provided in this Agreement, its Revolving Facility Commitment, adjusted to take
account of:


 


	
  (a)

  	
   

  	
  any cancellation
  or reduction of it or any transfer by such Revolving Facility Lender or any
  transfer to it, in each case, pursuant to the terms of this Agreement; and

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  in the case of
  any proposed Utilisation, the Euro Amount of (i) any Revolving Facility
  Advance and/or Documentary Credit and/or any Swingline Facility Advance which
  pursuant to any other Utilisation Request is to be made, or as the case may
  be, issued and (ii) any Revolving Facility Advance and/or Documentary
  Credit and/or any Swingline Facility Advance which is due to be repaid or
  expire (as the case may be), in each case, on or before the proposed
  Utilisation Date,

  



 


less the Euro
Amount of its participation in the Swingline Facility Outstandings and the
Revolving Facility Outstandings at such time provided always that such amount
shall not be less than zero.


 


“Available Swingline Facility”  means, at any time, the aggregate amount
of the Available Swingline Facility Commitments.


 


“Available Swingline Facility
Commitment”  means, in
relation to a Swingline Facility Lender, at any time and save as otherwise
provided in this Agreement its Swingline Facility Commitment, adjusted to take
account of:


 


	
  (a)

  	
   

  	
  any cancellation
  or reduction of it or any transfer by such Swingline Facility Lender or any
  transfer to it, in each case, pursuant to the terms of this Agreement; and

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  in the case of
  any proposed Utilisation, the Euro Amount of (A) any Swingline Facility
  Advance which pursuant to any other Utilisation Request is to be made and
  (B) any Swingline Facility Advance which is due to be repaid, in each
  case, on or before the proposed Utilisation Date,

  



 


less the Euro
Amount of its participation in the Swingline Facility Outstandings at such
time, provided always that such amount shall not be less than zero.


 


“Available Term Facility Commitment”  means, in relation to a Lender, the
aggregate amount of its Available A Facility Commitment, its Available D1
Facility Commitment and its Available D2 Facility Commitment.


 


“BBA LIBOR” means in relation to an Optional
Currency, the British Bankers’ Association Interest Settlement Rate for the
relevant currency and specified period.


 


“Bankruptcy Code”  means Title 11 of the United States Code entitled “Bankruptcy”
as now or hereafter in effect, or any successor to it.


 


“Belgian Guarantor” means each of the
parties as set out in Part II of Schedule 1 (Original Guarantors) named as Belgian
Guarantors and any Acceding Guarantor incorporated in the Kingdom of Belgium.


 


“Beneficiary”  means, in relation to a Documentary Credit, the beneficiary
of it.


 


8

















 


“Borrowers” means the Existing Borrower and any Acceding
Borrower.


 


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


 


	
  (a)

  	
   

  	
  the interest
  which a Lender should have received for the period from the date of receipt
  of all or any part of its participation in an Advance or Unpaid Sum to the
  last day of the current Interest Period or Term in respect of that
  Advance or Unpaid Sum, had the principal amount of such Advance or Unpaid Sum
  received been paid on the last day of that Interest Period or Term,

  



 


exceeds:


 


	
  (b)

  	
   

  	
  the amount which
  that Lender would be able to obtain by placing an amount equal to the
  principal amount of such Advance or Unpaid Sum received or recovered by it on
  deposit with a leading bank in the Relevant Interbank Market for a period
  starting on the Business Day following such receipt or recovery and ending on
  the last day of the current Interest Period or Term.

  



 


“Business Day”  means a day (other than a Saturday or
Sunday) on which (a) banks generally are open for business in London and (b) if
such reference relates to a date for the payment or purchase of any sum
denominated in:


 


(i)                                    euro (A) is
a TARGET Day and (B) is a day on which banks generally are open for
business in the financial centre selected by the Agent for receipt of payments
in euro; or


 


(ii)                                an
Optional Currency, banks generally are open for business in the principal
financial centre of the country of such Optional Currency.


 


“Capital  Expenditures”
means, with respect to any person, all expenditure by such person which is
required to be treated as capital expenditure in accordance with GAAP.


 


“Capitalised  Lease” of a person means any lease of Property by such person
as lessee which would be capitalised on a balance sheet of such person prepared
in accordance with GAAP.


 


“Capitalised  Lease  Obligations”
of any person means all rental obligations which, under GAAP, are required to
be capitalised on the books of such person, in each case taken at the amount
thereof accounted for as indebtedness in accordance with GAAP.


 


“Cash”  means
any credit balances on any deposit, savings or current account with a bank and
cash in hand held in the ordinary course of business.


 


“Cash Equivalents” means:


 


	
  (a)

  	
   

  	
  Cash;

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  securities issued
  or directly fully guaranteed or insured by the governments of the United
  States, The Netherlands, the United Kingdom, France, Switzerland, Germany or
  Australia or any agency or instrumentality thereof (provided that the full
  faith and credit of the respective such government is pledged in support
  thereof) having maturities of not more than six months from the date of
  acquisition;

  



 


9

















 


	
  (c)

  	
   

  	
  certificates of
  deposit and time deposits with maturities of six months or less from the date
  of acquisition, bankers’ acceptances with maturities not exceeding six months
  and overnight bank deposits, in each case with any commercial bank
  incorporated in the United States or commercial bank of a foreign country
  recognised by the United States, in each case having capital and surplus in
  excess of €500,000,000 (or the foreign currency equivalent thereof) and has outstanding
  debt which is rated “A” (or similar equivalent thereof) or higher by at least
  one nationally recognised statistical rating organisation (as defined under
  Rule 436 under the Securities Act) or any money-market fund sponsored by
  a registered broker dealer or mutual fund distributor;

  
	
   

  	
   

  	
   

  
	
  (d)

  	
   

  	
  repurchase
  obligations with a term of not more than seven days for underlying
  securities of the types described in (b) and (c) above entered into
  with any financial institution meeting the qualifications specified in
  (c) above; and

  
	
   

  	
   

  	
   

  
	
  (e)

  	
   

  	
  commercial paper
  having one of the two highest ratings obtainable from S&P or Moody’s and
  in each case maturing within six months after the date of acquisition.

  



 


Furthermore, with
respect to Subsidiaries of the Parent which are not organised in one or more
Qualified Jurisdictions, Cash Equivalents shall include bank deposits (and
investments pursuant to operating account agreements) maintained with various
local banks in the ordinary course of business consistent with past practice of
the Parent’s Subsidiaries.


 


“Cash Interest” means, for any applicable computation period,
cash interest as shown in the Group’s consolidated financial statements.


 


“CEAL” means Corporate Express Australia
Limited, a corporation incorporated in Australia.


 


“CEAL Exception Conditions”
means, in relation to the CEAL Group at any time:


 


	
  (a)

  	
   

  	
  each member of
  the CEAL Group is a Non Wholly Owned Subsidiary of the Parent; and

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  no member of the
  CEAL Group has incurred any Indebtedness which directly or indirectly
  guarantees or supports any obligation of the Group (other than members of the
  CEAL Group).

  



 


“CEAL Group” means CEAL and its Subsidiaries.


 


“CEXP” means Corporate Express, Inc., a
Colorado Corporation.


 


“Change of Control” means:


 


	
  (a)

  	
   

  	
  any person or
  “group” (within the meaning of Sections 13(d) and 14(d) under the
  Securities Exchange Act, as in effect on the Effective Date), other than as a
  result of the ownership of Parent Preference Shares A and Parent Preference
  Shares B by the respective Permitted Holders thereof, shall (i) have
  acquired beneficial ownership of 35 per cent. or more on a fully diluted
  basis of the voting and/or economic interest in the Parent’s share capital or
  (ii) obtained the power (whether or not exercised) to elect a majority
  of the Parent’s directors;

  



 


10

















 


	
  (b)

  	
   

  	
  the board of
  directors of the Parent shall cease to consist of a majority of Continuing
  Directors;

  
	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  any “change of
  control” or similar event under, and as defined in, the Senior Subordinated
  Note Indenture, the New Senior Subordinated Note Indenture, the Senior
  Subordinated Convertible Bond Agency Agreement, the documentation relating to
  any Permitted Subordinated Indebtedness or any Permitted Refinancing
  Indebtedness or any issue of Parent Preferred Stock (including, without
  limitation, each of the Parent Preference Shares A and the Parent Preference
  Shares B), in each case to the extent then outstanding, shall occur; or

  
	
   

  	
   

  	
   

  
	
  (d)

  	
   

  	
  the Parent shall
  at any time cease to own beneficially and of record, directly or indirectly
  through one or more Wholly-Owned Subsidiaries of the Parent, free and clear
  of all Liens (other than those created pursuant to the Finance Documents),
  other encumbrances, or voting agreements, restrictions or trusts of any kind,
  100 per cent. of the outstanding Equity Interests of each Borrower on a
  fully diluted basis and shares representing the right to elect a majority of
  the directors of each Borrower.

  



 


“Code” means the U.S. Internal Revenue Code
of 1986, as amended from time to time, and the cases and applicable regulations
and rulings promulgated or issued thereunder.  Section references
to the Code are to the Code, as in effect as at the Effective Date and any
subsequent provisions of the Code, amendatory thereof, supplemental thereto or
substituted therefor.


 


“Collateral” means all property (whether
real or personal, movable or immovable) with respect to which any security
interests have been granted (or purported to be granted) pursuant to any
Security Document (including any Additional Security Document).


 


“Commitment”  means, in relation to a Lender, its A Facility Commitment,
its D1 Facility Commitment, its D2 Facility Commitment, its Revolving Facility
Commitment, its Swingline Facility Commitment and/or, subject to Clause 7
(Uncommitted Incremental Facilities)
its Incremental Revolving Facility Commitment and/or its Incremental Term
Facility Commitment, as the context may require.


 


“Commitment Letter”  means the letter dated 13 November 2003
from the Arrangers to the Parent and the Existing Borrower with respect to
arranging the Facilities.


 


“Compliance Certificate”  means a certificate substantially in the
form set out in Part I of Schedule 8 (Form of
Auditors’ Confirmation) (or such other similar form as the Agent
shall agree with the Parent and the relevant auditors) or Part II of
Schedule 8 (Form of Directors’ Compliance
Certificate) as appropriate.


 


“Consolidated  Current  Assets”
means, at any time, the current assets of the Parent and its Consolidated
Subsidiaries at such time determined on a consolidated basis.


 


“Consolidated Current Liabilities” means, at
any time, the consolidated current liabilities of the Parent and its
Consolidated Subsidiaries at such time, but excluding (i) the current
portion of any Indebtedness under this Agreement, of any Permitted Receivables
Transaction Indebtedness and of any other long-term Indebtedness which would
otherwise be included therein, (ii) accrued but unpaid interest with
respect to the Indebtedness and (iii) the current portion of Indebtedness
constituting Capitalised Lease Obligations.


 


11

















 


“Consolidated EBIT” means, for any applicable computation
period, EBIT (Earnings Before Interest and Tax) as shown on the Group’s
consolidated income statement.


 


“Consolidated EBITDA”
means, for any applicable computation period, Consolidated EBIT for such period
plus, to the extent deducted in determining Consolidated EBIT for such period,
impairment costs, amortisation and depreciation expenses for such period.  Such
calculation shall exclude the effect on such Consolidated EBIT of:


 


	
  (a)

  	
   

  	
  non-cash
  extraordinary, non-cash unusual and non-cash non-recurring gains, losses and
  charges occurring during such period;

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  non-recurring
  charges related to assimilation of persons acquired, and the expenses of,
  Permitted Acquisitions, including expenses incurred in connection with the
  retirement of Indebtedness of persons so acquired;

  
	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  the write-off of
  debt financing fees associated with terminated credit facilities;

  
	
   

  	
   

  	
   

  
	
  (d)

  	
   

  	
  any non-cash
  pre-acquisition write-offs or similar charges incurred by a person acquired
  pursuant to a Permitted Acquisition that as the result of a pooling of
  interest are included in the Parent’s consolidated financial statements for
  the period;

  
	
   

  	
   

  	
   

  
	
  (e)

  	
   

  	
  any non-cash
  write-offs or similar non-cash charges which are recorded following a
  Permitted Acquisition in the Parent’s consolidated financial statements with
  respect to an acquired person’s assets to the extent such amounts were
  accounted for in the first twelve months following the date such acquisition
  was consummated;

  
	
   

  	
   

  	
   

  
	
  (f)

  	
   

  	
  any restoration
  to income of any contingency reserve, except to the extent that provision for
  such reserve was made out of Consolidated Net Income accrued at any time
  after the Initial Borrowing Date;

  
	
   

  	
   

  	
   

  
	
  (g)

  	
   

  	
  any profits (or
  adding back losses) attributable to minority interests in the Group;

  
	
   

  	
   

  	
   

  
	
  (h)

  	
   

  	
  one-time charges
  (including, without limitation, restructuring charges and any upfront fees
  related to these Facilities, the refinancing of the Senior Subordinated Notes
  and the issue of the Senior Subordinated Convertible Bonds) occurring during
  such period to the extent not already included above; and

  
	
   

  	
   

  	
   

  
	
  (i)

  	
   

  	
  share based
  payments,

  



 


provided that
Consolidated EBITDA for any period shall be reduced by the aggregate amount of
all cash payments made during such period in respect of any amounts previously
excluded pursuant to sub-paragraphs (i), (iv), (v), and (vii) of this
sentence, whether in such period or a prior period, and provided further (a) that
for the purposes of all calculations of Consolidated EBIT and other
calculations relevant to this definition of Consolidated EBITDA (including the
calculation of Consolidated EBITDA itself) (i) the earnings before
interest and tax of any Non-Consolidated Person shall be included only to the
extent of the payment of cash dividends or cash distributions by such
Non-Consolidated Person to the Parent or a Subsidiary thereof during such
period, (ii) the earnings before interest and tax of any Non-Consolidated
Person shall be excluded to the extent that the declaration or payment of cash
dividends or similar distributions by that Non-Consolidated Person of those
earnings is not at the date of determination permitted by operation of its
charter or any agreement, instrument or law applicable to such Non-Consolidated
Person, and (iii) the earnings before interest and


 


12














 


tax of any other
person acquired by a Non-Consolidated Person or a Subsidiary of a
Non-Consolidated Person in a pooling of interests transaction for any period
prior to the date of such acquisition shall be excluded, and (b) that
values of income, losses or any other variables in respect of any Subsidiary of
the Parent (excluding the CEAL Group) shall be reduced pro rata to reflect the
proportion of the economic interest in such Subsidiary that is directly or
indirectly owned by the Parent.


 


“Consolidated EBITDAR” means, for any
period, Consolidated EBITDA for such period, adjusted by adding thereto the
amount of all rent and lease expense included as a component of Consolidated
Fixed Charges for such period pursuant to sub-paragraph (ii) of the
definition thereof and which was deducted in calculating Consolidated EBIT (and
not already added back in determining Consolidated EBITDA) for such period.


 


“Consolidated Fixed Charge Coverage Ratio”
for any period, means the ratio of Consolidated EBITDAR to Consolidated Fixed
Charges for such period.


 


“Consolidated Fixed Charges” means, for any
period, the sum, without duplication, of (i) Consolidated Interest Expense
for such period, (ii) the amount of all rent expense of, and lease
payments expensed by, the Parent and its Subsidiaries with respect to Real
Property (including land, buildings, improvements and fixtures, including
Leaseholds) and vehicles, determined on a consolidated basis for such period, (iii) the
amount of all Capital Expenditures made by the Parent and its Subsidiaries
determined on a consolidated basis for such period (other than (x) Capital
Expenditures to the extent made pursuant to Clause 24.1(b) (Capital Expenditures) and (y) any
Capital Expenditures paid in respect of Capitalised Leases), (iv) all
Dividends (excluding dividends paid-in-kind through the issuance of additional
shares of share capital of the Parent) actually paid by the Parent in relation
to the Parent Preference Shares A and the Parent Common Stock during such
period and (v) the scheduled principal amount of all amortisation payments
with respect to the Term Facilities for such period (as determined on the first
day of the respective period).


 


“Consolidated Indebtedness” means, as at any
date of determination, the aggregate stated balance sheet amount of all
Indebtedness of the Parent and its Subsidiaries (excluding (i) all
Contingent Obligations other than Contingent Obligations which are required, in
accordance with GAAP, to be reflected on the consolidated balance sheet of the Parent
and its Subsidiaries (ii) obligations under any Hedging Agreements and
Other Hedging Agreements or other similar types of agreements and (iii) Indebtedness
in respect of Capitalised Leases, but including and taking account of
receivables and payables under currency swaps, forward foreign exchange
transactions or other agreements pursuant to which foreign exchange risk is
hedged) on a consolidated basis as determined in accordance with GAAP, provided
that notwithstanding any contrary treatment pursuant to GAAP (and without
double counting), (a) the aggregate amount of guarantees or letters of
credit issued in support of Indebtedness of persons which are not Subsidiaries
of the Parent shall at all times be included as a component of Consolidated
Indebtedness, (b) the amount of Permitted Receivables Transaction
Outstandings at any time shall be included as a component of Consolidated
Indebtedness, (c) any fees incurred in connection with raising such
Indebtedness shall be added back (to the extent deducted in determining the
balance sheet amount of such Indebtedness), (d) the equity component of
any convertible bonds shall be included as a component of Consolidated
Indebtedness and (e) to the extent Consolidated Indebtedness does not
already do so, Indebtedness of any Subsidiary of the Parent shall be reduced
pro rata to reflect the proportion of the economic interest held in such
Subsidiary.


 


13

















 


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


 


“Consolidated Interest Expense” means, for
any period, Cash Interest for such period less, to the extent included in the
determination of Cash Interest, (a) the interest element of Capitalised
Lease Obligations and (b) the aggregate amount of interest income of
members of the Group (other than from other members of the Group) for such
period.  Notwithstanding
anything to the contrary contained above, (x) to the extent Consolidated
Interest Expense for any period does not already include all Receivables
Facility Financing Costs for such period, the amount of such Receivables
Facility Financing Costs shall be added to (and form part of) Consolidated
Interest Expense and (y) to the extent Consolidated Interest Expense does
not already do so, Cash Interest of any Subsidiary of the Parent shall be
reduced pro rata to reflect the proportion of the economic interest held in
such Subsidiary.  Notwithstanding
anything to the contrary contained above, to the extent any Test Period begins
before the Initial Borrowing Date, Consolidated Interest Expense as calculated
above for each such period shall instead be deemed to be for a period as set
out in column 1 below and for an amount equal to the product of such number of
times as set out in column 2 below and the Consolidated Interest Expense as
calculated above.


 




	
  Column 1 - Deemed Test Period

  	
   

  	
  Column 2 – Multiplier

  	
   

  
	
  For the period
  beginning on 1 January 2004 and ending on 31 March 2004.

  	
   

  	
  4

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  For the period
  beginning on 1 January 2004 and ending on 30 June 2004.

  	
   

  	
  2

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  For the period
  beginning on 1 January 2004 and ending on
  30 September 2004.

  	
   

  	
  1.33

  	
   

  






 


“Consolidated Leverage Ratio” means, on any
date, the ratio of (i) Consolidated Indebtedness on such date to (ii) Consolidated
EBITDA for the period of four consecutive fiscal quarters most recently ended
on or prior to such date, in each case taken as one accounting period, provided
that (x) to the extent any €5 Million Permitted Acquisition or any
€5 Million Asset Sale (for purposes of the Consolidated Leverage Ratio)
has occurred during the relevant Test Period, Consolidated EBITDA shall be
determined for the respective Test Period on a Pro Forma Basis for such
occurrences and (y) for the purpose of calculating the Consolidated
Leverage Ratio, freely available cash balances of the Group held with a Lender
in an aggregate amount not to exceed €50,000,000 shall be deducted from the
amount of Consolidated Indebtedness.


 


“Consolidated Net Income” means, for any
period, the net income (or loss) of the Parent and its Consolidated
Subsidiaries for such period, determined on a consolidated basis (after any
deduction for minority interests), provided that (a) in
determining Consolidated Net Income, (i) the net income of any
Non-Consolidated Person shall be included only to the extent of the payment of
cash dividends or cash distributions by such Non-Consolidated Person to the
Parent or a Subsidiary thereof during such period, (ii) the net income of
any Non-Consolidated Person shall be excluded to the extent that the
declaration or payment of cash dividends or similar distributions by that
Non-Consolidated Person of that net income is not at the date of determination
permitted by operation of its charter or any agreement, 


 


14

















 


instrument or law
applicable to such Non-Consolidated Person, (iii) the net income (or loss)
of any other person acquired by a Non-Consolidated Person or a Subsidiary of a
Non-Consolidated Person in a pooling of interests transaction for any period
prior to the date of such acquisition shall be excluded and (iv) after tax
gains and losses from Asset Sales (without regard to the exceptions in (d) or
(e) in the proviso of the definition thereof) or abandonments or reserves
relating thereto shall be excluded, and (b) values of income, losses or
any other variables in respect of any Subsidiary of the Parent or any person
that is accounted for by the equity method of accounting (excluding the CEAL
Group) shall be reduced pro rata to reflect the proportion of the economic
interest in such Subsidiary or person.


 


“Consolidated Net Income Available to Common”
means, for any period, Consolidated Net Income for such period less (to the
extent same have not already been deducted in determining such Consolidated Net
Income) the amount of all Dividends (excluding Dividend paid pursuant to
Clause 26.3(f) (Restricted
Payments) to the extent representing a return of the issue price
rather than the payment of accrued dividends thereon) paid or accrued (whether
or not paid, and including amounts attributable to dividends paid-in-kind)
during the respective period with respect to Preferred Stock (including,
without limitation, all such amounts attributable to the Parent Preference
Shares A, the Parent Preference Shares B (after any issuance thereof) and any
other Preferred Stock of Parent (from time to time issued).


 


“Consolidated Subsidiaries” means, as to any
person, all Subsidiaries of such person which are consolidated with such person
for financial reporting purposes in accordance with GAAP.


 


“Consolidated Tangible Assets” means, at any
time, the total consolidated assets of the Parent and its Consolidated
Subsidiaries as same would be shown on a consolidated balance sheet of the
Parent prepared in accordance with GAAP, provided that all intangible assets
(in any event including good will) shall be excluded in making such
determinations.


 


“Contingent Obligation” means, as to any
person, any obligation of such person guaranteeing or intended to guarantee any
Indebtedness, leases or dividends (“primary
obligations”) of any other person (the “primary obligor”) in any manner, whether directly or
indirectly or to otherwise assure or hold harmless the holder of such
primary obligation against loss in respect thereof, provided, however, that the
term Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business.  The amount of any Contingent Obligation shall
be deemed to be an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Contingent Obligation is made or,
if not stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such person is required to perform thereunder) as
determined by such person in good faith.


 


“Continuing Director” means a director who
is either a member of the Supervisory Board of the Parent on the Initial Borrowing
Date or who became a member of the Supervisory Board of the Parent subsequent
to the Initial Borrowing Date and whose election, or nomination for election by
the Parent’s shareholders, was duly approved by a majority of the Continuing
Directors then on the Supervisory Board of the Parent.


 


“D Facilities” means the D1 Facility and the
D2 Facility and “D Facility” means
any of them as the context may require from time to time.


 


15

















 


“D Facilities Margin”  means, in relation to the D Facility
Advances, 1.75 per cent. per annum.


 


“D Facilities Repayment Date” has the
meaning ascribed to it in Clause 10.3 (Repayment
of D Facility Outstandings).


 


“D Facility Advances” means the D1 Facility
Advances and the D2 Facility Advances.


 


“D Facility Commitments” means, at any time,
the aggregate of the D1 Facility Commitments and the D2 Facility
Commitments.


 


“D Facility Lenders” means the D1 Facility
Lenders and the D2 Facility Lenders and “D Facility
Lender” means any of them as the context may require from time to
time.


 


“D Facility Outstandings” means the D1
Facility Outstandings and the D2 Facility Outstandings.


 


“D1 Facility” has the meaning ascribed to that term in Clause
2.1(d) (The Facilities).


 


“D1 Facility Advance”  means an advance (as from time to time
reduced by repayment) made or to be made by the D1 Facility Lenders under the
D1 Facility or arising in respect of the D1 Facility under Clause 15.3 (Division of Term Facility Advances).


 


“D1 Facility Commitment”  means, in relation to a D1 Facility Lender
at any time, and save as otherwise provided in this Agreement, the amount
agreed between such D1 Facility Lender and the Agent and notified to the
Parent, or as specified in the Transfer Certificate pursuant to which such
Lender becomes a party to this Agreement.


 


“D1 Facility Lender”  means a person which:


 


(a)           is a
participant in the D1 Facility immediately prior to the Sixth Amendment and
Restatement Effective Date; or


 


(b)           has
become a party to this Agreement in accordance with the provisions of
Clause 39 (Assignments and Transfers),


 


which in each case
has not ceased to be a party to this Agreement in accordance with the terms of
this Agreement.


 


“D1 Facility Outstandings”  means, at any time, the aggregate principal
amount of the D1 Facility Advances outstanding under this Agreement.


 


“D2 Facility”  has the meaning ascribed to that term in Clause 2.1(e) (The Facilities).


 


“D2 Facility Advance”  means an advance (as from time to time
reduced by repayment) made or to be made by the D2 Facility Lenders under the
D2 Facility or arising in respect of the D2 Facility under Clause 15.3(Division of Term Facility Advances).


 


“D2 Facility Commitment”  means, in relation to a D2 Facility Lender
at any time, and save as otherwise provided in this Agreement, the amount
agreed between such D2 Facility Lender and the Agent and notified to the
Parent, or as specified in the Transfer Certificate pursuant to which such
Lender becomes a party to this Agreement.


 


16

















 


“D2 Facility Lender”  means a person which:


 


(a)           is a
participant in the D2 Facility immediately prior to the Sixth Amendment and
Restatement Effective Date; or


 


(b)           has
become a party to this Agreement in accordance with the provisions of
Clause 39 (Assignments and Transfers),


 


which in each case
has not ceased to be a party to this Agreement in accordance with the terms of
this Agreement.


 


“D2 Facility Outstandings” means, at any
time, the aggregate principal amount of the D2 Facility Advances
outstanding under this Agreement.


 


“Default”  means
an Event of Default or any event or circumstance which (with the passage of
time, the expiry of a grace period, the giving of notice, the making of any
determination under any of the Finance Documents or any combination of any of
the foregoing) would be an Event of Default.


 


“Defaulting Lender” means any Lender with
respect to which a Lender Default is in effect.


 


“Denver Warehouse” means the
property located at 13800 E. 39th Avenue, Aurora, CO, USA.


 


“Disruption Event” means
either or both of:


 


	
  (a)

  	
   

  	
  a material disruption to those payment or communications systems or to
  those financial markets which are, in each case, required to operate in order
  for payments to be made in connection with the Facilities (or otherwise in
  order for the transactions contemplated by the Finance Documents to be
  carried out) which disruption is not caused by, and is beyond the control of,
  any of the Parties; or

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  the occurrence of any other event which results in a disruption (of a
  technical or systems-related nature) to the treasury or payments operations
  of a Party preventing that, or any other Party:

  



 


	
  (i)

  	
   

  	
  from performing its payment obligations under the Finance Documents;
  and

  
	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  from communicating with other Parties in accordance with the terms of
  the Finance Documents,

  



 


and which (in either case) is not caused by, and is beyond the control
of, the Party whose operations are disrupted.


 


“Dividend” means, with respect to any
person, that such person has declared or paid a dividend (excluding dividends
paid by the Parent in the Parent Common Stock and Parent Preferred Stock) or
returned any equity capital to its stockholders, partners or members or
authorised or made any other distribution, payment or delivery of property
(other than ordinary share capital of such person) or cash to its stockholders,
partners or members as such, or redeemed, retired, purchased or otherwise
acquired, directly or indirectly, for a consideration any shares of any class of
its share capital or any partnership or membership interests outstanding (or
any options or warrants issued by such person with respect to its 


 


17

















 


share capital or
other Equity Interests), or set aside any funds for any of the foregoing
purposes, or shall have permitted any of its Subsidiaries to purchase or
otherwise acquire for a consideration any shares of any class of the share
capital or any partnership or membership interests of such person outstanding
(or any options or warrants issued by such person with respect to its share
capital or other Equity Interests).


 


“Documentary Credit”  means a letter of credit, bank guarantee
or other documentary credit issued or to be issued by an L/C Bank pursuant to
Clause 4.1 (Conditions to Utilisation) or
assumed in accordance with Clause 5.12 (Assumption
of Existing Documentary Credits) and, where relevant, issued in
conformity with Uniform Customs and Practice for Documentary Credits (1993
Revision) ICC Publication No. 500.


 


“Dollar Swingline Facility Advance” means an
advance denominated in dollars as from time to time reduced by repayment made
or to be made by the Swingline Facility Lenders under the Swingline Facility.


 


“Dollar Swingline Facility Outstandings” means,
at any time, the aggregate principal amount of the Dollar Swingline Facility
Advances outstanding under this Agreement.


 


“Dormant Subsidiary” means a member of the Group which does
not trade (for itself or as agent for any person) and does not own, legally or
beneficially, assets (including, without limitation, indebtedness owed to it)
which in aggregate have a value of €1,000 or more or its equivalent in other
currencies.


 


“Double Taxation Treaty”  means in relation to a payment of interest
on an Advance made to a particular Borrower, any convention or agreement
between the government of the Relevant Tax Jurisdiction of that Borrower and
any other government for the avoidance of double taxation with respect to taxes
on income and capital gains which makes provision in relation to interest.


 


“Dutch Guarantor” means each of the parties
as set out in Part II of Schedule 1 (Original
Guarantors) named as Dutch Guarantors and any Acceding Guarantor
incorporated in The Netherlands.


 


“Effective  Date”
means the date of this Agreement.


 


“Eligible Institution” means and includes a
commercial bank, a finance company, an insurance company, a financial
institution, fund or other person which regularly lends, or purchases
interests, in loans or extensions of credit of the types made pursuant to this
Agreement, but in any event excluding the Parent and its Subsidiaries and
Affiliates.


 


“EMU  Legislation”
means the legislative measures of the European Union for the introduction of
changeover to or operation of the euro in one or more member states being in
part legislative measures to implement the third stage of the European Monetary
Union.


 


“End  Date”
has the meaning ascribed to that term in the definition of “Applicable Margin”.


 


“Environment”  means living organisms including the ecological systems of
which they form part and the following media:


 


(a)           air
(including air within natural or man-made structures, whether above or below
ground);


 


18

















 


(b)           water
(including territorial, coastal and inland waters, water under or within land
and water in drains and sewers); and


 


(c)           land
(including land under water).


 


“Environmental  Claims” means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, directives, claims, liens,
notices of non-compliance or violation, investigations or proceedings pursuant
to or under any Environmental Law or any permit issued, or any approval given,
under any such Environmental Law or Environmental Licence.


 


“Environmental  Law” means all laws and regulations of any relevant
jurisdiction which:


 


(a)           have
as a purpose or effect the protection of, and/or prevention of harm or damage
to, the Environment;


 


(b)           provide
remedies or compensation for harm or damage to the Environment; and


 


(c)           relate
to Hazardous Materials or health or safety matters.


 


“Environmental Licence” means any
Authorisations required at any time under Environmental Law.


 


“Equity  Interests”
means, in relation to any person, any and all shares, interests, rights to
purchase, warrants, options, participation or other equivalents of or interest
in (however designated) equity of such person, including any preferred stock,
any limited or general partnership interest and any limited liability company
membership interest.


 


“ERISA” means the U.S. Employee Retirement
Income Security Act of 1974, as amended from time to time, and the regulations
promulgated and rulings issued thereunder. 
Section references to ERISA are to ERISA, as in effect as at the
Effective Date and any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.


 


“ERISA  Affiliate”
means each person (as defined in Section 3(9) of ERISA) which
together with the Parent or a Subsidiary of the Parent would be deemed to be a “single
employer” (i) within the meaning of Section 414(b), (c), (m) or (o) of
the Code or (ii) as a result of the Parent or a Subsidiary of the Parent
being or having been a general partner of such person.


 


“EURIBOR”  means,
in relation to any amount owed by an Obligor under this Agreement in euro on
which interest for a given period is to accrue:


 


	
  (a)

  	
   

  	
  the rate per
  annum for deposits in euro which appears on the Relevant Page for such
  period at or about 11.00 a.m. (Brussels time) on the Quotation Date for
  such period; or

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  if no such rate
  is displayed and the Agent shall not have selected an alternative service on
  which such rate is displayed, the arithmetic mean (rounded upwards, if not
  already such a multiple, to 4 decimal places) of the rates (as notified to
  the Agent) at which each of the Reference Banks was offering to prime banks
  in the European interbank market deposits in euro for such period at or about
  11.00 a.m. (Brussels time) on the Quotation Date for such period.

  



 


19

















 


“Euro Amount”  means:


 


	
  (a)

  	
   

  	
  in relation to an
  Advance, (i) if such Advance is denominated in euro, the amount of such
  Advance or (ii) if such Advance is denominated in a currency other than
  euro, the equivalent in euro of such Advance, as the amount specified in the
  Utilisation Request for that Advance as adjusted, if necessary, in accordance
  with the terms of this Agreement and to reflect any repayment, consolidation
  or division of that Advance;

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  in relation to a
  Documentary Credit, (i) if such Documentary Credit is denominated in
  euro, the Outstanding L/C Amount in relation to it at such time or
  (ii) if such Documentary Credit is not denominated in euro, the
  equivalent in euro of the Outstanding L/C Amount at such time, calculated as
  at the later of (A) the date which falls 2 Business Days before its
  issue date or any renewal date or (B) the date of any revaluation
  pursuant to Clause 5.3 (Revaluation of
  Documentary Credits); and

  
	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  in relation to
  any Outstandings, the aggregate of the Euro Amounts (calculated in accordance
  with paragraphs (a) and (b) above) of each outstanding Advance
  and/or Outstanding L/C Amount, made under the relevant Facility or Facilities
  (as the case may be), (i) if such Outstandings are denominated in euro,
  the aggregate amount in euro of it at such time or (ii) if such
  Outstandings are not denominated in euro, the equivalent in euro of the
  aggregate amount of it at such time.

  



 


“Euro Swingline Facility Advance”  means an advance denominated in euro as
from time to time reduced by repayment made or to be made by the Swingline
Facility Lenders under the Swingline Facility.


 


“Euro Swingline Facility Outstanding”  means, at any time, the aggregate
principal amount of the Euro Swingline Facility Advances outstanding under this
Agreement.


 


“Europcenter” means Buhrmann Shared Service
Center (Europe) N.V. a corporation organised under the laws of the Kingdom of
Belgium, formerly known as Buhrmann Europcenter N.V.


 


“Event of Default”  means any of the events or circumstances described as such in
Clause 28 (Events of Default).


 


“Excess Cash Flow” means, for any period,
the amount (if any) by which


 


(a)           the
sum of:


 


	
  (i)

  	
   

  	
  Adjusted
  Consolidated Net Income (excluding any amounts of Consolidated Net Income
  attributable to CEAL and its Subsidiaries but including any cash Dividends
  actually received from CEAL only) for such period; and

  
	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  the decrease, if
  any, in Adjusted Consolidated Working Capital (excluding any decrease in
  Adjusted Consolidated Working Capital attributable to CEAL and its
  Subsidiaries) from the first day to the last day of such period,

  



 


20

















 


exceeds:


 


	
  (b)

  	
   

  	
  the sum of:

  



 


	
  (i)

  	
   

  	
  the aggregate
  amount of all Capital Expenditures made by the Parent and its Subsidiaries
  during such period (other than Capital Expenditures (x) to the extent
  financed with existing moneys and (y) paid in respect of Capitalised
  Leases);

  
	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  the aggregate
  amount of all Permitted Acquisitions made by the Parent and its Subsidiaries
  during such period (other than Permitted Acquisitions to the extent financed
  with existing moneys);

  
	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  the aggregate
  amount of permanent principal payments of Indebtedness for borrowed money of
  the Parent and its Subsidiaries during such period (other than, without
  double counting, (A) repayments to the extent made with existing moneys,
  (B) repayments of the Existing Borrower’s 121⁄4 per cent. Senior
  Subordinated Notes due 2009 to the extent made with cash on the consolidated
  balance sheet of the Parent and its Subsidiaries and (C) repayments of
  Outstandings, unless such repayments of Outstandings were (1) required
  as a result of a Scheduled Repayment and paid with internally generated funds
  or (2) made as a voluntary prepayment with internally generated funds
  (but in the case of a voluntary prepayment of the Revolving Facility, only to
  the extent accompanied by a voluntary reduction to the Revolving Facility
  Commitments));

  
	
   

  	
   

  	
   

  
	
  (iv)

  	
   

  	
  the increase, if
  any, in Adjusted Consolidated Working Capital (excluding any increase in
  Adjusted Consolidated Working Capital attributable to CEAL and its
  Subsidiaries) from the first day to the last day of such period;

  
	
   

  	
   

  	
   

  
	
  (v)

  	
   

  	
  the aggregate
  amount of cash Dividends paid by the Parent during such period pursuant to
  paragraph (g) of Clause 26.3 (Restricted
  Payments), as the case may be;

  
	
   

  	
   

  	
   

  
	
  (vi)

  	
   

  	
  the net amount of
  Investments (i.e., the amount invested during the respective period, net of
  any returns on investments previously made pursuant to said sections during
  said period) pursuant to Clause 26.5(g)(ii) and/or (n) (Advances, Investments and Loans); and

  
	
   

  	
   

  	
   

  
	
  (vii)

  	
   

  	
  one-time charges
  (including, without limitation, restructuring charges and any upfront fees
  related to these Facilities, the refinancing of the Senior Subordinated
  Notes, the issue of the Senior Subordinated Convertible Bonds, the issue of
  the New Senior Subordinated Notes and the issue of Parent Common Stock
  specifically for the repurchase of the Parent Preference Shares C) occurring
  during such period to the extent not already included above.

  



 


For the purposes of
this definition only:


 


(A)          “existing moneys” means equity proceeds,
share capital, Asset Sales proceeds, insurance proceeds and/or Indebtedness;
and


 


21

















 


	
  (B)

  	
   

  	
  in calculating
  Adjusted Consolidated Working Capital, any amounts expressed in currencies
  other than euros shall be converted into euros (as shown on Reuters ECB
  page 37 or, if same does not provide such exchange rate, on such other
  basis as may be satisfactory to the Agent) for the exchange of such currency
  into euros for the last day of the fiscal year of the Parent.

  



 


“Excess Cash Flow Payment Date” means the
date occurring 105 days after the last day of each fiscal year of the
Parent, with the first Excess Cash Flow Payment Date to occur on the 105th day
after the last day of the fiscal year of the Parent ending closest to
31 December 2005.


 


“Excess Cash Flow Payment Period” means,
with respect to the repayment required on each Excess Cash Flow Payment Date,
the immediately preceding fiscal year of the Parent.


 


“Existing Credit Agreement” means the Credit
Agreement dated 26 October 1999 between, inter alios,
the Parent, the Existing Borrower, the banks and financial institutions named
therein and the Bankers Trust Company as administrative agent as amended,
modified or supplemented from time to time.


 


“Existing Documentary Credit” means each
letter of credit, bank guarantee or other documentary credit as set out in Section C
of Part II of Schedule 10 (Existing
Indebtedness) each as issued pursuant to or existing under the
Existing Credit Agreement and outstanding on the Initial Borrowing Date.


 


“Existing Indebtedness”  means all Third Party Existing
Indebtedness and all Intercompany Existing Indebtedness existing as at the
Effective Date each as set out in Part II of Schedule 10 (Existing Indebtedness).


 


“Existing Lien”  means the list of Liens existing as at the Effective Date set
out in Part I of Schedule 10 (Existing Liens).


 


“Expiry Date”  means, in relation to any Documentary Credit granted under
this Agreement, the date stated in it to be its expiry date or the latest date
on which demand may be made under it.


 


“Facilities”  means the Term Facilities, the Revolving Facility, the
Swingline Facility and (subject to Clause 7 (Uncommitted
Incremental Facilities)) the Incremental Revolving Facility and the
Incremental Term Facility granted to the Borrowers in this Agreement, and “Facility” means any of them as the context
may require.


 


“Facilities Obligations” means all amounts
owing to the Finance Parties pursuant to the terms of this Agreement or any
other Finance Document.


 


“Facility Office”  means:


 


	
  (a)

  	
   

  	
  in relation to the Agent,
  the office identified with its signature below or such other office as it
  may, from time to time select for performance of its agency function under
  this Agreement; and

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  in relation to a
  Lender, the office from time to time designated by it to the Agent for the
  purposes of this Agreement (or, in the case of a Transferee, at the end of
  the

  



 


22

















 


Transfer Certificate to which it is a party as Transferee) or such other
office as such Lender may from time to time select.


 


“Fair  Market
Value” means, with respect to any
asset, the price at which a willing buyer, not an Affiliate of the seller, and
a willing seller who does not have to sell, would agree to purchase and sell
such asset, as determined in good faith by the board of directors or other governing
body or, pursuant to a specific delegation of authority by such board of
directors or governing body, a designated senior executive officer, of the
Parent or the Subsidiary of the Parent selling such asset.


 


“Federal Funds Rate” means in relation to
any day, the rate per annum equal to:


 


	
  (a)

  	
   

  	
  the weighted
  average of the rates on overnight Federal Funds transactions with members of
  the US Federal Reserve System arranged by Federal Funds brokers, as published
  for that day (or, if that day is not a New York Business Day, for
  the immediately preceding New York Business Day) by the Federal Reserve Bank
  of New York; or

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  if a rate is not
  published for that day or immediately preceding New York Business Day,
  the average of the quotations for that day on those transactions
  received by the Agent from three Federal Funds brokers of recognised standing
  selected by the Agent.

  



 


“Fee Letters”  means the fee letters referred to in Clauses 17.2 (Underwriting Fee) and 17.3 (Agency Fee).


 


“€5 Million Asset Sale” means any Asset Sale
where the aggregate consideration (taking the Fair Market Value of any non-cash
consideration) received by the Parent and its Subsidiaries in connection
therewith is equal to or in excess of €5,000,000 (or its equivalent in other currencies).


 


“€5 Million Permitted Acquisition” means
each Permitted Acquisition where the aggregate consideration paid (or which may
be paid) in connection therewith (including any deferred compensation
arrangements, the principal amount of Seller Debt and/or Permitted Acquired
Debt and the Fair Market Value of all Equity Interests in the Parent issued as
consideration in connection therewith) exceeds €5,000,000 (or its equivalent in
other currencies).


 


“Fifth Amendment and
Restatement Deed” means the Amendment and Restatement Deed dated
30 November 2005 between, inter alios,
the Obligors’ Agent, the Guarantors, the Agent, the Security Trustee and the D
Facility Lenders.


 


“Fifth Amendment and
Restatement Effective Date” has the meaning ascribed to that term in
the Fifth Amendment and Restatement Deed.


 


“Final Maturity Date” means


 


	
  (a)

  	
   

  	
  in respect of the
  Revolving Facility and the Incremental Revolving Facility, the date falling
  60 months after the date of this Agreement;

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  in respect of the
  A Facility, subject to Clause 10.1 (Repayment
  of A Facility Outstandings), 31 December 2009;

  



 


23

















 


(c)           in
respect of the D Facilities, subject to Clause 10.3 (Repayment of D Facility Outstandings), 31 December 2010;
and


 


(d)           in
respect of the Incremental Term Facility, the 
Incremental Term Facility Maturity Date.


 


“Finance Documents”  means:


 


(a)           this
Agreement, any Documentary Credit, any Accession Notices, Transfer Certificates
and the Fee Letters;


 


(b)           any
Incremental Facility Commitment Agreement;


 


(c)           the
Security Documents;


 


(d)           the
Intercreditor Deed;


 


(e)           the
Hedging Agreements;


 


(f)            any
Additional Security Document; and


 


(g)           any
other agreement or document designated a “Finance
Document” in writing by the Parent and the Agent.


 


“Finance Parties”  means the Agent, the Arrangers, the Security Trustee, the
Lenders and each Hedge Counterparty to a Hedging Agreement and “Finance Party” means any of them.


 


“GAAP” means in relation to any financial
statement to be delivered in accordance with this Agreement generally accepted
accounting principles in the Netherlands, including without limitation IFRS
where relevant.


 


“Group”  means
the Parent, the Borrowers, and all other Subsidiaries of the Parent from time
to time.


 


“Group Business”  means the business as conducted by the Parent and its
Subsidiaries on the date of this Agreement and any logical extensions or
related ancillary businesses thereto (including business functions incidental
to such business).


 


“Group Structure Chart”  means the group structure chart set out in
Schedule 9 (Group Structure).


 


“Guarantee”
means the guarantee contained in Clause 30 (Guarantee and Indemnity).


 


“Guarantors”  means the Original Guarantors and any Acceding Guarantors and
“Guarantor” means any one of them,
as the context requires.


 


“Hazardous Materials” means (a) any
petroleum or petroleum products, radioactive materials, asbestos in any form
that is friable, urea formaldehyde foam insulation, transformers or other
equipment that contains dielectric fluid containing levels of polychlorinated
biphenyls, and radon gas, (b) any chemicals, materials or substances
defined as or included in the definition of “hazardous substances”, “hazardous
waste”, “hazardous materials”, “extremely hazardous substances”, “restricted
hazardous waste”, “toxic 


 


24

















 


substances”, “toxic
pollutants”, “contaminants”, or “pollutants”, or words of similar import, under
any applicable Environmental Law and (c) any other chemical, material or
substance, the Release of which is prohibited, limited or regulated by any
governmental authority.


 


“Hedge Counterparty”  means each party other than a member of
the Group to a Hedging Agreement or, as the case may be, an Other Hedging Agreement
and “Hedge Counterparties” means
all such parties.


 


“Hedging Agreement”  means any agreement entered into in
connection with Clause 25.12 (Interest
Rate Protection) between a member of the Group and a Lender in
respect of an interest rate swap, currency swap, forward foreign exchange
transaction, cap, floor, collar or option transaction or any other treasury
transaction or any combination of it or any other transaction entered into in
connection with protection against or benefit from fluctuation in any currency,
rate or price.


 


“Hedging Letter”  means the letter dated on or about the date of this Agreement
from the Agent to the Parent setting out the agreed hedging policy in respect
of the Term Facilities (other than the Incremental Term Facility).


 


“Holding Company”  means a company or corporation of which another company or
corporation is a Subsidiary.


 


“IFRS” means international accounting standards within the
meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant
financial statements as interpreted and applied as at the Sixth Amendment and
Restatement Effective Date.


 


“Increased Cost”  means:


 


(a)           any
reduction in the rate of return from a Facility or on a Finance Party’s (or an
Affiliate’s) overall capital;


 


(b)           any
additional or increased cost; or


 


(c)           any
reduction of any amount due and payable under any Finance Document,


 


which is incurred
or suffered by a Finance Party or any of its Affiliates to the extent that it
is attributable to that Finance Party having agreed to make available its
Commitment or having funded or performed its obligations under any Finance
Document.


 


“Incremental Facility Commitment Agreement”
means an Incremental Revolving Facility Commitment Agreement or an Incremental
Term Facility Commitment Agreement, as the context may require.


 


“Incremental Revolving Facility”  means, subject to Clause 7 (Uncommitted Incremental Facilities), the
uncommitted revolving credit facility as may be granted to the Borrowers (or
any of them) pursuant to Clause 2.1(f) (The Facilities).


 


“Incremental Revolving Facility Commitment”  means, in relation to an Incremental
Revolving Facility Lender at any time, and save as otherwise provided in this
Agreement, any commitment to make Utilisations provided by such Incremental
Revolving Facility Lender pursuant to Clause 7 (Uncommitted Incremental Facilities), in such amount as
agreed to by 


 


25

















 


such Incremental
Revolving Facility Lender in the respective Incremental Revolving Facility Commitment
Agreement.


 


“Incremental Revolving Facility Commitment Agreement”
means each incremental revolving facility commitment agreement in the form set
out in Part IV of Schedule 4 (Form of
Incremental Revolving Facility Commitment Agreement).


 


“Incremental Revolving Facility Lender” has
the meaning ascribed to that term in Clause 7.2(b) (Incremental Revolving Facility Commitment Agreement).


 


“Incremental Term Facility”  means, subject to Clause 7 (Uncommitted Incremental Facilities), the
uncommitted term loan facility as may be granted to the Borrowers (or any of
them) pursuant to Clause 2.1(g) (The Facilities).


 


“Incremental Term Facility Advance”  means an advance (as from time to time
reduced by repayment) made or to be made by one or more of the Lenders under
the Incremental Term Facility or arising in respect of the Incremental Term
Facility.


 


“Incremental Term Facility Commitment”  means, in relation to a Lender at any
time, and save as otherwise provided in this Agreement, any commitment to make
Incremental Term Facility Advances provided by such Lender pursuant to
Clause 7 (Uncommitted Incremental
Facilities), in such amount as agreed to by such Lender in the
respective Incremental Term Facility Commitment Agreement or as specified in
the Transfer Certificate pursuant to which such Lender becomes a party to this
Agreement.


 


“Incremental Term Facility Commitment Agreement”
means each incremental term facility commitment agreement in the form set out
in Part III of Schedule 4 (Form of
Incremental Term Facility Commitment Agreement).


 


“Incremental Term Facility Lender” has the
meaning ascribed to that term in Clause 7.1(b) (Incremental Term Facility Commitment Agreement).


 


“Incremental Term Facility Maturity Date”
means, for any Tranche of Incremental Term Facility, the final maturity date
specified for such Tranche of Incremental Term Facility in the relevant
Incremental Term Facility Commitment Agreement relating thereto, provided that
the final maturity date for all Incremental Term Facility Advances of a given
Tranche shall be the same date.


 


“Incremental Term Facility Outstandings”  means, at any time, the aggregate
principal amount of the Incremental Term Facility Advances outstanding under
this Agreement.


 


“Incremental Term Facility Repayment Date”
has the meaning ascribed to that term in Clause 10.4 (Repayment of Incremental Term Facility Outstandings).


 


“Incremental Term Facility Scheduled Repayment”
has the meaning ascribed to that term in Clause 10.4 (Repayment of Incremental Term Facility Outstandings).


 


“Incremental Term Facility Utilisation Date”
shall mean, with respect to each Tranche of Incremental Term Facility, each
date on which Incremental Term Facility Advances of such Tranche are incurred
pursuant to Clause 4.2 (Conditions to
Utilisation of Incremental Term Facility) and as otherwise permitted
by Clause 7 (Uncommitted Incremental
Facilities).


 


26

















 


“Indebtedness” means, as to any person,
without duplication:


 


	
  (a)

  	
   

  	
  all indebtedness
  of such person for borrowed money or for the deferred purchase price of
  property or services;

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  the maximum
  amount available to be drawn under all letters of credit (excluding trade
  letters of credit), bankers’ acceptances and similar obligations issued for
  the account of such person and all unpaid drawings in respect of such letters
  of credit (excluding trade letters of credit), bankers’ acceptances and
  similar obligations;

  
	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  the aggregate
  amount required to be capitalised under leases under which such person is the
  lessee;

  
	
   

  	
   

  	
   

  
	
  (d)

  	
   

  	
  all obligations
  of such person to pay a specified purchase price for goods or services,
  whether or not delivered or accepted, i.e., take-or-pay and similar
  obligations;

  
	
   

  	
   

  	
   

  
	
  (e)

  	
   

  	
  all Contingent
  Obligations of such person;

  
	
   

  	
   

  	
   

  
	
  (f)

  	
   

  	
  all obligations
  under any Hedging Agreement or Other Hedging Agreement or under any similar
  type of agreement provided that, the net mark to market value in respect of
  any Hedging Agreement or Other Hedging Agreement which qualifies for hedge
  accounting under IAS 39, other than currency swaps, forward foreign exchange
  transactions and other agreements pursuant to which foreign exchange risk is
  hedged, shall be deemed to be zero; and

  
	
   

  	
   

  	
   

  
	
  (g)

  	
   

  	
  the amount of
  Permitted Receivables Transaction Outstandings from time to time.

  



 


Notwithstanding
anything to the contrary contained above or elsewhere in this Agreement,
Indebtedness shall not include preference shares or trade payables and accrued
expenses incurred by any person in accordance with customary practices and in
the ordinary course of business of such person.


 


“Indebtedness to be Refinanced” means all
Indebtedness of the Parent and its Subsidiaries outstanding immediately before
the consummation of the Transaction (including, without limitation, Indebtedness
referred to in Clause 2.2(a) (Purpose)
which is to be repaid or refinanced on the Initial Borrowing Date, including
any such Indebtedness which is not permitted to remain outstanding after the
Initial Borrowing Date pursuant to Clause 26.4 (Indebtedness) or as set out in paragraph 11 of Part I
of Schedule 3 (Conditions Precedent to
First Utilisation).


 


“Indemnifying Lender”  has the meaning ascribed to that term in
Clause 5.1(b) (Issue of Documentary
Credits).


 


“Information Memorandum”  means the document dated November 2003
concerning the Obligors which, at the request of the Parent and on its behalf,
was prepared in relation to this transaction and distributed by the Arrangers
to selected banks and other institutions during November and December 2003
for the purposes of syndication of the Facilities.


 


“Initial Borrowing Date” means the date
falling on the first Utilisation of the Facilities.


 


“Instructing Group” means Lenders, the sum
of whose Term Facility Outstandings (or, if prior to the occurrence of the
Utilisations on the Initial Borrowing Date, whose Term Facility 


 


27

















 


Commitments),
Incremental Revolving Facility Commitments, Incremental Term Facility
Commitments and Revolving Facility Commitments (or after the termination
thereof, the Incremental Revolving Facility Outstandings, the Incremental Term
Facility Outstandings and the Revolving Facility Outstandings) as of any date
of determination represent greater than 50 per cent. of the sum of all Term
Facility Outstandings (or, if prior to the occurrence of the Utilisations on
the Initial Borrowing Date, whose Term Facility Commitments) and the sum of all
Incremental Revolving Facility Commitments, Incremental Term Commitments and
Revolving Facility Commitments of all Lenders at such time (or after the
termination thereof, the sum of the then total Incremental Revolving Facility
Outstandings, Incremental Term Facility Outstandings and Revolving Facility
Outstandings of all Lenders at such time).


 


“Instructing Group’s Satisfaction” means, in
relation to any documentation being satisfactory to the Instructing Group as
contained in the definitions of “Permitted Receivables Transaction” and “Permitted
Subordinated Indebtedness”, such documentation shall be deemed satisfactory and
approved by the Instructing Group so long as (a) the relevant
documentation (in substantially final form which has been approved by the
Agent) is distributed to the Lenders at least 5 Business Days prior to the
entering into of such documentation, (b) the Instructing Group does not
object thereto within such 5 Business Days and (c) the Agent approves the
final form of the documentation relating thereto.


 


“Intellectual Property Rights”  means any patent, trade mark, service
mark, registered design, trade name or copyright or any license to use any of
the same.


 


“Intercompany Existing Indebtedness” means
the list of Indebtedness existing on the Effective Date set out in Section B
(Intercompany Existing Indebtedness)
of Part II of Schedule 10 (Existing
Indebtedness).


 


“Intercompany Loan” means each intercompany
loan or advance between or among the Parent and its Subsidiaries or between or
among Subsidiaries of the Parent.


 


“Intercreditor Deed” means the intercreditor
deed dated on or about the date of this
Agreement between the Parent, the Existing Borrower, the Agent, the
Security Trustee, the Lenders, the Original Guarantors and certain other
parties.


 


“Interest Period”  means, save as otherwise provided in this Agreement, any of
those periods mentioned in Clause 15.1 (Interest
Periods for Term Facility Advances).


 


“Investments” has the meaning ascribed to
that term in Clause 26.5 (Advances,
Investments and Loans).


 


“Law”  means:


 


	
  (a)

  	
   

  	
  common or
  customary law;

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  any constitution,
  decree, judgment, legislation, order, ordinance, regulation, statute, treaty
  or other legislative measure in any jurisdiction; and

  
	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  any present or
  future directive, regulation, practice, concession or requirement which has
  the force of law and which is issued by any governmental body, agency or
  department or any central bank or other fiscal, monetary, regulatory,
  self-regulatory or other authority or agency.

  



 


28














 


“L/C Bank”
means Deutsche Bank AG, London Branch (and/or affiliates of Deutsche
Bank AG, London Branch (including, without limitation, Deutsche Bank Trust
Company Americas) designated by it to act as such with respect to any
Documentary Credit) or any other Lender which has been appointed as L/C Bank in
accordance with Clause 5.11 (Appointment and Change of
L/C Bank) or assumed its role as issuer under any Existing
Documentary Credits in accordance with Clause 5.12 (Assumption of Existing Documentary Credits)
and which has not resigned in accordance with paragraph (c) of
Clause 5.11 (Appointment and Change of
L/C Bank).


 


“L/C Bank Accession Certificate”  means a duly completed accession
certificate in the form set out in Schedule 11 (Form of
L/C Bank Accession Certificate).


 


“L/C Proportion”  means, in relation to a Lender in respect of any Documentary
Credit (save as otherwise provided in this Agreement and taking into account
Clauses 21 (Replacement and Mitigation)
and 39 (Assignments and Transfers))
the proportion (expressed as a percentage) borne by such Lender’s Available
Revolving Facility Commitment to the Available Revolving Facility immediately
prior to the issue of such Documentary Credit.


 


“Leaseholds” of any person, means all the
right, title and interest of such person as lessee or licensee in, to and under
leases or licenses of land, improvements and/or fixtures.


 


“Legal Opinions”  means the legal opinions set out in paragraph 8 of Part I
of Schedule 3 (Conditions Precedent to
First Utilisation).


 


“Lender”  means
an A Facility Lender, a D1 Facility Lender, a D2 Facility Lender, a
Revolving Facility Lender, a Dollar Swingline Facility Lender, a Euro Swingline
Facility Lender, an Incremental Revolving Facility Lender or an Incremental
Term Facility Lender, as the context may require and “Lenders” means all of them.


 


“Lender Default” means (i) a failure or
refusal (which has not been retracted) of a Lender to fund its portion of any
participating interest required to be purchased by such Lender pursuant to
Clause 6.6 (Purchase of Swingline
Participations) or (ii) a Lender having notified in writing the
Parent, the Existing Borrower and/or the Agent that it does not intend to
comply with its obligations under Clause 6 (Swingline Facilities) in circumstances which would be
contrary to the terms of this Agreement.


 


“LIBOR”  means,
in relation to any amount owed by an Obligor under this Agreement in a currency
other than euro on which interest for a given period is to accrue:


 


(a)           the
rate per annum which appears on the Relevant Page for such period at or
about 11.00 a.m. on the Quotation Date for such period; or


 


(b)           if no such rate is displayed and the Agent shall not have selected
an alternative service on which such rate is displayed, the arithmetic mean
(rounded upwards, if not already such a multiple, to the nearest 4 decimal
places) of the rates (as notified to the Agent) at which each of the Reference
Banks was offering to prime banks in the London interbank market deposits in
the relevant currency for such period at or about 11.00 am on the
Quotation Date for such period.


 


“Lien” means any mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), preference, priority or other security agreement of any 


 


29

















 


kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
the UCC or any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).


 


“Luxembourg Guarantor” means each of the
parties as set out in Part II of Schedule 1 (Original Guarantors) named as Luxembourg
Guarantors and any Acceding Guarantor incorporated in Luxembourg.


 


“Majority Lenders” of (i) any Facility
(other than the D1 Facility or the D2 Facility) means those Lenders which would
constitute the Instructing Group under, and as defined in, this Agreement if
all outstanding Facilities Obligations of the other Facilities under this
Agreement were repaid in full and all Commitments, if any, with respect thereto
were terminated or (ii) the D1 Facility or the D2 Facility means those
Lenders which would constitute the Instructing Group under, and as defined in,
this Agreement, if all outstanding Facilities Obligations of the other
Facilities under this Agreement (other than both of the D Facilities) were
repaid in full and all commitments, if any, with respect thereto were terminated.


 


“Margin Regulations” means and shall include
each of Regulation T, Regulation U and Regulation X.


 


“Margin Stock” shall have the meaning
provided in Regulation U.


 


“Material Adverse Effect” means (a) any
material adverse condition or material adverse change in or affecting the
business, assets, liabilities, results of operations, financial condition or
prospects of the Parent and its Subsidiaries taken as a whole, or (b) a
material adverse effect (i) on the rights or remedies of any of the
Finance Parties hereunder or under any other Finance Document or (ii) on
the ability of any Obligor to perform its obligations hereunder to any of the
Finance Parties.


 


“Material Subsidiary” means, at any time


 


(a)           a member of the Group:


 


(i)            organised
under the laws of a Qualified Jurisdiction; and


 


(ii)           whose
revenues, consolidated EBITDA or assets (on a consolidated basis if it has
Subsidiaries) represent at least 5 per cent. of the revenues, Consolidated
EBITDA or assets of the Group,


 


and
all such Subsidiaries shall collectively represent at least 662/3 per cent. of consolidated revenues, the
Consolidated EBITDA and consolidated assets of the Group, as determined by
reference to the latest annual audited financial statements for the time being
of the Group delivered under paragraph (b) (Annual Financial Statements) of
Clause 23.1 (Information Covenants),
or, if the company concerned becomes a Subsidiary of the Parent after the end
of the fiscal year to which such annual audited financial statements of the
Group relate, then the latest financial statements of the Group delivered under
paragraph (a) (Quarterly Financial
Statements) of Clause 23.1 (Information Covenants)
which include such company, but so that a certificate of the auditors of the
Group that a Subsidiary of the Parent is or is 


 


30

















 


not
a Material Subsidiary (in accordance with this definition) at any time shall be
conclusive; and


 


(b)           any other Subsidiary which the Obligor’s Agent has nominated as a
Material Subsidiary by written notice to the Agent, provided that the Obligor’s
Agent shall give the Agent 5 Business Days’ notice that any Subsidiary
nominated under this subparagraph (b) shall cease to be a Material
Subsidiary.


 


“Member State” means a member of the
European Community.


 


“Moody’s” means Moody’s Investors Service, Inc.


 


“Multiemployer Plan” means:


 


(a)           any plan, as defined in Section 4001(a)(3) of ERISA, which
is maintained or contributed to (or to which there is an obligation to
contribute to) by the Parent or a Subsidiary of the Parent or an ERISA
Affiliate and that is subject to Title IV of ERISA; and


 


(b)           each
such plan which, during the five year period immediately following the latest
date on which the Parent, a Subsidiary of the Parent or an ERISA Affiliate
maintained, contributed to or had an obligation to contribute to such plan, if
the Parent, any Subsidiary of the Parent or any ERISA Affiliate could
reasonably incur any liability under such plan.


 


“Necessary Authorisations”  means all Authorisations (including any
competition and other clearances necessary in relation to the Environmental
Licences) of any person including any government or other regulatory authority
required by applicable Law to enable it to:


 


(a)           lawfully
enter into and perform its obligations under the Finance Documents to which it
is party;


 


(b)           ensure
the legality, validity, enforceability or admissibility in evidence in England
and, if different, its jurisdiction of incorporation, of such Finance Documents
to which it is party; and


 


(c)           carry on in all material respects its business from time to time.


 


“Net Cash Proceeds” means, of any event, the
gross cash proceeds (including any cash received by way of deferred payment
pursuant to a promissory note, receivable or otherwise, but only as and when
received) received from such event, net of reasonable transaction costs
received from any such event.


 


“Net Sale Proceeds” means, for any sale of
assets, the gross cash proceeds (including any cash received by way of deferred
payment pursuant to a promissory note, receivable or otherwise, but only as and
when received) received from such sale of assets, net of (a) reasonable
transaction costs, (b) payments of unassumed liabilities relating to the
assets sold at the time of, or within 90 days after, the date of such
sale, (c) the amount of such gross cash proceeds required to be used to
permanently repay any Indebtedness (other than Indebtedness of the Lenders
pursuant to this Agreement) which is secured by the respective assets which were
sold, and (d) the estimated marginal increase in taxes which will be 


 


31

















 


payable by the
Parent and its Subsidiaries with respect to the fiscal year in which the sale
occurs as a result of such sale.


 


“New  Senior
Subordinated Notes Purchase Agreement” means that certain purchase
agreement, relating to the New Senior Subordinated Notes due 2015, among the
Parent, the Existing Borrower and Deutsche Bank Securities Inc, as same may be
amended, modified or supplemented from time to time in accordance with the
requirements of this Agreement.


 


“New  Senior
Subordinated Note Documents” means each New Senior Subordinated Note
Indenture,  New  Senior Subordinated Notes Purchase
Agreement, the New Senior Subordinated Notes and each other agreement, document
or instrument relating to any issuance of New Senior Subordinated Notes.


 


“New Senior Subordinated Note Indenture”
means any indenture entered into with respect to New Senior Subordinated Notes
issued from time to time by the Existing Borrower, provided that any indenture
relating to any New Senior Subordinated Notes constituting Permitted
Refinancing Indebtedness shall meet the requirements contained in the
definition of Permitted Refinancing Indebtedness.


 


“New Senior Subordinated Notes” means the
Existing Borrower’s New Senior Subordinated Notes, issued in accordance with
the requirements of the New Senior Subordinated Note Documents.  The term “New Senior Subordinated Notes”
shall also include any “exchange notes” issued in respect of such outstanding
New Senior Subordinated Notes in accordance with the requirements of the
relevant New Senior Subordinated Note Documents, so long as in respect of
outstanding New Senior Subordinated Notes, such “exchange notes” are substantially
identical to the New Senior Subordinated Notes in respect of which same were
issued and so long as the issuance of such “exchange notes” does not result in
any increase to the principal amount of New Senior Subordinated Notes
outstanding.


 


“New York Business Day” means a day
(other than a Saturday or a Sunday) on which banks are open for general
business in New York City.


 


“Non-Consolidated Person” means any person which is not a
Subsidiary of the Parent but in which a member of the Group has an equity
interest.


 


“Non-Guarantor Subsidiaries” means (a) on
the Initial Borrowing Date, the Existing Borrower and each Subsidiary of the
Parent listed in Part III of Schedule 10 (Non-Guarantor Subsidiaries) and (b) after the Initial
Borrowing Date, any Subsidiary of the Parent which is not at such time a
Guarantor.


 


“Non-Material Subsidiary” means, at any
time, a member of the Group which is not a Material Subsidiary.


 


“Non-U.S. Pension Plan”  means any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America by any member of the Group for
the benefit of employees of any member of the Group residing outside the United
States of America, which plan, fund or other similar program provides, or
results in, retirement income, a deferral of income in contemplation of
retirement or payments to be made upon termination of employment, and which
plan is not subject to ERISA or the Code.


 


32

















 


“Non-U.S. Subsidiary” means (a) in the
case of the Parent, each Subsidiary of the Parent which is not a U.S.
Subsidiary of the Parent and (b) in the case of the Existing Borrower,
each Subsidiary of the Existing Borrower which is not a U.S. Subsidiary of the
Existing Borrower.


 


“Non-Wholly Owned Subsidiary” means each
Subsidiary of the Parent which is not a Wholly-Owned Subsidiary of the Parent.


 


“Obligors”
means the Parent, the Borrowers, the Guarantors and any party (other
than a Finance Party) to a Security Document and “Obligor” means any of them.


 


“Obligors’ Agent”  means the Parent in its capacity as agent for the Obligors,
pursuant to Clause 31.17 (Obligors’ Agent).


 


“Optional Currency”  means:


 


(a)           in
relation to any D1 Facility Advance and any Incremental Term Facility Advance,
dollars; and


 


(b)           in relation to any
Revolving Facility Advance, dollars and any other currency except euro which:


 


(i)            is
readily available to banks in the London interbank market, and is freely
convertible into euro on the Quotation Date and the Utilisation Date for the
relevant Advance; and


 


(ii)           has
been approved by the Agent (acting on the instructions of all the Lenders) on
or prior to receipt by the Agent of the relevant Utilisation  Request.


 


“Original Financial Statements”  means:


 


(a)           in
relation to the Parent, its audited consolidated financial statements for its
financial year ending 31 December 2002;


 


(b)           in
relation to any Acceding Guarantor or Acceding Borrower, its financial
statements delivered pursuant to paragraph 1(d) of Part II of
Schedule 7 (Accession  Documents);
and


 


(c)            the
Pro Forma Financial Statements.


 


“Original Obligors”  means the Parent, the Existing Borrower
and the Original Guarantors.


 


“Other Hedging Agreement” means:


 


(a)           any
agreement entered into between a member of the Group and a bank or financial
institution (other than a Lender) in respect of any interest rate swap,
currency swap, foreign exchange contracts, cap, floor, collar or optional
transaction or any other treasury transaction or any combination of it or any
other transaction entered into in connection with protection against or benefit
from fluctuating in any rate or price (an “Other
Interest Hedging Agreement”); and


 


33

















 


(b)           any agreement entered into between a member of the Group and a bank
or financial institution (other than a Lender) in respect of any currency swap
agreements, commodity agreements or other similar agreements or arrangements
designed to protect against fluctuations in currency or commodity values (an “Other Currency/Commodity Hedging Agreement”).


 


“Outstanding L/C Amount”  means:


 


(a)           each sum paid or payable by
an L/C Bank to a Beneficiary pursuant to the terms of a Documentary Credit; and


 


(b)           all
liabilities, costs (including, without limitation, any costs incurred in
funding any amount which falls due from an L/C Bank under a Documentary
Credit), claims, losses and expenses which an L/C Bank (or any of the
Indemnifying Lenders) incurs or sustains in connection with a Documentary
Credit,


 


in each case
which has not been reimbursed or in respect of which cash cover has not been
provided by or on behalf of a Borrower.


 


“Outstandings”  means, at any time, the Term Facility Outstandings, the
Revolving Facility Outstandings, the Dollar Swingline Facility Outstandings,
the Euro Swingline Facility Outstandings and any Incremental Term Facility
Outstandings.


 


“Paper Merchant Division” means the former
paper merchant division of the Group Business sold to PaperlinX Limited
pursuant to a sale and purchase agreement dated 8 September 2003
between the Parent and PaperlinX Limited.


 


“Parent Common Stock” means, as at the
Effective Date, the 250,000,000 ordinary shares of €1.20 par value per share of
the Parent and any further such shares as may be permitted by this Agreement.


 


“Parent Preference Shares A” means, as at
the Effective Date, the 59,940,000 ordinary shares of €1.20 par value per share
of the Parent and any further such shares as may be permitted by this
Agreement.


 


“Parent  Preference
Shares  B” means, as at the Effective Date, the 305,000,000 ordinary
shares of €1.20 par value per share of the Parent and any further such shares
as may be permitted by this Agreement.


 


“Parent Preference Shares C” means, as at
the Effective Date, the 60,000 ordinary shares of €1.20 par value per share of
the Parent.


 


“Parent Preferred Stock” means,
collectively, the Parent Preference Shares A, the Parent Preference Shares B
and, after the issuance thereof, any other Preferred Stock of the Parent.


 


“Participating Member State”  means any member of the European Community
that at the relevant time has adopted the euro as its lawful currency in
accordance with EMU Legislation.


 


“PBGC” means the Pension Benefit Guaranty
Corporation established pursuant to Section 4002 of ERISA, or any
successor thereto.


 


34

















 


“Permitted Acquired Debt” means Indebtedness
of any Subsidiary of the Parent acquired pursuant to a Permitted Acquisition,
which Indebtedness existed at the time of the consummation of such Permitted
Acquisition and was not created in contemplation thereof (and the provisions of
which were not altered in contemplation thereof), so long as (i) the
Parent and its Subsidiaries have no liability with respect to any such
Indebtedness and (ii) any Liens securing such Indebtedness apply only to
assets of the Subsidiary so acquired (and so long as additional assets of such
Subsidiary are not granted as security following, or in contemplation of, the
respective Permitted Acquisition).


 


“Permitted Acquisition” means, subject to
the Permitted Acquisition Conditions,


 


(a)           the Anton Acquisition ; and


 


(b)           the acquisition by the
Parent or a Wholly-Owned Subsidiary thereof of:


 


(i)            assets
constituting part of or an entire business, division or product line of any
person not already a Subsidiary of the Parent; or


 


(ii)           Equity
Interests of any person so that, immediately after giving effect to such
acquisition, such person shall constitute a Subsidiary,


 


provided
that the aggregate consideration paid (determined in accordance with
paragraph (a) of the definition of Permitted Acquisition Conditions)
for all such acquisitions made pursuant to paragraph (b) during any fiscal
year of the Parent (A) does not exceed €300,000,000 and provided further
that, for the purposes of such €300,000,000 limit, (i) any creation or
establishment of a Subsidiary pursuant to Clause 25.15(b)(iv) shall
be treated as if it were a Permitted Acquisition and any investment in such
Subsidiary shall be treated as if it were consideration paid for such Permitted
Acquisition, and (ii) the amount of any Permitted Acquired Debt assumed in
connection with any Permitted Acquisition shall be deemed to constitute
additional consideration paid for such Permitted Acquisition.


 


“Permitted Acquisition Conditions” means, in
relation to any Permitted Acquisition:


 


(a)           the
consideration paid for such acquisition consists solely of Parent Common Stock,
Qualified Preferred Stock, cash and/or, in the case of the acquisition of a
Wholly-Owned Subsidiary, the issuance of Seller Debt and/or the assumption of
Permitted Acquired Debt in accordance with the requirements of this Agreement;


 


(b)           the
assets acquired or the business of the person whose stock is acquired, shall
fall within the definition of Group Business and the respective Permitted
Acquisition shall be effected in accordance with the relevant requirements of
Clause 25.2 (Conduct of Business);


 


(c)           the
respective Permitted Acquisition shall be effected by the Parent or a
Wholly-Owned Subsidiary thereof;


 


(d)           the
Borrowers shall have demonstrated compliance on a Pro Forma Basis with the
financial covenants in Clause 24 (Financial
Condition), inclusive;


 


35

















 


(e)           at the
date of the declaration of the respective Permitted Acquisition (and if such
Permitted Acquisition is consummated within 30 days of such declaration)
the Borrowers shall have Available Liquidity of at least €50,000,000;


 


(f)            the
Existing Borrower in good faith determines that the Parent and its Subsidiaries
taken as a whole are not likely to assume or become liable for material
increased contingent liabilities as a result of such acquisition;


 


(g)           in the
case of each Permitted Acquisition where the aggregate consideration is in
excess of €5,000,000 (or its equivalent in other currencies), the Parent
delivers to the Agent at the time of the consummation of the respective
Permitted Acquisition an officer’s certificate in form, scope and substance
reasonably satisfactory to the Agent certifying that the foregoing conditions
have been satisfied and showing compliance with the requirements of paragraphs (d) and
(e) above;


 


(h)           no
Default or Event of Default shall exist at the time of the consummation of the
respective Permitted Acquisition or immediately after giving effect thereto;
and


 


(i)            in the  case of each Permitted Acquisition
where the aggregate consideration is in excess of €175,000,000 (or its
equivalent in other currencies), the Existing Borrower delivers to the Agent
updated projections (from the last projections provided pursuant to this
paragraph (i) or to Clause 23.1(c) (Projections),
whichever was provided later) prepared on a quarterly basis for the period from
the date of such Permitted Acquisition until the expiry of the period to which
the most recently delivered Projections refer, all prepared in a manner
consistent with the Projections, and shall be in form, scope and substance
reasonably satisfactory to the Agent acting reasonably and with at least the
same level of detail as provided in the Projections, on the next date following
the closing of such Permitted Acquisition on which the Existing Borrower is
required to provide financial statements to the Agent under Clause 23.1(a) or
(b) (as the case may be).


 


provided that
the Parent or its Wholly-Owned Subsidiaries may consummate one or more
Permitted Acquisitions in any fiscal year of the Parent without complying with
paragraphs (d) and (e) above (and the officer’s certificate, if any,
required to be delivered pursuant to paragraph (g) above shall not be
required to certify compliance with such conditions), so long as the aggregate
consideration paid for all Permitted Acquisitions effected pursuant to this
proviso during any fiscal year of the Parent does not exceed €15,000,000 (or
its equivalent in other currencies).


 


“Permitted Holder” shall mean (a) with
respect to the Parent Preference Shares A, Stichting A so long as the
Stichting A Continuing Directors shall not cease to constitute a majority of
the executive committee of Stichting A and (b) with respect to the Parent
Preference Shares B, Stichting B so long as the Stichting B Continuing
Directors shall not cease to constitute a majority of the executive committee
of Stichting B.


 


“Permitted Liens” has the meaning ascribed
to that term in Clause 26.1 (Liens).


 


“Permitted Receivables Facility” means (a) the  €800,000,000 Asset-Backed Euro Medium Term
Note Programme entered into by Silver Funding Limited more particularly
described in the Offering Circular dated 18 July 2002 (the “SFL Programme”), as may be amended from time to time
provided that (i) the details of (and all documents relating to) such
amendments 


 


36

















 


have been
fully disclosed to the Agent and the Lenders and (ii) such amendments are
not materially adverse to the interests of the Finance Parties, or (b) such
other facility in form and substance similar to the aforesaid programme, and
pursuant to which a Permitted Receivables Transaction is provided, provided
that (i) the details of (and all documents relating to) such other
facility have been fully disclosed to the Agent and the Lenders and (ii) such
other facility is materially no more adverse to the interests of the Finance
Parties than the SFL Programme.


 


“Permitted Receivables Facility Documentation”
means all documentation evidencing, or relating to, any Permitted Receivables
Facility or Permitted Receivables Transaction.


 


“Permitted Receivables Transaction” means,
from time to time, a transaction (or series of transactions) evidenced by a
receivables purchase agreement and related documentation entered into after the
Initial Borrowing Date and providing for the sale, transfer or issue of
Receivables Facility Assets by one or more Receivables Sellers to one or more
Receivables Subsidiaries, and further providing for the sale or transfer of
Receivables Facility Assets by the Receivables Subsidiary to one or more
purchasers of interests therein, provided that (a) such agreement and the
documents and instruments entered into in connection therewith have been fully
disclosed to the Agent and the Lenders, such agreement, documents and
instruments are (i) in form and substance reasonably satisfactory to the
Agent and the Instructing Group’s Satisfaction, or (ii) in the case of a
transaction in form and substance similar to the Permitted Receivables Transaction
entered into pursuant to the SFL Programme (the “SFL
Transaction”), materially no more adverse to the interests of the
Finance Parties than the SFL Transaction, (b) the Parent shall have
provided the Agent and the Lenders with not less than 15 days’ prior
notice of its intent to enter into such receivables purchase agreement and (c) 100 per
cent. of the Permitted Receivables Transaction Proceeds received by the Parent
or any of its Subsidiaries shall be applied in accordance with paragraph (e) (Permitted Receivables Transactions) of
Clause 13.1 (Repayment from Net
Proceeds).


 


“Permitted Receivables Transaction Outstandings”
means at any time, the aggregate amount of cash paid to the Parent and/or its
Subsidiaries (other than Receivables Subsidiaries) in respect of the
Receivables Facility Assets sold or transferred by them pursuant to one or more
Permitted Receivables Transactions, in each case to the extent the respective
receivables have not yet been repaid by the respective account debtor or repurchased
by Receivables Sellers (it being the intent of the parties that the amount of
Permitted Receivables Transaction Outstandings at any time outstanding
approximate as closely as possible the principal amount of Indebtedness which
would be outstanding at such time under the Permitted Receivables Facilities
then in effect if same were structured as a secured lending agreement rather
than a purchase agreement).


 


“Permitted Receivables Transaction Proceeds”
means all proceeds received by the Parent and its Subsidiaries (other than
Receivables Subsidiaries) from time to time as a result of sales or transfers
of Receivables Facility Assets pursuant to one or more Permitted Receivables
Transactions.


 


37

















 


“Permitted Refinancing Indebtedness” means
any Indebtedness of the Parent or any of its Subsidiaries issued in exchange
for, or the net proceeds of which are used to extend, refinance, renew,
replace, defease or refund (collectively, to “Refinance”):


 


(a)           Third Party Existing Indebtedness described in Section A (Third Party Existing Indebtedness) of Part II
of Schedule 10 (Existing Indebtedness)
(or previous refinancings thereof constituting Permitted Refinancing
Indebtedness);


 


(b)           outstanding
Senior Subordinated Notes so long as the Permitted Refinancing Indebtedness
shall be permitted to be outstanding in accordance with the requirements of
Clause 26.4(l) (Indebtedness);


 


(c)             outstanding
New Senior Subordinated Notes so long as the Permitted Refinancing Indebtedness
shall be permitted to be outstanding in accordance with the requirements of
Clause 26.4(r) (Indebtedness),


 


provided that:


 


	
  (i)

  	
   

  	
  the
  principal amount (or accreted value, if applicable) of such Permitted
  Refinancing Indebtedness does not exceed the principal amount (or accreted
  value, if applicable) and related redemption fees of the Indebtedness so
  Refinanced;

  
	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  the
  Permitted Refinancing Indebtedness shall not have (A) a Weighted Average
  Life to Maturity that is less than the Weighted Average Life to Maturity of
  the Indebtedness being Refinanced or (B) a final maturity earlier than
  the final maturity of the Indebtedness being Refinanced;

  
	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  in the case
  of Permitted Subordinated Indebtedness, it shall be subordinated in right of
  payment to the Facilities Obligations on terms at least as favorable to the
  Lenders as those contained in the documentation governing the Indebtedness
  being extended, refinanced, renewed, replaced, defeased or refunded;

  
	
   

  	
   

  	
   

  
	
  (iv)

  	
   

  	
  no Permitted
  Refinancing Indebtedness shall have different obligors, or greater guarantees
  or security, than the Indebtedness being Refinanced; and

  
	
   

  	
   

  	
   

  
	
  (v)

  	
   

  	
  in no event
  shall any Permitted Refinancing Indebtedness be secured (A) in the case
  of Permitted Refinancing Indebtedness described in paragraph (a), by any
  share, stock or other Equity Interest subject or purported to be subject to a
  Security Document (whether equally and ratably with, or junior to, the
  Finance Parties or otherwise) or (B) in the case of any Permitted Refinancing
  Indebtedness described in paragraph (b), by any assets whatsoever.

  



 


“Permitted Subordinated Indebtedness” means:


 


(a)           the
Senior Subordinated Notes;


 


(b)           the
Senior Subordinated Convertible Bonds;


 


(c)           the New Senior Subordinated
Notes; and


 


38

















 


(d)           any
general unsecured subordinated Indebtedness for borrowed money incurred by any
member of the Group after the Initial Borrowing Date, all of the terms and
conditions of which and the documentation therefor, shall be in form and
substance reasonably satisfactory to the Agent and to the Instructing Group’s
Satisfaction, provided, that in any event, unless the Instructing Group
otherwise expressly consents in writing prior to the incurrence thereof:


 


(i)            no
such Indebtedness shall be secured by any asset of the Parent or any of its
Subsidiaries;


 


(ii)           no
such Indebtedness shall be guaranteed except by the Parent or any other
Guarantor on a subordinated basis on substantially the same terms as the Senior
Subordinated Notes and/or the Senior Subordinated Convertible Bonds are
guaranteed;


 


(iii)         such
Indebtedness shall have substantially the same (or, from the perspective of the
Lenders, more favorable) subordination provisions as are contained in the
Senior Subordinated Note Indenture and/or the New Senior Subordinated Notes
and/or the Senior Subordinated Convertible Bonds;


 


(iv)          no such
Indebtedness shall have any maturity or required repayment (other than as a
result of change of control or asset sale provisions approved by the
Instructing Group) prior to the first anniversary of the Final Maturity Date of
the D Facility as same is in effect on the date of incurrence of such
Indebtedness; and


 


(v)           Utilisations
from time to time pursuant to this Agreement, in an aggregate outstanding
amount at any time equal to the sum of the Term Facility Outstandings on the
date of incurrence of such Permitted Subordinated Indebtedness and in an amount
equal to the total Revolving Facility Commitments and total A Facility
Commitments as then in effect, shall be permitted without complying with any
financial tests.


 


Notwithstanding
the above sub-paragraphs (i) to (v), such Indebtedness shall be permitted
to bear interest at then current market rates (as reasonably determined by the
Agent).


 


The incurrence
of Permitted Subordinated Indebtedness shall be deemed to be a representation
and warranty by the Parent that all conditions thereto have been satisfied in
all material respects and that same is permitted in accordance with the terms
of this Agreement, which representation and warranty shall be deemed to be a
representation and warranty for all purposes hereunder, including, without
limitation, Clauses 4.1 (Conditions to
Utilisation), 4.2 (Conditions
to Utilisation of Incremental Term Facility) and 6.2 (General Conditions to Utilisation of Swingline
Facility Advances).


 


“Permitted Subordinated Indebtedness Documents”
means all indentures, securities purchase agreements, note agreements and/or
other documents and agreements entered into in connection with any Permitted
Subordinated Indebtedness.


 


“Plan” means (i) any single-employer
plan, as defined in Section 4001(a)(15) of ERISA, which is maintained or
contributed to by (or to which there is an obligation to contribute to 


 


39

















 


by), the
Parent or a Subsidiary of the Parent or an ERISA Affiliate and that is subject
to Title IV of ERISA and (ii) each such plan which, during the five year
period immediately following the latest date on which the Parent, a Subsidiary
of the Parent or an ERISA Affiliate maintained, contributed to or had an
obligation to contribute to such plan, if, for purposes of this clause (ii),
the Parent, any Subsidiary of the Parent or any ERISA Affiliate could
reasonably incur any liability under such plan.


 


“Pledge Agreements” means each of the
documents specified in paragraph 2 of Section A, paragraph 3 of Section B,
paragraph 2 of Section C, paragraph 1 of Section D and
paragraph 1 of Section E in Part III of Schedule 3 (Security Documents).


 


“Preferred Stock” as applied to the share
capital of any person, means share capital of such person (other than ordinary
share capital of such person) of any class or classes (however designed) that
ranks prior, as to the payment of dividends or as to the distribution of assets
upon any voluntary or involuntary liquidation, dissolution or winding up of
such person, to any other class of share capital of such person.


 


“Prime Lending Rate” means the rate which
Deutsche Bank AG, New York Branch announces from time to time as its prime
lending rate, such rate to change from time to time.  The Prime Lending Rate is a reference rate
and does not necessarily represent the lowest or the best rate actually charged
to any customer.  Deutsche Bank AG, New
York Branch may make commercial loans or other loans at rates of interest at,
above or below the Prime Lending Rate.


 


“Pro Forma Basis” means, as to any person,
for any events which occur subsequent to the commencement of a period for which
the financial effect of such event is being calculated, and giving effect to
the event for which such calculation is being made, such calculation as will
give pro forma effect to such event as if same had occurred at the beginning of
such period of calculation, and:


 


(a)           for
purposes of the foregoing calculation, the transaction giving rise to the need
to calculate the pro forma effect to any of the following events shall be
assumed to have occurred on the first day of the four consecutive fiscal
quarter period last ended before the occurrence of the respective event for
which such pro forma effect is being determined (the “Reference Period”); and


 


(b)           in
making any determination with respect to the incurrence or assumption of any
Indebtedness during the Reference Period or subsequent to the Reference Period
and on or prior to the date of the transaction referenced in paragraph (a) above
(the “Transaction Date”), (i) all
Indebtedness (including Indebtedness incurred or assumed and for which the
financial effect is being calculated, whether incurred under this Agreement or
otherwise, but excluding normal fluctuations in revolving indebtedness incurred
for working capital purposes and not to finance any acquisition) incurred or
permanently repaid during the Reference Period shall be deemed to have been
incurred or repaid at the beginning of such period, (ii) Consolidated
Interest Expense of such person attributable to interest or dividends on any
Indebtedness, as the case may be, bearing floating interest rates should be
computed on a pro forma basis as if the rate in effect on the Transaction Date
had been the applicable rate for the entire period and (iii) Consolidated
Interest Expense will be increased or reduced by the net cost (including
amortisation of discount) or benefit (after giving effect to amortisation of
discount) associated with the Hedging Agreements and the Other 


 


40

















 


Interest Hedging Agreements, which will
remain in effect for the twelve-month period after the Transaction Date and
which shall have the effect of fixing the interest rate on the date of
computation; and


 


(c)                                  in making any determination of Consolidated EBITDA, pro forma effect
shall be given to any €5 Million Permitted Acquisition and any €5 Million Asset
Sale, in each case which occurred during the Reference Period or subsequent to
the Reference Period and prior to the Transaction Date, as if such Permitted
Acquisition, Asset Sale or other transaction, as the case may be, occurred on
the first day of the Reference Period.


 


All pro forma
determinations required above shall be made, to the extent possible, in accordance
with Regulation S-X.  For purposes of
this definition, whenever pro forma effect is to be given to any occurrence or
event, the pro forma calculation shall be determined in good faith by a
responsible financial or accounting officer of the Parent.


 


“Pro Forma Financial Statements”  means, after taking into account the
effect of the Transaction (including the incurrence of all Indebtedness), the
pro forma consolidated balance sheet of the Group as of 31 December 2003
with the related pro forma consolidated statements of income and cash flow of
the Group for the period covered thereby in the form and showing the
information agreed between the Parent and the Agent (acting on the instructions
of an Instructing Group).


 


“Projections” means the detailed projected
consolidated financial statements of the Parent and its Subsidiaries after
giving effect to the Transaction as delivered in accordance with
paragraph (c) (Projections)
of Clause 23.1 (Information Covenants).


 


“Property” of a person, means any and all
property, whether real, personal, tangible, intangible or mixed, of such
person, or other assets owned, leased, or operated by such person.


 


“Proportion”  in relation to a Lender, means:


 


(a)           in
relation to an Advance to be made under this Agreement, the proportion borne by
such Lender’s Available Commitment in respect of the relevant Facility to the
relevant Available Facility;


 


(b)           in
relation to an Advance or Advances outstanding under this Agreement, the
proportion borne by such Lender’s share of the Euro Amount of such Advance or
Advances to the total Euro Amount thereof;


 


(c)             if
paragraph (a) above does not apply and there are no Outstandings, the
proportion borne by the aggregate of such Lender’s Available Commitment to the
Available Facilities (or if the Available Facilities are then zero, by its
Available Commitment to the Available Facilities immediately prior to their
reduction to zero); and


 


(d)           if
paragraph (b) above does not apply and there are any Outstandings,
the proportion borne by such Lender’s share of the Euro Amount of the
Outstandings to the Euro Amount of all the Outstandings for the time being.


 


41

















 


“Protected Party”  means a Finance Party or any Affiliate of a Finance Party
which is or will be, subject to any Tax Liability in relation to any amount
payable under or in relation to a Finance Document.


 


“Qualified Guarantor” means each Material
Subsidiary which is a Wholly-Owned Subsidiary of the Parent, organised under
the laws of a Qualified Jurisdiction, in each case which has acceded to this
Agreement as a Guarantor and executed the required Security Documents in
accordance with the requirements of Clause 25.7 (Additional Security and Further Assurances),
provided that any Qualified Guarantor shall cease to constitute same at such
time, if any, as such Subsidiary ceases to be a Wholly-Owned Subsidiary of the
Parent or ceases to be a Material Subsidiary.


 


“Qualified Jurisdictions” means and includes
the United States, The Netherlands, England and Wales, Belgium, Luxembourg and
Australia, in each case including any states, provinces, other similar local
units therein or any additional jurisdictions so long as the Agent is
reasonably satisfied with the respective jurisdiction requested to be so
added.  The parties hereto further agree
that, in the discretion of the Agent, as a condition to the addition of any
jurisdiction to the list of Qualified Jurisdictions, the Agent may (but shall
not be required to) request the consent of the Instructing Group to such
addition and, in such event, the Agent shall be entitled to wait for such
consent before adding the respective jurisdiction to the list of Qualified
Jurisdictions.


 


“Qualified Obligors” means the Parent, the
Existing Borrower and each other Obligor which is (a) a Material
Subsidiary and (b) a Wholly-Owned Subsidiary of the Parent or a Borrower,
organised under the laws of a Qualified Jurisdiction, in each case which has
acceded to the Agreement in accordance with Clause 27.1 (Accession of New Guarantors) and executed
the required Security Documents in accordance with the requirements of
Clause 25.7 (Additional Security and
Further Assurances) provided that any Qualified Obligor shall cease
to constitute the same at such time, if any, as such Obligor ceases to be a
Wholly-Owned Subsidiary (other than the Parent) of the Parent or a Borrower or
ceases to be a Material Subsidiary.


 


“Qualified Preferred Stock” means any
preferred stock of the Parent so long as the terms of any such preferred stock:


 


(a)           do not contain any mandatory put, redemption, repayment, sinking
fund or other similar provision, except upon the occurrence of a change of
control (the definition of which shall be no more restrictive than that set
forth in the Senior Subordinated Note Indenture) so long as the terms thereof
do not require any such redemption or other action unless (and until) all
Facilities Obligations have been paid in full in cash and the aggregate amount
of the Commitments and all Documentary Credits have been terminated or the
requisite consents under this Agreement have been obtained to permit such
redemption or other action;


 


(b)           do not
require the cash payment of dividends to the extent that the payment thereof
would not be permitted at such time pursuant to this Agreement (and
refinancings, replacements or extensions hereof);


 


(c)           do not
contain any operating or financial maintenance covenants;


 


42

















 


(d)           do not
grant the holders thereof any voting rights (prior to the conversion into
Parent Common Stock, if applicable) except for (i) voting rights required
to be granted to such holders under applicable law and (ii) limited
customary voting rights on fundamental matters such as mergers, consolidations,
sales of all or substantially all of the assets of the Parent, or liquidations
involving the Parent; and


 


(e)           are otherwise reasonably satisfactory to the Agent.


 


Qualified
Preferred Stock may only be exchangeable into Parent Common Stock or additional
Qualified Preferred Stock.


 


“Quotation Date”  means, in relation to any currency and any period for which
an interest rate is to be determined:


 


(a)           in the
case of an Advance (other than a Swingline Advance):


 


(i)            if
the relevant currency is euro, 2 TARGET Days before the first day of that
period; and


 


(ii)           if the
relevant currency is dollars or an Optional Currency, 2 Business Days before
the first day of that period; and


 


(b)           in the case of a Swingline Advance, the first day of the Term of
such Advance,


 


provided that
if market practice differs in the Relevant Interbank Market for a currency, the
Quotation Date for that currency will be determined by the Agent in accordance
with market practice in the Relevant Interbank Market (and if quotations would
normally be given by leading banks in the Relevant Interbank Market on more
than one day, the Quotation Date will be the last of those days).


 


“Real Property” of any person, means all the
right, title and interest of such person in and to land, improvements and
fixtures, including Leaseholds.


 


“Receivables Facility Assets” means all
accounts receivable of any Receivables Sellers (other than any Receivables
Subsidiary) which are transferred to a Receivables Subsidiary pursuant to a
Permitted Receivables Transaction, any assets directly related thereto and any
notes issued pursuant to a Permitted Receivables Transaction.


 


“Receivables Facility Financing Costs”
means, for any period, the total consolidated interest and fee expense of the
Parent and its Subsidiaries which would have existed for such period pursuant
to a Permitted Receivables Transaction if same were structured as a secured
lending arrangement rather than as a facility for the sale of Receivables
Facility Assets.


 


“Receivables  Sellers” at any time, means the Parent and any of its Subsidiaries which is, at
such time, a person which is selling or transferring Receivables Facility
Assets to a Receivables Subsidiary pursuant to a Permitted Receivables
Transaction.


 


“Receivables  Subsidiary” means a Wholly-Owned Subsidiary of the Parent
which engages in no activities other than in connection with the financing of
accounts receivable and which is designated (as provided below) as a
Receivables Subsidiary (a) no portion of the Indebtedness or any other
obligations (contingent or otherwise) of which, (i) is guaranteed by the
Parent or any other Subsidiary of the Parent (excluding guarantees of
obligations (other than the principal 


 


43

















 


of, and interest on, Indebtedness) pursuant to Standard Securitisation
Undertakings), (ii) is recourse to or obligates the Parent or any other
Subsidiary of the Parent in any way other than pursuant to Standard
Securitisation Undertakings, or (iii) subjects any property or asset of
the Parent or any other Subsidiary of the Parent, directly or indirectly,
contingently or otherwise, to the satisfaction thereof, other than pursuant to
Standard Securitisation Undertakings, (b) with which neither the Parent
nor any of its Subsidiaries has any contract, agreement, arrangement or
understanding (other than pursuant to the Permitted Receivables Facility
Documents (including with respect to fees payable in the ordinary course of
business in connection with the servicing of accounts receivable and related
assets)) on terms less favourable to the Parent or such Subsidiary than those
that might be obtained at the time from persons that are not Affiliates of the
Parent and (c) to which neither the Parent nor any other Subsidiary of the
Parent has any obligation to maintain or preserve such entity’s financial
condition or cause such entity to achieve certain levels of operating results,
other than, up to a maximum aggregate amount of €25,000,000, for credit
enhancement purposes pursuant to Permitted Receivables Facility
Documentation.  Any such designation
shall be evidenced to the Agent by filing with the Agent an officer’s
certificate of the Parent certifying that, to the best of such officer’s
knowledge and belief after consultation with counsel, such designation complied
with the foregoing conditions.


 


“Recovery  Event”
means the receipt by the Parent or any of its Subsidiaries of any insurance or
condemnation proceeds payable (i) by reason of theft, physical destruction
or damage or any other similar event with respect to any properties or assets
of the Parent or any of its Subsidiaries, (whether under any policy of
insurance required to be maintained under Clause 23.3 (Insurance) or otherwise) and (ii) by
reason of any condemnation, taking, seizing or similar event with respect to
any properties or assets of the Parent or any of its Subsidiaries.


 


“Reference Banks”  means the principal London offices of Deutsche Bank AG, ABN
AMRO Bank N.V., ING Bank N.V. and Coöperative Centrale
Raiffeisen-Boerenleenbank B.A. or such other bank or banks as may be appointed
as such by the Agent after consultation with the Parent.


 


“Reference  Period”
has the meaning ascribed to it in the definition of “Pro Forma Basis”.


 


“Refinance” has the meaning ascribed to that
term in the definition of “Permitted
Refinancing Indebtedness” and “Refinancings”,
“Refinances” and “Refinanced” shall be construed accordingly.


 


“Regulation S-X” means U.S. Regulation S-X
promulgated by the SEC.


 


“Regulation T” means U.S. Regulation T of
the Board of Governors of the Federal Reserve System as from time to time in
effect and any successor to all or a portion thereof.


 


“Regulation U” means U.S. Regulation U of
the Board of Governors of the Federal Reserve System as from time to time in
effect and any successor to all or a portion thereof.


 


“Regulation X” means U.S. Regulation X of
the Board of Governors of the Federal Reserve System as from time to time in
effect and any successor to all or a portion thereof.


 


44














 


“Release”
means the disposing, discharging, injecting, spilling, pumping, leaking,
leaching, dumping, emitting, escaping, emptying, pouring or migrating, into or
upon any land or water or air, or otherwise entering into the environment.


 


“Relevant
Interbank Market”  means,
in relation to euro, the European interbank market and, in relation to any
Optional Currency, the London interbank market.


 


“Relevant
Interbank Rate” means:


 


(a)                                 in relation to an Advance (other than a Euro Swingline Facility
Advance) denominated in euros, EURIBOR; or


 


(b)                                 in relation to an Advance (other than a Dollar Swingline Facility
Advance) denominated in an Optional Currency, LIBOR; or


 


(c)            in relation to a Euro Swingline Facility Advance denominated in
euros, LIBOR; or


 


(d)                                 in relation to a Dollar Swingline Facility Advance, Federal Funds
Rate.


 


“Relevant
Page”  means the page of
the Reuters or Telerate screen on which is displayed in relation to EURIBOR,
the European interbank offered rates for euro and, in relation to LIBOR, BBA LIBOR
for the relevant currency, or, if such page or service shall cease to be
available, such other page or service which displays the European
interbank offered rates for euro or the London interbank offered rates for the
relevant currency as the Agent, after consultation with the Lenders and the
Parent, shall select.


 


“Renewal
Request”  means, in
relation to a Documentary Credit, a Utilisation Request therefor, in respect of
which the proposed Utilisation Date stated in it is the Expiry Date of an
existing Documentary Credit and the proposed Euro Amount is the same or less
than the Euro Amount of that existing Documentary Credit.


 


“Repayment
Date” means:


 


(a)                                in relation to any Revolving Facility Advance, Dollar Swingline
Facility Advance and Euro Swingline Facility Advance, the last day of the Term
or, if earlier, the Final Maturity Date of the Revolving Facility;


 


(b)           in respect of the Term
Facility Outstandings, each of the A Facility Repayment Dates, the D Facilities
Repayment Dates; and


 


(c)                                  in
respect of the Incremental Term Facility Outstandings, each of the Incremental
Term Facility Repayment Dates,


 


provided that if any such day is not a
Business Day in the relevant jurisdiction for payment, the Repayment Date will
be the next succeeding Business Day in the then current calendar month (if
there is one) or the preceding Business Day (if there is not).


 


“Repeating
Representations” means the representations and warranties set out in
Clauses 22.1 (Due Organisation),
22.4 (No Immunity), 22.5 (Governing Law and Judgments), 22.6 (All Actions Taken), 22.8 (Binding Obligations), 22.9 (No Winding-up), 22.11 (No  Material
Proceedings), in relation to circumstances as at the date of the
Information Memorandum, 22.15 (Information
Memorandum), 22.16 (Projections),
22.17 (Indebtedness


 


45

















 


and Liens), 22.19 (Power and Authority),
paragraph (b) of Clause 22.20 (Structure),
22.23 (Intellectual Property),
22.24 (Ownership of Assets),
22.28 (Security), 22.29 (Investment Company Act), 22.30 (Margin Stock), 22.31 (Public Utility Holding Company Act) and
22.35 (Benefits of Subordination Provisions).


 


“Replaced
Lender” has the meaning ascribed to that term in Clause 21.1 (Replacement of Lenders).


 


“Replacement
Lender” has the meaning ascribed to that term in Clause 21.1 (Replacement of Lenders).


 


“Reportable
Event” means an event described in Section 4043(c) of
ERISA with respect to a Plan that is subject to Title IV of ERISA other than
those events as to which the 30-day notice period is waived under subsection .22,
..23, .25, .27, .28 or .29 of PBGC Regulation Section 4043.


 


“Reporting
Company” means a company required to file Form 10-K Reports and
Form 10-Q Reports under the Securities Exchange Act.


 


“Restricted
Payment” means (i) the authorisation, declaration or payment of
any Dividend with respect to the Parent or any of its Subsidiaries and (ii) the
making of any payment on, or with respect to, any Affiliate Debt.


 


“Revolving
Facility”  means the
revolving loan facility (including the documentary credit facility and, where
appropriate, the Swingline Facility) granted to the Borrowers (or any of them)
pursuant to Clause 2.1(a) (The Facilities).


 


“Revolving
Facility Advance”  means
an advance (including a Rollover Advance but excluding a Documentary Credit) as
from time to time reduced by repayment made or to be made by the Lenders under
the Revolving Facility.


 


“Revolving
Facility Commitment”  means,
in relation to a Lender at any time, and save as otherwise provided in this
Agreement, the amount set opposite its name in the relevant column of Part I
of Schedule 1 (Lenders and Commitments)
(as the same may be increased from time to time pursuant to
Clause 7.2 (Incremental Revolving
Facility)), or as
specified in the Transfer Certificate pursuant to which such Lender becomes a
party to this Agreement.


 


“Revolving
Facility Lender”  means
a person (including each L/C Bank) which:


 


(a)           is
named opposite the column relating to the Revolving Facility (with a positive
amount) in Section A of Part I of Schedule 1 (Lenders and Commitments); or


 


(b)           has become a party to this Agreement in accordance with the
provisions of Clause 39 (Assignments and Transfers),


 


which in each case has not ceased to be a
party to this Agreement in accordance with the terms of this Agreement and
which, unless the context otherwise requires, includes a Swingline Facility
Lender.


 


“Revolving
Facility Margin”  means,
in relation to Revolving Facility Advances, Dollar Swingline Facility Advances
and Euro Swingline Facility Advances, 2.50 per cent. per annum.


 


46

















 


“Revolving
Facility Outstandings”  means,
at any time, the aggregate outstanding amount of each Revolving Facility
Advance and of each Outstanding L/C Amount.


 


“Rollover
Advance”  means a
Rollover Advance as defined in Clause 9.2 (Rollover
Advances).


 


“S&P”
means Standard & Poor’s Ratings Group.


 


“Sale In
Lieu of Liquidation” means any transaction whereby a Wholly-Owned
Subsidiary of the Parent (other than the Existing Borrower and Europcenter) or
a Wholly-Owned Subsidiary of the Existing Borrower (with such Subsidiary being
herein called the “Subject Subsidiary”)
is sold in accordance with the following requirements:


 


(a)           before the sale of the Subject Subsidiary, all assets (other than
cash and Cash Equivalents) and liabilities of the Subject Subsidiary are sold
or otherwise transferred to the immediate parent of the respective Subject
Subsidiary (which parent must also be the Parent or a Wholly-Owned Subsidiary
thereof) in return for which the Subject Subsidiary shall receive Cash
Equivalents (or an in-house bank balance representing an amount owed to it by
the respective purchaser) equal to the fair market value of the assets (net of
liabilities) transferred (as determined by the Parent in good faith);


 


(b)           if there is an intercompany bank balance as described in
paragraph (a) above, same shall be converted into Cash Equivalents by
the repayment of same (which payment may, but shall not be required to be, made
with proceeds of Revolving Facility Advances drawn hereunder in accordance with
the terms and conditions hereof); and


 


(c)                                  after the occurrence of the steps described in paragraph (a) above
and, if applicable, paragraph (b) above, the Subject Subsidiary shall
be sold (to a person other than the Parent or a Subsidiary or Affiliate
thereof) for cash in an amount not less than the amount of Cash Equivalents
held by the Subject Subsidiary less an arms’ length fee deemed reasonable by
the Parent in connection with the respective Sale in Lieu of Liquidation.


 


“Scheduled
Repayment” means each scheduled repayment (a) in relation to
the Revolving Facility Outstandings, as set out in and calculated in accordance
with Clause 9 (Repayment of Revolving
and Swingline Facility Outstandings) and (b) in relation to the
Term Facility Outstandings, as set out in and calculated in accordance with
Clause 10 (Repayment of Term Facility
Outstandings).


 


“Scheduled
Repayment Dates” means, in relation to the Term Facilities, the A
Facility Repayment Dates, the D Facilities Repayment Dates and the Incremental
Term Facility Repayment Dates.


 


“SEC”
means the Securities Exchange Commission or successors thereof.


 


“Secured
Obligations” means all present and future liabilities (whether
actual or contingent and whether owed jointly or severally or in any capacity
whatsoever) of the Obligors (or any one or more of them) to the Finance Parties
(or any one or more of them) under or in connection with any of them under any
or all of the Finance Documents, together with all costs, charges and expenses
incurred by any Finance Party in connection with the protection, preservation
or enforcement of its rights under the Finance Documents provided that no such 


 


47

















 


obligation or liability shall be included in
the definition of “Secured Obligations” to the extent that, if it were so
included, the Security (or any part thereof) created by any provision of
the Security Documents would be unlawful or prohibited by any applicable law.


 


“Securities
Act” means the U.S. Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.


 


“Securities
Exchange Act” means the U.S. Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.


 


“Security”  means a mortgage, charge, pledge, Lien or
encumbrance or other security interest securing any obligation of any person or
any other agreement or arrangement having a similar effect.


 


“Security
Documents”  means:


 


(a)           each
of the documents listed in Part III of Schedule 3 (Security Documents) and the Additional
Security Documents;


 


(b)           any other document
(executed at any time) conferring or evidencing any Lien, guarantee or other
assurance against financial loss for, or in respect of, any of the obligations
of the Obligors under this Agreement; and


 


(c)                                  any other document executed at any time pursuant to any covenant in
any of the Security Documents referred to in paragraph (a) or (b) above.


 


“Seller
Debt” means Indebtedness issued as consideration in connection with
one or more Permitted Acquisitions so long as (a) no person, other than
the respective Subsidiary acquired pursuant to the Permitted Acquisition, has
any liability with respect to such Indebtedness and (b) the terms of such
Indebtedness do not otherwise cause a violation of this Agreement.


 


“Senior
Indebtedness” means, in relation to any member of the Group at any
time, the aggregate amount of Indebtedness incurred in connection with the
Finance Documents and the Permitted Receivables Transactions.


 


“Senior
Subordinated Convertible Bond Agency Agreement” means the agency
agreement dated 18 December 2003 between the Parent as issuer and
Deutsche Bank AG as fiscal and paying and conversion agent.


 


“Senior
Subordinated Convertible Bond Documents” means the Senior
Subordinated Convertible Bond Agency Agreement, the Senior Subordinated
Convertible Bonds Subscription Agreement, the Senior Subordinated Convertible
Bond Offering Circular, the Senior Subordinated Convertible Bonds and each
other agreement, document or instrument relating to any issuance of Senior
Subordinated Convertible Bonds.


 


“Senior
Subordinated Convertible Bond Offering Circular” means the Offering
Memorandum dated 16 December 2003, prepared in connection with the
offering of the Senior Subordinated Convertible Bonds.


 


“Senior
Subordinated Convertible Bonds” means any convertible bonds issued
in the form of bonds under, and as defined in, the Senior Subordinated
Convertible Bonds Subscription Agreement.


 


48

















 


“Senior
Subordinated Convertible Bonds Subscription Agreement” means that
certain Subscription Agreement dated 14 November 2003, relating to
the 2 per cent. Guaranteed Subordinated Convertible Bonds due 2010
described therein, among the Parent, Deutsche Bank AG, London Branch and ABN
AMRO Rothschild as joint lead managers, as same may be amended, modified
or supplemented from time to time in accordance with the requirements of this
Agreement.


 


“Senior Subordinated
Notes Purchase Agreement” means that certain Purchase Agreement,
dated as of 26 October 1999, relating to the 121⁄4 per cent.
Senior Subordinated Notes due 2009 described therein, among the Parent, the
Existing Borrower, Deutsche Bank Securities Inc., Paribas Corporation and ABN
AMRO Incorporated, as same may be amended, modified or supplemented from
time to time in accordance with the requirements of this Agreement.


 


“Senior
Subordinated Note Documents” means each Senior Subordinated Note
Indenture,  Senior Subordinated
Notes Purchase Agreement, the Senior Subordinated Notes and each other
agreement, document or instrument relating to any issuance of Senior
Subordinated Notes.


 


“Senior
Subordinated Note Indenture” means any Indenture entered into with
respect to Senior Subordinated Notes issued from time to time by the Existing
Borrower, provided that any Indenture relating to any Senior Subordinated Notes
constituting Permitted Refinancing Indebtedness shall meet the requirements
contained in the definition of Permitted Refinancing Indebtedness.


 


“Senior
Subordinated Notes” means the Existing Borrower’s Senior
Subordinated Notes, issued in accordance with the requirements of the Senior
Subordinated Note Documents. The term “Senior Subordinated Notes” shall also
include any “exchange notes” issued in respect of such outstanding Senior
Subordinated Notes in accordance with the requirements of the relevant Senior
Subordinated Note Documents, so long as in respect of outstanding Senior
Subordinated Notes, such “exchange notes” are substantially identical to the
Senior Subordinated Notes in respect of which same were issued and so long as
the issuance of such “exchange notes” does not result in any increase to the
principal amount of Senior Subordinated Notes outstanding.


 


“Shareholders’
Agreements” means all agreements (including, without limitation,
shareholders’ agreements, subscription agreements and registration rights
agreements) entered into by the Parent or any of its Subsidiaries governing the
terms and relative rights of its share capital and any agreements entered into
by shareholders relating to any such entity with respect to its share capital.


 


“Shares”  means the ordinary share capital of the
Parent.


 


“Sharing
Event” means:


 


(a)           the occurrence of any Event
of Default with respect to any of the Obligors pursuant to any of
Clauses 28.6 (Insolvency),
28.7 (Winding-up), 28.8 (Execution or Distress) or 28.9 (Similar Events);


 


49

















 


	
  (b)

  	
   

  	
  the declaration of the termination of any
  Revolving Facility Commitments, or the acceleration of the maturity of any
  Advances, in each case pursuant to Clause 28.16 (Acceleration); or

  
	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  the failure of a Borrower (which continues
  unremedied for at least 5 Business Days) to pay any principal of, or interest
  on, Revolving Facility Advances or any Outstanding L/C Amount on the relevant
  Final Maturity Date.

  



 


“Sixth Amendment and
Restatement Agreement” means the amendment and restatement
agreement dated 18 September 2006 between the Obligors’ Agent, the
Guarantors, the Agent and the Security Trustee.


 


“Sixth Amendment and Restatement Effective Date” has the
meaning ascribed to that term in the Sixth Amendment Agreement.


 


“Standard
Securitisation Undertakings” means representations, warranties,
covenants and indemnities entered into by the Parent or any Subsidiary thereof
in connection with a Permitted Receivables Transaction which are reasonably
customary in an accounts receivable transaction.


 


“Start Date”
has the meaning ascribed to that term in the definition of “Applicable Margin”.


 


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


 


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


 


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


 


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


 


“Subsidiary”
means, as to any person, (i) any corporation more than 50 per cent.
of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes
of such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such person and/or one or
more Subsidiaries of such person and (ii) any partnership, limited
liability company, association, joint venture or other entity in which such
person and/or one or more Subsidiaries of such person has more than a
50 per cent. Equity Interest at the time.


 


“Supermajority
Lenders” of (i) any Facility (other than the D1 Facility or the
D2 Facility) means those Lenders which would constitute the Instructing Group
under, and as defined in, this Agreement if (x) all outstanding Facilities
Obligations of the other Facilities under this Agreement were repaid in full
and all Commitments, if any, with respect thereto were terminated and (y) the
percentage “50%” contained therein were changed to “662/3%” or 


 


50

















 


(ii) the D1 Facility or the D2 Facility
means those Lenders which would constitute the Instructing Group under, and as
defined in, this Agreement if (x) all outstanding Facilities Obligations
of the other Facilities under this Agreement (other than both of the D
Facilities) were repaid in full and all Commitments, if any, with respect
thereto were terminated and (y) the percentage “50%” contained therein
were changed to “662/3%”.


 


“Swingline
Facility” means the swingline facility forming part of the
Revolving Facility and granted to the Existing Borrower pursuant to
Clause 2.1(b) (The Facilities).


 


“Swingline
Facility Advance” means a Dollar Swingline Facility Advance or a
Euro Swingline Facility Advance, as the context may require.


 


“Swingline
Facility Commitment”  means,
in relation to a Swingline Facility Lender at any time, and save as otherwise
provided in this Agreement, the amount set opposite its name in the relevant
column of Section B of Part I of Schedule 1 (Lenders and Commitments) or as specified
in the Transfer Certificate pursuant to which such Lender becomes a party to
this Agreement.


 


“Swingline
Facility Lender”  means
a person which:


 


(a)           is
named in Section B of Part I of Schedule 1 (Lenders and
Commitments); or


 


(b)           has
become a party to this Agreement in accordance with the provisions of
Clause 39 (Assignments and Transfers),


 


which in each case includes any affiliate
designated by such Swingline Facility Lender to act as such with respect to all
or any part of the Swingline Facility Advances and which has not ceased to
be a party to this Agreement in accordance with the terms of this Agreement and
“Swingline Facility Lenders” means
all of them.


 


“Swingline
Facility Outstandings” means the Dollar Swingline Facility
Outstandings and the Euro Swingline Facility Outstandings.


 


“Syndication
Date”  means 31 March 2004
or such later date as may be agreed between the Arrangers and the Parent
or such earlier date specified by the Arrangers (and notified to the Agent and
the Parent) as the day on which primary syndication of the Facilities is
completed.


 


“TARGET Day”  means any day on which the
Trans-European Automated Real-time Gross Settlement Express Transfer payment
system is open for the settlement of payments in euro.


 


“Tax Credit”  means a credit against, relief or
remission for, or repayment of any tax.


 


“Tax
Deduction”  means a
deduction or withholding for or on account of tax from a payment made or to be
made under a Finance Document (but, for clarity, shall not include any tax
imposed on or measured by the net income or net profits of a Lender pursuant to
the laws and the jurisdiction (or any political subdivision therein) in which
the principal office of such Lender or the applicable lending office of such
Lender for the Finance Documents and the Transaction (or relevant part thereof)
is located, other than such tax imposed on gross-up payments covered by
Clause 18 (Taxes)).


 


“Tax
Liability”  has the
meaning set out in paragraph (e) of Clause 18.2 (Tax Indemnity).


 


51

















 


“Tax
Payment”  means the
increase in any payment made by an Obligor to a Finance Party under
paragraph (c) of Clause 18.1 (Tax Gross-up)
or any amount payable under paragraph (d) of
Clause 18.1 (Tax Gross-up)
or under Clause 18.2 (Tax Indemnity).


 


“Tax
Sharing Agreements” means all tax sharing, tax allocation and other
similar agreements entered into by the Parent or any of its Subsidiaries.


 


“Term”  means:


 


(a)                                  in relation to a Revolving Facility Advance, a Dollar Swingline
Facility Advance, a Euro Swingline Facility Advance, the period for which such
Advance is borrowed as specified in the relevant Utilisation Request; and


 


(b)           in
relation to any Documentary Credit, the period from the date of its issue until
its Expiry Date.


 


“Term
Facilities”  means the A
Facility, the D Facilities and, subject to Clause 7 (Uncommitted Incremental Facilities), the
Incremental Term Facility and “Term Facility”
means any of them as the context may require from time to time.


 


“Term
Facility Advance”  means
any A Facility Advance, D Facility Advance and, subject to Clause 7 (Uncommitted Incremental Facilities),
Incremental Term Facility Advance and “Term
Facility Advances” shall be construed accordingly.


 


“Term
Facility Commitments” means, at any time, the aggregate of the A
Facility Commitments, the D Facility Commitments and, subject to Clause 7
(Uncommitted Incremental Facilities),
the Incremental Term Facility Commitments.


 


“Term
Facility Outstandings”  means,
at any time, the aggregate of the A Facility Outstandings, the D Facility
Outstandings and, subject to Clause 7 (Uncommitted
Incremental Facilities), the Incremental Term Facility Outstandings.


 


“Termination
Date”  means:


 


(a)           in relation to the
Revolving Facility, the Swingline Facility and the Incremental Revolving
Facility, the date which is 30 days prior to the Final Maturity Date in
respect of the Revolving Facility;


 


(b)           in relation to each Term
Facility (other than the D1 Facility, the D2 Facility and the Incremental Term
Facility), the earlier of the day which is:


 


(i)            31 January 2004;
and


 


(ii)           the first Business Day on
which the Available Commitment of each of the Lenders in respect of the relevant
Term Facility is zero;


 


(c)           in
relation to the D1 Facility (other than in relation to the Anton
Acquisition Funds) and the D2 Facility, the earlier of the day which
is:


 


(i)            2 December 2005; and


 


(ii)           the Fifth Amendment and Restatement Effective Date;


 


52

















 


(d)           in relation to the Anton Acquisition Funds, 28 February 2007.


 


(e)           in relation to any Tranche
of the Incremental Term Facility, the last date by which Incremental Term
Facility Advances under such Tranche may be incurred under this Agreement,
which date shall be set out in the relevant Incremental Term Facility
Commitment Agreement but no later than the earlier of (i) 30 September 2010
and (ii) the Final Maturity Date of the D Facilities.


 


“Termination
Event” means, with respect to a Plan which is subject to Title IV of
ERISA, (a) a Reportable Event, (b) the withdrawal of the Parent, any
Subsidiary of the Parent or any ERISA Affiliate from such Plan during a plan
year in which the Parent, any Subsidiary of the Parent or any ERISA Affiliate
was a “substantial employer” as defined in Section 4001(a)(2) of
ERISA or was deemed such under Section 4062(e) of ERISA, (c) the
termination of such Plan, the filing of a notice of intent to terminate such
Plan or the treatment of an amendment of such Plan as a termination under Section 4041
of ERISA (other than a standard termination under Section 4041(b) of
ERISA), (d) the institution by the PBGC of proceedings to terminate such
Plan or (e) any event or condition which might constitute grounds under Section 4042
of ERISA for the termination of, or appointment of a trustee to administer,
such Plan.


 


“Test
Period” means, for any determination, the four consecutive fiscal
quarters of the Parent then last ended (taken as one accounting period).


 


“Third
Party Existing Indebtedness” means the list of Indebtedness existing
on the Effective Date set out in Section A (Third Party Existing Indebtedness) of Part II of Schedule 10
(Existing Indebtedness).


 


“Tranche”
means the Revolving Facility, the A Facility, the D1 Facility and the D2
Facility utilised in making Advances. In addition, and notwithstanding the
foregoing, any Incremental Term Facility Advances extended after the
Syndication Date shall, to the extent provided in Clause 7.1(c) (Constitution of each Tranche of Incremental Term
Facility), be made pursuant to one or more additional Tranches which
shall be designated pursuant to the respective Incremental Term Facility
Commitment Agreement in accordance with the relevant requirements specified in
Clause 7.1(c) (Constitution of
each Tranche of Incremental Term Facility).


 


“Transaction”
means the entering into of the Finance Documents and the incurrence of the
Outstandings and the payment of all fees and expenses in connection with the
foregoing.


 


“Transaction
Date” has the meaning ascribed to that term in the definition of “Pro
Forma Basis”.


 


“Transfer
Certificate”  means a
duly completed deed of transfer and accession in the form set out in Schedule 2
(Form of Transfer Certificate) and
signed by a Lender and a Transferee whereby such Lender seeks to procure the
transfer to such Transferee of all or a part of such Lender’s rights,
benefits and obligations under this Agreement as contemplated in Clause 39
(Assignments and Transfers) and under the
Intercreditor Deed.


 


“Transfer
Date”  means, in
relation to any Transfer Certificate, the date for the making of the transfer
as specified in such Transfer Certificate.


 


53

















 


“Transferee”  means a bank or other institution to which
a Lender seeks to transfer all or part of its rights, benefits and
obligations under this Agreement pursuant to and in accordance with
Clause 39 (Assignments and Transfers).


 


“Trust
Property” means:


 


(a)           any rights, interests or
other property and the proceeds thereof from time to time assigned,
transferred, mortgaged, charged, or pledged to and/or otherwise vested in the
Security Trustee under, pursuant to or in connection with this Agreement or any
Security Document to which the Security Trustee is a party;


 


(b)           any security interest from
time to time constituted by or pursuant to or evidenced by any Security
Document to which the Security Trustee is a party;


 


(c)           any representation,
obligation, covenant, warranty or other contractual provision in favour of the
Security Trustee (other than any made or granted solely for its own benefit)
made or granted in or pursuant to any of the Security Documents to which the
Security Trustee is a party;


 


(d)           any sum which is received
or recovered by the Security Trustee under, pursuant to or in connection with
any of the Finance Documents or the exercise of any of the Security Trustee’s
powers under or in connection therewith and which is held by the Security
Trustee upon trust on the terms of this Agreement or any Security Document to
which the Security Trustee is a party;


 


(e)           all income and other sums
at any time received or receivable by the Security Trustee in respect of Trust
Property (or any part thereof); or


 


(f)            any sum which is received
or recovered by the Security Trustee under, pursuant to or in connection with
Clause 32.7 (Parallel Debt).


 


“UCC”
means the U.S. Uniform Commercial Code as from time to time in effect in
the relevant jurisdiction.


 


“Unavailable
Revolving Facility Amount” means such amount from time to time not
applied in accordance with (A), (B) and/or (C) as referred to in
paragraph (b) (Asset Sale)
of Clause 13.1 (Repayment from Net
Proceeds) pending application during any 360 day period
referred to therein.


 


“Unfunded
Current Liability” of any Plan, means the amount, if any, by which
the actuarial present value of the accumulated plan benefits under the Plan, as
of the close of its most recent plan year, determined in accordance with
Statement of Financial Accounting Standards No. 87 and based upon the
actuarial assumptions used by the Plan’s actuary in the most recent annual
valuation of the Plan, exceeds the fair market value of the assets thereof,
determined in accordance with Section 412 of the Code, allocable to such
liabilities under Title IV of ERISA (excluding any accrued but unpaid
contributions).


 


“Unpaid Sum”
means any sum due and payable by an Obligor under any Finance Document but
unpaid.


 


54

















 


“U.S.
Guarantor” means each of the parties as set out in Part II of Schedule 1
(Original Guarantors) named as
U.S. Guarantors and any Acceding Guarantor incorporated in the United States of
America.


 


“U.S.
Lender” means, in relation to a payment of interest on a
participation in an Advance to any Borrower, a Lender which is created or
organised under the laws of the United States of America or of any state
thereof and, if the Lender is a trust, is a “United States Person” within the
meaning of Section 7701(a)(30)(E) of the Code.


 


“U.S.
Person” shall mean any person organised under the laws of the United
States or any state or territory thereof.


 


“U.S.
Subsidiary” means (a) in relation to the Parent, each
Subsidiary of the Parent that is incorporated under the laws of the United
States or any State or territory thereof and (b) in relation to a
Borrower, each Subsidiary of that Borrower that is incorporated under the laws
of the United States or any State or territory thereof.


 


“Utilisation”  means the utilisation of a Facility under
this Agreement whether by way of an Advance or the issue of a Documentary
Credit.


 


“Utilisation
Date”  means, in
relation to an Advance, the date on which such Advance is (or is requested) to
be made and, in relation to a Documentary Credit, the date on which such
Documentary Credit is to be issued under this Agreement.


 


“Utilisation
Request”  means a duly
completed notice (a) in the case of an Advance (other than a Swingline
Facility Advance) and/or a Documentary Credit in the form set out in Part I
of Schedule 4 (Form of Utilisation
Request (Term Facilities and Revolving Facility)), or (b) in
the case of a Swingline Facility Advance, in the form set out in Part II
of Schedule 4 (Form of Utilisation
Request (Swingline Facility)).


 


“Waivable
Mandatory Repayment” has the meaning ascribed to that term in
paragraph (c) (Waivable Mandatory
Repayment) of Clause 13.3 (Application
of Mandatory Prepayments.


 


“Waivable
Voluntary Repayment” has the meaning ascribed to that term in
paragraph (b) (Waivable Voluntary
Repayment) of Clause 12.3 (Application
of Voluntary Prepayments).


 


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


 


“Wholly-Owned
Non-U.S. Subsidiary” means (a) in relation to the Parent, each
Non-U.S. Subsidiary of the Parent that is also a Wholly-Owned Subsidiary of the
Parent and (b) in relation to a Borrower, each Non-U.S. Subsidiary of that
Borrower that is also a Wholly-Owned Subsidiary of that Borrower.


 


“Wholly-Owned
Subsidiary” means, as to any person, (a) any corporation
100 per cent. of whose share capital (other than directors’ qualifying
shares and other nominal amounts of shares required by applicable law to be
held by persons (other than directors)) is at the time 


 


55

















 


owned by such person and/or one or more
Wholly-Owned Subsidiaries of such person and (b) any partnership, limited
liability company, association, joint venture or other entity in which such
person and/or one or more Wholly-Owned Subsidiaries of such person has a
100 per cent. Equity Interest at such time.


 


“Wholly-Owned
U.S. Subsidiary” means (a) in relation to the Parent, each U.S.
Subsidiary of the Parent that is also a Wholly-Owned Subsidiary of the Parent
and (b) in relation to a Borrower, each U.S. Subsidiary of that Borrower
that is also a Wholly-Owned Subsidiary of that Borrower.


 


1.2          Accounting Expressions


 


All accounting expressions which are not
otherwise defined in this Agreement shall be construed in accordance with GAAP.


 


1.3          Construction


 


Unless a contrary indication appears, any
reference in this Agreement to:


 


the “Agent”, an “Arranger”, the “Security
Trustee”, a “Hedge Counterparty”, the “L/C Bank”,
an “A Facility Lender”, a “D1 Facility Lender”, a “D2 Facility Lender”, a “Revolving Facility Lender”, a “Dollar Swingline Facility Lender”, a “Euro Swingline Facility Lender”, an “Incremental Revolving
Facility Lender”, or an Incremental
Term Facility Lender” shall be construed so as to include their
respective and any subsequent successors, Transferees and permitted assigns in
accordance with their respective interests;


 


“agreed
form”  means, in
relation to any document, in the form agreed and initialled for
identification by the Arrangers and the Parent prior to the Initial Borrowing
Date;


 


“continuing”  in relation to an Event of Default or a
Default shall be construed as meaning that (a) the circumstances
constituting such Event of Default or Default continue and (b) neither the
Agent (being duly authorised to do so) nor the Lenders have waived such of its
or their rights under this Agreement as arise as a result of that event;


 


“determines”  or “determined”
means a determination made in the absolute discretion of the person making the
determination;


 


the “equivalent”  on any given date in one currency (the “first currency”) of an amount denominated
in another currency (the “second currency”)
is, unless otherwise agreed, a reference to the amount of the first currency
which could be purchased with the second currency at the Agent’s Spot Rate of
Exchange for the purchase of the first currency with the second currency;


 


“indebtedness”
includes any obligation (whether incurred as principal or as surety) for the
payment or repayment of money, whether present or future, actual or contingent
(including interest and other charges relating to it);


 


“month”  is a reference to a period starting on
one day in a calendar month and ending on the numerically
corresponding day in the next succeeding calendar month save that, where
any such period would otherwise end on a day which is not a Business Day,
it shall end on the next succeeding Business Day, unless that day falls in
the calendar month succeeding that in which it would otherwise have ended, in
which case it shall end on the immediately 


 


56

















 


preceding Business Day provided that, if a
period starts on the last Business Day in a calendar month or if there is no
numerically corresponding day in the month in which that period ends, that
period shall end on the last Business Day in that later month (and references
to “months” shall be construed
accordingly);


 


a “person”
shall be construed as a reference to any person, firm, company, corporation,
government, state or agency of a state or any association or partnership
(whether or not having separate legal personality) of two or more of the
foregoing;


 


“regulation”
includes any regulation, rule, official directive, request or guideline
(whether or not having the force of law) of any governmental, intergovernmental
or supranational body, agency, department or regulatory, self-regulatory or
other authority or organisation.


 


“tax”  shall be construed so as to include all
present and future taxes, charges, imposts, duties, levies, deductions or
withholdings of any kind whatsoever, or any amount payable to any governmental
authority on account of or as security for any of the foregoing, by whomsoever
on whomsoever and wherever imposed, levied, collected, withheld or assessed
together with any penalties, additions, fines, surcharges or interest relating
to it; and “taxes”  and “taxation”  shall be construed accordingly;


 


“VAT”  shall be construed as value added tax as
provided for in the Value Added Tax Act 1994 and legislation (or purported
legislation and whether delegated or otherwise) supplemental to that Act or in
any primary or secondary legislation promulgated by the European Community or
European Union or any official body or agency of the European Community or
European Union, and any tax similar or equivalent to value added tax imposed by
any country other than the United Kingdom and any similar or turnover tax
replacing or introduced in addition to any of the same; and


 


the “winding-up”,
“dissolution” or “administration” of a company or corporation
shall be construed so as to include any equivalent or analogous proceedings
under the Law of the jurisdiction in which such company or corporation is
incorporated or any jurisdiction in which such company or corporation carries
on business, including the seeking of liquidation, winding-up, reorganisation,
dissolution, administration, arrangement, adjustment, protection from creditors
or relief of debtors.


 


1.4          Currency


 


“€”
and “euro” denote the lawful
currency of each Participating Member State, “£”
and “sterling” denote the lawful
currency of the United Kingdom and “$”
and “dollar” denote the lawful
currency of the United States of America.


 


1.5          Statutes


 


Any reference in this Agreement to a statute
or a statutory provision (including any reference to the Board of Governors of
the Federal Reserve System of the United States) shall, save where a contrary
intention is specified, be construed as a reference to such statute or
statutory provision as the same shall have been, or may be, amended or
re-enacted.


 


1.6          Time


 


Any reference in this Agreement to a time
shall, unless otherwise specified, be construed as a reference to London time.


 


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1.7          References to Agreements


 


Unless otherwise stated, any reference in
this Agreement to any agreement or document (including any reference to this
Agreement) shall be construed as a reference to:


 


(a)           such agreement or document as amended, varied, novated,
supplemented, extended, renewed, refinanced or replaced from time to time;


 


(b)           any other agreement or document whereby such agreement or document
is so amended, varied, supplemented or novated; and


 


(c)           any other agreement or document entered into pursuant to or in
accordance with any such agreement or document.


 


1.8          Documentary Credits


 


Any reference in this Agreement to:


 


(a)           an amount borrowed includes any amount utilised by way of
Documentary Credit;


 


(b)           a Lender funding its participation in a Utilisation includes an
Indemnifying Lender participating in a Documentary Credit;


 


(c)           amounts outstanding under this Agreement include amounts outstanding
under, or in relation to, any Documentary Credit;


 


(d)           an outstanding amount of a Documentary Credit at any time is the
maximum amount that is or may be payable by a Borrower in respect of that
Documentary Credit at that time;


 


(e)           a Borrower “repaying” a
Documentary Credit means:


 


(i)            that Borrower providing cash cover for that Documentary Credit;


 


(ii)           the maximum amount payable under the Documentary Credit being
reduced in accordance with its terms; or


 


(iii)          the L/C Bank being satisfied that it has no further liability under
that Documentary Credit,


 


and that the amount by which a
Documentary Credit is repaid under sub-paragraphs (e)(i) and (e)(ii) above
is the amount of the relevant cash cover or reduction; and


 


(f)            a Borrower providing “cash cover”  for a Documentary Credit means that
Borrower paying an amount (x) at any time prior to the occurrence of a
Sharing Event in the currency of the Documentary Credit and (y) at any
time on or after the occurrence of a Sharing Event, in euros, to an
interest-bearing account in the name of that Borrower and the following
conditions are met:


 


(i)                                   the account is with the Agent (if the cash cover is to be provided
for all the Indemnifying Lenders) or with an Indemnifying Lender or the L/C
Bank (if 


 


58

















 


the cash cover is to be
provided for that Indemnifying Lender or the L/C Bank, as the case may be);


 


(ii)           withdrawals from the account may only be made to pay a Finance
Party amounts due and payable to it under this Agreement in respect of that
Documentary Credit until no amount is or may be outstanding under that
Documentary Credit; and


 


(iii)         that Borrower has executed a security document over that account, in
form and substance satisfactory to the Agent or the Finance Party with
which that account is held, creating a first ranking security interest over
that account,


 


or
on such other terms as may be satisfactory to the Agent, the relevant
Indemnifying Lender or the L/C Bank.


 


2.             THE FACILITIES


 


2.1          The Facilities


 


(a)           The Revolving Facility Lenders grant to the Borrowers, upon the
terms and subject to the conditions of this Agreement, a revolving loan
facility in a maximum aggregate amount of €255,000,000 (the “Revolving Facility”) or its equivalent from
time to time in Optional Currencies.


 


(b)           The Swingline Facility Lenders grant to the Borrowers, upon the
terms and subject to the conditions of this Agreement, a swingline facility
(being part of the Revolving Facility) in a maximum aggregate Euro Amount
of €85,000,000 (the “Swingline Facility”).


 


(c)           The A Facility Lenders grant to the Existing Borrower upon the terms
and subject to the conditions of this Agreement, a term loan facility in a
maximum aggregate amount of €120,000,000 (the “A Facility”).


 


(d)           The D1 Facility Lenders grant to the Existing Borrower upon the
terms and subject to the conditions of this Agreement, a term loan facility in
a maximum aggregate amount of €305,000,000 plus the amount of Anton Acquisition
Funds (the “D1 Facility”) or its equivalent from time to time in Optional
Currencies (it being agreed that the equivalent in dollars on the Initial
Borrowing Date is an amount equal to $380,000,000).


 


(e)           The D2 Facility Lenders grant to the Existing Borrower upon the
terms and subject to the conditions of this Agreement, a term loan facility in
a maximum aggregate amount of €50,000,000, (the “D2 Facility”).


 


(f)            The Incremental Revolving Facility Lenders grant to the Borrowers
upon the terms and subject to the conditions of this Agreement (including,
without limitation, Clause 7 (Uncommitted
Incremental Facilities), and relevant Incremental Revolving Facility
Commitment Agreements, a revolving loan facility in a maximum aggregate amount
of €65,000,000 (the “Incremental Revolving
Facility”) or its equivalent from time to time in Optional
Currencies.


 


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(g)           The Incremental Term Facility Lenders grant to the Borrowers upon
the terms and subject to the conditions of this Agreement (including, without
limitation, Clause 7 (Uncommitted
Incremental Facilities)), and relevant Incremental Term Facility
Commitment Agreements, a term loan facility in a maximum aggregate amount equal
to the euro equivalent of $500,000,000 (excluding all amounts borrowed prior to
the Fifth Amendment and Restatement Effective Date) (the “Incremental Term Facility”) or its
equivalent from time to time in Optional Currencies.


 


2.2          Purpose


 


(a)           The A Facility and the D Facilities (excluding the Anton Acquisition
Funds) are intended to finance, in whole, the Existing Credit Agreement,
including, in each case, any fees and expenses in relation thereto. The Anton
Acquisitions Funds are intended to finance the consideration payable in
relation to the Anton Acquisition including any fees and expenses in relation
thereto, and the general corporate purposes of the Group.


 


(b)           The Revolving Facility and the Incremental Revolving Facility are
intended to finance the general working capital requirements and the general
corporate purposes of the Group and may be utilised by way of Revolving
Facility Advances or Documentary Credits.


 


(c)           The Swingline Facility is intended to finance the general working
capital requirements and general corporate purposes of the Group.


 


(d)           The Incremental Term Facility is intended to finance Permitted
Acquisitions and the redemption or repurchase of the Senior Subordinated Notes
or New Senior Subordinated Notes (including, without limitation, any related
redemption or repurchase fees).


 


(e)           The Borrowers shall apply all amounts borrowed under this Agreement
in or towards satisfaction of the purposes referred to in paragraphs (a), (b), (c) and
(d) of this Clause 2.2 and none of the Finance Parties shall be
obliged to concern themselves with such application.


 


2.3          Several Obligations


 


The obligations of each Finance Party under
this Agreement are several and the failure by a Finance Party to perform any
of its obligations under this Agreement shall not affect the obligations of any
of the other parties to this Agreement towards any other party to this
Agreement nor shall any other party be liable for the failure by such Finance
Party to perform its obligations under this Agreement.


 


2.4          Several Rights


 


The rights of each Finance Party are several
and any debt arising under this Agreement at any time from an Obligor to any
Finance Party to this Agreement shall be a separate and independent debt. Each
Finance Party may, except as otherwise stated in this Agreement, separately
enforce its rights under this Agreement.


 


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3.            CONDITIONS


 


3.1          Conditions
Precedent


 


The obligations of
the Finance Parties under this Agreement shall be conditional upon the Agent
having confirmed to the Parent that it has received the documents listed in Part I
of Schedule 3 (Conditions Precedent to
First Utilisation) and that each is satisfactory, in form and
substance, to the Agent acting reasonably. 
The Agent shall notify the Parent and the Lenders promptly upon being so
satisfied.


 


3.2          Conditions
Subsequent


 


The Parent shall procure (and each relevant Obligor shall ensure) that:


 


(a)           as soon as practicable after the Initial Borrowing Date under this
Agreement and in any event by no later than 31 January 2004 there
shall have been delivered to the Agent each of the documents listed in Section A
of Part IV of Schedule 3 (Conditions
Subsequent Documents); and


 


(b)           within
3 months after the Initial Borrowing Date there shall have been delivered to
the Agent each of the documents listed in Section B of Part IV of
Schedule 3 (Conditions Subsequent Documents),


 


each in form and
substance satisfactory to the Agent.  The
Agent shall notify the Parent and the Lenders promptly upon being so satisfied.


 


4.            UTILISATION


 


4.1          Conditions
to Utilisation


 


Save as otherwise
provided in this Agreement, an Advance (other than a Swingline Facility Advance
or an Incremental Term Facility Advance) will be made by the Lenders to a
Borrower or a Documentary Credit will be issued by an L/C Bank at a Borrower’s
request if:


 


(a)           the Agent has received from the relevant Borrower a duly completed
Utilisation Request stating whether the proposed Utilisation is to be by way of
Advance or Documentary Credit not later than 9.30 a.m. on a day which
is:


 


(i)            no
more than 10 nor less than 2 Business Days prior to the proposed Utilisation
Date for such Advance; or


 


(ii)           no
more than 10 nor less than 4 Business Days prior to the proposed Utilisation
Date for such Documentary Credit,


 


receipt of which shall oblige that Borrower to borrow
the amount requested on the date stated upon the terms and subject to the
conditions contained in this Agreement provided that no Utilisation Request
under the Revolving Facility shall be made prior to the first Utilisation
Request under the Term Facilities;


 


(b)           the
proposed Utilisation Date is a Business Day for the proposed currency of the
Advance or Documentary Credit, as the case may be, which is or precedes the
relevant Termination Date;


 


61

















 


(c)           in
the case of a Utilisation by way of an A Facility Advance, the proposed Euro
Amount of such Advance is equal to €120,000,000;


 


(d)           in
the case of a Utilisation by way of a D1 Facility Advance prior to the Sixth
Amendment and Restatement Effective Date, the proposed Euro Amount of such
Advance is equal to €305,000,000 (it being agreed that the equivalent in
dollars is an amount equal to $380,000,000);


 


(e)           in
the case of the Utilisation by way of D1 Facility Advance in relation to the
Anton Acquisition Funds, the proposed amount of such Advance is equal to the
total amount of the relevant Anton Acquisition Funds;


 


(f)            in
the case of a Utilisation by way of a D2 Facility Advance the proposed Euro
Amount of such Advance is equal to €50,000,000;


 


(g)           in
the case of a Utilisation by way of a Revolving Facility Advance, the proposed
Euro Amount of such Advance is (i) equal to the amount of the
corresponding Available Revolving Facility (minus the Unavailable Revolving
Facility Amount (if any)) or (ii) less than such amount but equal to, or
an integral multiple of, €1,000,000;


 


(h)           in
the case of a Utilisation by way of Documentary Credit, the proposed Euro
Amount of such Documentary Credit is equal to or less than the amount of the
Available Revolving Facility (minus the Unavailable Revolving Facility Amount
(if any));


 


(i)            in
the case of a Utilisation by way of a Revolving Facility Advance, (i) at
any time prior to the Syndication Date, immediately after the making of such
Advance there will be no more than 3 Revolving Facility Advances outstanding
and (ii) at any time after the Syndication Date, immediately after the
making of such Advance there will be no more than 10 Revolving Facility
Advances (for the avoidance of doubt not including any Swingline Facility
Advances) outstanding;


 


(j)            in
the case of a Utilisation by way of a Documentary Credit, the proposed Term of
the Documentary Credit is a period not exceeding 364 days, ending on or
before the Termination Date in respect of the Revolving Facility;


 


(k)           in
the case of a Utilisation by way of a Revolving Facility Advance, the proposed
Term of such Revolving Facility Advance is a period of one week, two weeks, or
1, 2, 3 or 6 months or such other period as the Agent may agree, and ends on or
before the Final Maturity Date of the Revolving Facility provided that, save as
the Agent may otherwise agree, prior to the Syndication Date the Term of each
Revolving Facility Advance shall be 1 week or 1 month (or, such duration as is
necessary to ensure that such Term ends on the Syndication Date);


 


(l)            in
the case of a Utilisation by way of an Advance other than a Rollover Advance,
the interest rate applicable to such Advance’s first Interest Period or Term
(as the case may be) will not have to be determined under Clause 16 (Market Disruption and Alternative Interest Rates);


 


(m)          in the case of a
Utilisation by way of a Documentary Credit, the L/C Bank and the Agent have
each approved the terms of such Documentary Credit (which, unless the Agent and
the L/C Bank otherwise agree in writing, shall be in such form customarily 


 


62

















 


used by the
L/C Bank or in such other form as has been approved by the L/C Bank and shall
specify the purpose of its issue, the name and address of the Beneficiary of
it, the Beneficiary’s receiving bank account and its Expiry Date);


 


(n)           in the case of any Utilisation:


 


(i)            in
the case of a Rollover Advance or a Documentary Credit which is being renewed
pursuant to Clause 5.2 (Renewal of
Documentary Credits), no Event of Default is continuing or would
result from the proposed Rollover Advance or the renewal of that Documentary
Credit and, in the case of any other Utilisation, no Default is continuing or
would result from the proposed Utilisation; and


 


(ii)           save
in the case of a Rollover Advance, the Repeating Representations made by each
Obligor are true and correct in all material respects on the relevant
Utilisation Date by reference to the circumstances then existing; and


 


(o)           in
relation to the first Utilisation requested under this Agreement, the Agent is
reasonably satisfied that the Parent will comply with its obligations under
Clause 3.2 (Conditions Subsequent).


 


4.2          Conditions
to Utilisation of Incremental Term Facility


 


(a)           Conditions to Incremental Term Facility
Commitments: Subject to and upon the terms and
conditions set forth in Clause 7 (Uncommitted
Incremental Facilities) and the relevant Incremental Term Facility
Commitment Agreement, each Lender with an Incremental Term Facility Commitment
for a given Tranche of Incremental Term Facility Advances severally agrees, at
any time and from time to time on and after the date that such Incremental Term
Facility Commitment is obtained pursuant to Clause 7 (Uncommitted Incremental Facilities) and
prior to the relevant Termination Date for such Tranche of Incremental Term
Facility Advances, to make a term loan or term loans (each an “Incremental Term Facility Advance” and, collectively, the “Incremental
Term Facility Advances”) to the relevant Borrower
for such Tranche.  Such Incremental Term
Facility Advances:


 


(i)            shall
be incurred on an Incremental Term Facility Utilisation Date;


 


(ii)           shall
be denominated in the Applicable Currency for such Tranche of Incremental Term
Facility Advances;


 


(iii)         shall, if an Alternate Currency Incremental Term Facility Advance,
at the option of that Borrower, be incurred and maintained in one or more
borrowings of Alternate Currency Incremental Term Facility Advances under such
Tranche; and


 


(iv)          shall
not exceed for any such Incremental Term Facility Lender at the time of any
incurrence thereof, that aggregate principal amount which equals the
Incremental Term Facility Commitment of such Incremental Term Facility Lender
for such Tranche at such time (before giving effect to any reduction thereof at
such time pursuant to paragraph (c) of this Clause 4.2).


 


63

















 


(b)           Utilisation Request:
Save as otherwise provided in this Agreement and/or the relevant Incremental
Term Facility Commitment Agreement, an Incremental Term Facility Advance will
be made by the Lenders to a Borrower at that Borrower’s request if the Agent
has received at any time after the Syndication Date from that Borrower a duly
completed Utilisation Request in relation to an Incremental Term Facility
Advance not later than 10.00 a.m. on a day which is no more than 10
nor less than 3 Business Days prior to the proposed Utilisation Date for such
Advance stating:


 


(i)            the
aggregate principal amount of such Advance (stated in the Applicable Currency,
as the case may be);


 


(ii)           the
Incremental Term Facility Utilisation Date;


 


(iii)                           in the case of an Alternate Currency Incremental Term Facility
Advance, the Optional Currency; and


 


(iv)          whether
such Advance constitutes part of the D Facilities or Incremental Term Facility,


 


receipt of which shall oblige such Borrower to borrow
the amount requested on the date stated upon the terms and subject to the
conditions contained in this Agreement and the relevant Incremental Term
Facility Commitment Agreement.


 


(c)           Reduction of Incremental Term Facility Commitment: The total Incremental Term Facility Commitments under a given
Tranche shall (i) be permanently reduced on each Incremental Term Facility
Utilisation Date in respect of such Tranche in an amount equal to the aggregate
principal amount of Incremental Term Facility Advances of such Tranche incurred
on each such date, (ii) terminate in its entirety to the extent not
theretofore terminated on the Termination Date for such Tranche of Incremental
Term Facility Advances (after giving effect to any Incremental Term Facility
Advances of such Tranche to be made on such date) and (iii) prior to the
termination of the total Incremental Term Facility Commitment in respect of
such Tranche, be permanently reduced from time to time to the extent required
by Clause 13.3 (Application of
Mandatory Prepayments).


 


(d)           Application of Reduction of Incremental Term
Facility Commitment: Each reduction to, and/or
termination of the total Incremental Term Facility Commitment under a given
Tranche pursuant to this Clause 4.2 shall be applied proportionately and
permanently to reduce, and/or terminate the Incremental Term Facility
Commitment of each Lender with such a Commitment under such Tranche provided
that any mandatory reduction to the Incremental Term Facility Commitments
pursuant to Clause 13.3 (Application of
Mandatory Prepayments) shall be applied proportionately and
permanently to reduce the Incremental Term Facility Commitments of all Lenders
for all Tranches on a pro rata basis
(based on the then remaining amounts of such Incremental Term Facility
Commitments).


 


4.3           Lenders’
Participations


 


Each Lender will
participate through its Facility Office in each Advance made pursuant to
Clause 4.1 (Conditions to Utilisation), the
relevant Incremental Revolving Facility 


 


64

















 


Commitment
Agreement and the relevant Incremental Term Facility Commitment Agreement in
its respective Proportion.


 


5.            DOCUMENTARY CREDITS


 


5.1           Issue
of Documentary Credits


 


(a)           Each L/C Bank shall issue Documentary Credits pursuant to
Clause 4.1 (Conditions to Utilisation) by:


 


(i)            completing
the issue date and the proposed Expiry Date of any Documentary Credit to be
issued by it; and


 


(ii)           executing
and delivering such Documentary Credit to the relevant Beneficiary on the
relevant Utilisation Date.


 


(b)           Each
Lender having a Revolving Facility Commitment (an “Indemnifying
Lender”) will participate in each Documentary
Credit in an amount equal to its L/C Proportion.


 


(c)           The
Agent shall notify the L/C Bank and each Indemnifying Lender of the details of
any requested Documentary Credit (including the Euro Amount of it, and, if such
Documentary Credit is not to be denominated in euro, the Optional Currency in
which it will be denominated and the amount of it) and its participation in
that Documentary Credit.


 


5.2           Renewal
of Documentary Credits


 


(a)           A
Borrower may request that a Documentary Credit issued on its behalf be renewed
by delivering to the Agent a Renewal Request which complies with
Clause 4.1 (Conditions to Utilisation).


 


(b)           The terms of each renewed Documentary Credit shall be the same as
those of the relevant Documentary Credit immediately prior to its renewal,
except that (as stated in the Renewal Request therefor):


 


(i)            its
amount may be less than the amount of such Documentary Credit immediately prior
to its renewal; and


 


(ii)           its
Term shall start on the date which was the Expiry Date of that Documentary
Credit immediately prior to its renewal, and shall end on the proposed Expiry
Date specified in the Renewal Request.


 


(c)            If
the conditions set out in this Agreement have been met, the L/C Bank shall
amend and re-issue a Documentary Credit pursuant to a Renewal Request.


 


5.3           Revaluation
of Documentary Credits


 


(a)            If
any Documentary Credit is denominated in an Optional Currency and has a Term of
more than 6 months, the Agent shall at monthly intervals after the date of such
Documentary Credit recalculate the Euro Amount of that Documentary Credit by
notionally converting into euro the outstanding amount of that Documentary
Credit on the basis of the Agent’s Spot Rate of Exchange on the date of
calculation.


 


65

















 


(b)           A
Borrower shall, if requested by the Agent within 2 Business Days of any
calculation under paragraph (a) above, ensure that on the last day
of the Term of the next maturing Revolving Facility Advance sufficient
Revolving Facility Outstandings are repaid to prevent the Euro Amount of the
Revolving Facility Outstandings exceeding the aggregate amount of all of the
Revolving Facility Commitments adjusted to reflect any cancellations or
reductions, following any adjustment under paragraph (a) above.


 


5.4          Immediately
Payable


 


If a Documentary
Credit or any amount outstanding under a Documentary Credit is expressed to be
immediately payable, the relevant Borrower shall repay that amount immediately.


 


5.5          Claims
under a Documentary Credit


 


(a)           The
relevant Borrower irrevocably and unconditionally authorises the L/C Bank to
pay any claim made or purported to be made under a Documentary Credit requested
by it and which appears on its face to be in order (a “claim”).


 


(b)           The
relevant Borrower shall within 3 Business Days of demand pay to the Agent for
the L/C Bank an amount equal to the amount of any claim.


 


(c)           The relevant Borrower acknowledges that the L/C Bank:


 


(i)                                    is not obliged to carry out any investigation or seek any
confirmation from any other person before paying a claim; and


 


(ii)           deals
in documents only and will not be concerned with the legality of a claim or any
underlying transaction or any available set-off, counterclaim or other defence
of any person.


 


(d)           The obligations of the relevant Borrower under this Clause will not
be affected by:


 


(i)            the
sufficiency, accuracy or genuineness of any claim or any other document; or


 


(ii)           any
incapacity of, or limitation on the powers of, any person signing a claim or
other document.


 


5.6          Documentary
Credit Indemnities


 


(a)           The
relevant Borrower shall immediately on demand indemnify the L/C Bank against
any cost, loss or liability incurred by the L/C Bank (otherwise than by reason
of the L/C Bank’s gross negligence or wilful misconduct) in acting as the L/C
Bank under any Documentary Credit requested by that Borrower.


 


(b)           Without
limiting the obligation of the relevant Borrower under paragraph (a) above,
each Indemnifying Lender shall (according to its L/C Proportion) immediately on
demand indemnify the L/C Bank against any cost, loss or liability incurred by
the L/C Bank (otherwise than by reason of the L/C Bank’s gross negligence or
wilful misconduct) in acting as the L/C Bank under any Documentary Credit
(unless the L/C Bank has been reimbursed by an Obligor pursuant to a Finance
Document).


 


66

















 


(c)           If
any Indemnifying Lender is not permitted (by its constitutional documents or
any applicable Law) to comply with paragraph (b) above, then that
Indemnifying Lender will not be obliged to comply with paragraph (b) and
shall instead be deemed to have taken, on the date the relevant Documentary
Credit is issued (or if later, on the date that Indemnifying Lender’s
participation in the Documentary Credit is transferred or assigned to that
Indemnifying Lender in accordance with the terms of this Agreement), an
undivided interest and participation in the Documentary Credit in an amount
equal to its L/C Proportion of that Documentary Credit.  On receipt of demand from the Agent, that
Indemnifying Lender shall pay to the Agent (for the account of the L/C Bank) an
amount equal to its L/C Proportion of the amount demanded under paragraph (b) above.


 


(d)           The
relevant Borrower shall immediately on demand reimburse any Indemnifying Lender
for any payment it makes to the L/C Bank under this Clause 5.6 in respect
of that Documentary Credit.


 


(e)           The
obligations of each Indemnifying Lender under this Clause 5.6 are
continuing obligations and will extend to the ultimate balance of sums payable
by that Indemnifying Lender in respect of any Documentary Credit, regardless of
any intermediate payment or discharge in whole or in part.


 


(f)            The obligations of any Indemnifying Lender under this
Clause 5.6 will not be affected by any act, omission, matter or thing
which, but for this Clause 5.6 would reduce, release or prejudice any of
its obligations under this Clause 5.6 (without limitation and whether or
not known to it or any other person) including:


 


(i)                                    any time, waiver or consent granted to, or composition with, any
Obligor, any beneficiary under a Documentary Credit or other person;


 


(ii)           the
release of any Obligor or any other person under the terms of any composition
or arrangement with any creditor or any member of the Group;


 


(iii)                           the taking, variation, compromise, exchange, renewal or release of,
or refusal or neglect to perfect, take up or enforce, any rights against, or
security over assets of, any Obligor, any beneficiary under a Documentary
Credit or other person or any non-presentation or non-observance of any
formality or other requirement in respect of any instrument or any failure to
realise the full value of any security;


 


(iv)          any
incapacity or lack of power, authority or legal personality of or dissolution
or change in the members or status of an Obligor, any beneficiary under a
Documentary Credit or any other person;


 


(v)                                  any amendment (however fundamental) or replacement of a Finance
Document, any Documentary Credit or any other document or security;


 


(vi)          any
unenforceability, illegality or invalidity of any obligation of any person
under any Finance Document, any Documentary Credit or any other document or
security; or


 


(vii)         any
insolvency or similar proceedings.


 


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5.7          Rights
of Contribution


 


No Obligor will be
entitled to any right of contribution or indemnity from any Finance Party in
respect of any payment it may make under this Clause 5 (Documentary Credits).


 


5.8          Role of
the L/C Bank


 


(a)           Nothing
in this Agreement constitutes the L/C Bank as a trustee or fiduciary of any
other person.


 


(b)           The
L/C Bank shall not be bound to account to any Lender for any sum or the profit
element of any sum received by it for its own account.


 


(c)           The L/C Bank may accept deposits from, lend money to and generally
engage in any kind of banking or other business with any member of the Group.


 


(d)           The L/C Bank may rely on:


 


(i)            any
representation, notice or document believed by it to be genuine, correct and
appropriately authorised; and


 


(ii)           any
statement made by a director, authorised signatory or employee of any person
regarding any matters which may reasonably be assumed to be within his
knowledge or within his power to verify.


 


(e)           The
L/C Bank may engage, pay for and rely on the advice or services of any lawyers,
accountants, surveyors or other experts.


 


(f)            The
L/C Bank may act in relation to the Finance Documents through its personnel and
agents.


 


(g)           The L/C Bank is not responsible for:


 


(i)            the
adequacy, accuracy and/or completeness of any information (whether oral or
written) supplied by the L/C Bank, the Agent, the Arrangers, an Obligor or any
other person given in or in connection with any Finance Document; or


 


(ii)           the
legality, validity, effectiveness, adequacy or enforceability of any Finance
Document or any other agreement, arrangement or document entered into, made or
executed in anticipation of or in connection with any Finance Document.


 


5.9          Exclusion
of Liability


 


(a)           Without
limiting paragraph (b) below, the L/C Bank will not be liable for any
action taken by it under or in connection with any Finance Document, unless
directly caused by its gross negligence or wilful misconduct.


 


(b)           No
Finance Party (other than the L/C Bank) may take any proceedings against any
officer, employee or agent of the L/C Bank in respect of any claim it might
have against the L/C Bank or in respect of any act or omission of any kind by
that officer, employee or agent in relation to any Finance Document.


 


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5.10        Credit
Appraisal by the Indemnifying Lenders


 


Without affecting
the responsibility of any Obligor for information supplied by it or on its
behalf in connection with any Finance Document, each Indemnifying Lender
confirms to the L/C Bank that it has been, and will continue to be, solely
responsible for making its own independent appraisal and investigation of the
risks arising under or in connection with any Finance Document, including but
not limited to, those listed in paragraphs (a) to (d) of
Clause 31.15 (Credit Appraisal by the
Lenders).


 


5.11        Appointment
and Change of L/C Bank


 


(a)           The
Agent, with the prior approval of the relevant Lender, the Parent and an
Instructing Group, may designate any Lender with a Revolving Facility
Commitment as an L/C Bank or as a replacement therefor, but not with respect to
Documentary Credits already issued by any other L/C Bank.


 


(b)           Any
Lender so designated shall become an L/C Bank under this Agreement by
delivering to the Agent an executed L/C Bank Accession Certificate.


 


(c)                                 An L/C Bank may resign as issuer of further Documentary Credits at
any time on or after the first anniversary of the Initial Borrowing Date under
this Agreement or if later, the first anniversary of the date of its
appointment as L/C Bank under this Agreement by giving not less than 3 months’
prior written notice to the Agent and the Parent to expire on or after such first
anniversary if (i) the Parent and an Instructing Group consent to it or so
require, (ii) there is, in the reasonable opinion of the L/C Bank, an
actual or potential conflict of interest in it continuing to act as L/C Bank,
or (iii) its Revolving Facility Commitment is reduced to zero.


 


(d)           If
the L/C Bank does so resign and no replacement is appointed, any Documentary
Credit to be issued in accordance with the terms of this Agreement will be
issued by the Agent on behalf of the Lenders with Revolving Facility
Commitments severally in an amount reflecting their respective L/C Proportions
at the date of issue thereof.


 


5.12        Assumption
of Existing Documentary Credits


 


Each of the
Existing Documentary Credits (including any extension or renewal thereof) shall
constitute a Documentary Credit issued for the purposes of Clause 4.1 (Conditions to Utilisation) on the Initial
Borrowing Date and the respective issuer thereof shall constitute the “L/C Bank”
for the purposes of this Agreement.


 


6.             SWINGLINE FACILITIES


 


6.1          Conditions
to Utilisation of Swingline Facilities


 


Save as otherwise provided in this Agreement, a Swingline Facility
Advance will be made by the respective Swingline Facility Lenders to a Borrower
at such  Borrower’s request if:


 


(a)           the
Agent has received from that Borrower a duly completed Utilisation Request
stating whether the proposed Swingline Facility Advance is a Dollar Swingline
Facility Advance or a Euro Swingline Facility Advance:


 


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(i)            in
the case of a Dollar Swingline Facility Advance, not later than 12.00 p.m.
(New York time) on the proposed Utilisation Date for such Advance; or


 


(ii)           in
the case of a Euro Swingline Facility Advance, not later than 12.00 p.m.
(London time) on the proposed Utilisation Date for such Advance,


 


receipt of which shall oblige that Borrower to borrow
the amount requested on the date stated upon the terms and subject to the
conditions contained in this Agreement provided that no Utilisation Request
under the Swingline Facility shall be made prior to the first Utilisation
Request under the Term Facilities;


 


(b)           the
proposed Utilisation Date is a Business Day for the proposed Swingline Facility
Advance which is or precedes the relevant Termination Date;


 


(c)                                 the proposed Euro Amount of such Swingline Facility Advance is (i) equal
to the amount of the corresponding Available Swingline Facility or (ii) less
than such amount but equal to, or an integral multiple of (A) in the case
of a Dollar Swingline Advance, $100,000 and (B) in the case of a Euro
Swingline Advance, €100,000;


 


(d)           the
aggregate amount of Revolving Facility Outstandings and Swingline Facility
Outstandings would not, immediately after making such Swingline Facility
Advance, exceed the aggregate Revolving Facility Commitments of the Revolving
Facility Lenders;


 


(e)                                 the proposed Term of the Swingline Facility Advance requested is a
period not exceeding 3 months ending on or before the Final Maturity Date in
respect of the Revolving Facility;


 


(f)            the
Utilisation Request is sent to the Agent at the address referred to in
Clause 42 (Notices and Delivery of
Information) and confirmed by a telephone call to the telephone
number referred to in Clause 42 (Notices
and Delivery of Information); and


 


(g)           Without
in any way limiting the obligation of that Borrower set out in paragraph (f) above,
the Agent may act without liability upon the basis of a telephone call of such
Utilisation believed by the Agent in good faith to be from an Authorised
Representative of that Borrower prior to receipt of the Utilisation Request.  In each such case, that Borrower hereby
waives the right to dispute the Agent’s record of the terms of such telephone
call in the absence of manifest error.


 


6.2          General
Conditions to Utilisation of Swingline Facility Advances


 


If a Borrower
requests a Swingline Facility Advance in accordance with Clause 6.1 (Conditions to Utilisation of Swingline Facilities);
and, on the proposed date for the making of such Swingline Facility Advance:


 


(a)           neither
of the events mentioned in Clause 16.1 (Market
Disruption) shall have occurred;


 


(b)           the
Euro Amount of such Swingline Facility Advance does not exceed either the
Available Swingline Facility or the Available Revolving Facility;


 


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(c)           there
would not, immediately after the making of such Advance, be more than
10 Euro Swingline Facility Advances outstanding; and


 


(d)           on and as of the proposed date for the making of such Advance:


 


(i)            no
Default is continuing or would result from the making of such Advance;


 


(ii)           no
Lender Default exists (unless the Swingline Facility Lenders have entered into
arrangements satisfactory to them to eliminate the Swingline Facility Lenders’
risk with respect to the Defaulting Lender’s or Lenders’ participation in such
Swingline Facility Advance); and


 


(iii)                           the Repeated Representations made by each Obligor are true in all
material respects on the relevant Utilisation Date by reference to the
circumstances then existing,


 


then, save as
otherwise provided herein, such Swingline Facility Advance will be made in
accordance with the provisions hereof.


 


6.3          Completion
of a Utilisation Request for Swingline Facility Advances


 


Each Utilisation
Request for a Swingline Facility Advance is irrevocable and only one Swingline
Facility Advance may be requested in each Utilisation Request.


 


6.4          Swingline
Facility Lender’s Participation


 


(a)                                 Each Swingline Facility Lender will participate through its Facility
Office in each Swingline Facility Advance made pursuant to this Clause 6
in its respective Proportion immediately prior to the making of that Advance.


 


(b)                                The Agent shall promptly notify each Swingline Facility Lender of
the amount, currency and Euro Amount of each Swingline Facility Advance upon
receipt of a Utilisation Request.


 


6.5          Reduction
of Available Commitment


 


If a Swingline
Facility Lender’s Swingline Facility Commitment is reduced in accordance with
the terms hereof after the Agent has received the Utilisation Request for a
Swingline Facility Advance and such reduction was not taken into account in the
Available Swingline Facility, then both the Euro Amount of the relevant
Swingline Facility Advance and the amount of that Swingline Facility Advance
made or to be made shall be reduced accordingly.


 


6.6          Purchase
of Swingline Participations


 


(a)           On
any Business Day a Swingline Lender may, in its sole discretion, by written
notice given to the Agent (and to the other Swingline Facility Lenders) require
the Revolving Facility Lenders to acquire participations on such Business Day
in all or a portion of the Swingline Facility Outstandings.  Such notice shall specify the aggregate
amount of such Swingline Facility Outstandings in which the Revolving Facility
Lenders will participate.  Promptly upon
receipt of such notice, the Agent shall give notice thereof to each Revolving
Facility Lender, specifying in such notice each such Revolving Facility Lender’s
Proportion of such Swingline Facility 


 


71

















 


Outstandings.  Each Revolving Facility Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided
above, to pay to the Agent for the account of the applicable Swingline Facility
Lenders, such Revolving Facility Lender’s Proportion of such Swingline Facility
Outstandings.


 


(b)           Each
Revolving Facility Lender acknowledges and agrees that its respective
obligation to acquire participations in Swingline Facility Outstandings
pursuant to this Clause 6.6 is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of any Default or Event of Default or reduction or termination of
the Commitments and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. 
Each Revolving Facility Lender shall comply with its obligations under
this Clause 6.6 by wire transfer of immediately available funds in the
same manner as provided in Clause 35 (Payments)
and the Agent shall promptly pay to the applicable Swingline Facility Lender
the amount so received by it from each such Revolving Facility Lender.


 


(c)           The
Agent shall promptly notify the applicable 
Borrower of any participations in any Swingline Facility Outstandings
acquired pursuant to this Clause 6.6 and thereafter payments in respect of
such Swingline Facility Outstandings shall be made to the Agent and not to the
applicable Swingline Facility Lender. 
Any amounts received by a Swingline Facility Lender from the applicable
Borrower (or other party on behalf of such Borrower) in respect of any
Swingline Facility Outstandings after receipt by such Swingline Facility Lender
of the proceeds of a sale of participations therein shall be promptly remitted
to the Agent; any such amounts received by the Agent shall be promptly remitted
by the Agent to the Revolving Facility Lenders that shall have made their
payments pursuant to this Clause 6.6 and to such Swingline Facility
Lender, as their interests may appear; provided that any such payment so
remitted shall be repaid to such Swingline Facility Lender or to the Agent, as
applicable, if and to the extent such payment is required to be refunded to the
applicable Borrower.  The purchase of
participations in Swingline Facility Outstandings pursuant to this
Clause 6.6 shall not relieve the applicable Borrower of any Default in the
payment thereof.


 


6.7          Consequences
of a Swingline Facility Advance not being repaid


 


(a)           If
a Swingline Facility Advance is not repaid on its due date, each Revolving
Facility Lender must pay to the Agent for the account of the Swingline Facility
Lenders an amount calculated as described below within three Business Days of
demand by the Agent.


 


(b)           The
amount (if any) required to be paid by a Revolving Facility Lender is the
proportion of the Swingline Facility Advance not repaid which the Revolving
Facility Commitment of that Revolving Facility Lender bears to the aggregate
amount of the Revolving Facility Commitments less the amount of its
participation, before any adjustment under this Clause 6.7, in the unpaid
amount of the Swingline Facility Advance together with any interest accrued and
unpaid on that amount from the date on which such Swingline Facility Advance
was made to the date of payment by that Revolving Facility Lender.  If this produces a negative figure for a
Revolving Facility Lender, no amount need be paid by that Revolving Facility
Lender.


 


72

















 


(c)                                 On a payment under this Clause 6.7, the paying Revolving
Facility Lender will be subrogated to the rights of the Swingline Facility
Lenders which have shared in the payment received.


 


(d)           If
and to the extent the paying Revolving Facility Lender is not able to rely on
its rights under paragraph (c) above, the applicable Borrower shall
be liable to the paying Revolving Facility Lender for a debt equal to the
amount the paying Revolving Facility Lender has paid under this Clause 6.7
and that Borrower’s liability to the Swingline Facility Lenders will be reduced
accordingly.


 


(e)           Any
payment under this Clause 6.7 does not reduce the obligations in aggregate
of the applicable Borrower.


 


7.             UNCOMMITTED INCREMENTAL FACILITIES


 


7.1          Incremental
Term Facility


 


(a)           Incremental Term Facility Commitments


 


(i)            Each
Borrower shall have the right, in consultation and coordination with the Agent
as to all of the matters set forth below in this Clause 7.1, but without
requiring the consent of any of the Lenders, to request at any time and from
time to time after the Syndication Date and prior to the relevant Termination
Date for the respective Tranche of Incremental Term Facility Advances that one
or more Lenders or one or more Eligible Institutions provide to such Borrower
Incremental Term Facility Commitments under such Tranche of Incremental Term
Facility as designated in the respective Incremental Term Facility Commitment
Agreement and, subject to the terms and conditions contained in this Agreement
and in the respective Incremental Term Facility Commitment Agreement, make
Incremental Term Facility Advances pursuant thereto, so long as:


 


(A)          no
Default or Event of Default then exists or would result therefrom and all of
the Repeating Representations contained herein and in the other Finance
Documents are true and correct in all material respects at such time (unless
stated to relate to a specific earlier date, in which case such representations
and warranties shall be true and correct in all material respects as of such
earlier date);


 


(B)                              the
Existing Borrower and its Subsidiaries will be in compliance with
Clause 24 (Financial Condition)
on a Pro Forma Basis after giving effect to each incurrence of Incremental Term
Facility Advances and the application of the proceeds therefrom; and


 


(C)                              on or
before the date of each Incremental Term Facility Commitment Agreement, the
Existing Borrower shall have delivered to the Agent a certificate of the
Authorised Representative of the Existing Borrower certifying (A) which
provisions (if any) of the Permitted Subordinated Indebtedness Documents the
respective incurrence of Incremental Term Facility Advances will be allowed
under and demonstrating in reasonable detail that the full amount of such
Incremental Term 


 


73

















 


Facility Advances may be incurred in accordance with,
and will not violate the provisions of, the Permitted Subordinated Indebtedness
Document, (B) the ratio of Senior Indebtedness to Consolidated EBITDA is
less than 3.00:1.00 (based on the most recently delivered Compliance
Certificate in accordance with paragraph (d) (Officer’s Certificates) of
Clause 23.1 (Information Covenants))
and (C) the purpose of the use of the proceeds of such Tranche of
Incremental Term Facility.


 


(ii)           Furthermore, it is understood and agreed that:


 


(A)          no
Lender shall be obligated to provide an Incremental Term Facility Commitment,
and until such time, if any, as such Lender has agreed in its sole discretion
to provide an Incremental Term Facility Commitment and executed and delivered
to that Borrower and the Agent an Incremental Term Facility Commitment Agreement
as provided in paragraph (b) (Incremental
Term Facility Commitment Agreement) of this Clause 7.1, such
Lender shall not be obligated to fund any Incremental Term Facility Advances;


 


(B)          any
Lender (including Eligible Institutions) may so provide an Incremental Term
Facility Commitment without the consent of the Agent or any other Lender;


 


(C)          each
Tranche of Incremental Term Facility Commitments shall be made available to the
Borrowers;


 


(D)          the
amount of each Tranche of Incremental Term Facility Commitments shall be in a
minimum aggregate amount for all Lenders which provide an Incremental Term
Facility Commitment under such Tranche of Incremental Term Facility Advances of
at least $50,000,000 (or the Euro Amount thereof as determined at the time that
Incremental Term Facility Commitments are obtained);


 


(E)           the
aggregate amount of all Incremental Term Facility Commitments permitted to be
provided pursuant to this Clause 7.1 shall not exceed $500,000,000
(excluding all amounts borrowed prior to the Fifth Amendment and Restatement
Effective Date (or the Euro Amount thereof as determined at the time that such
Incremental Term Facility Commitments are obtained) (it being understood and
agreed, however, to the extent that any such
Incremental Term Facility Commitments are obtained but later expire, terminate
or are voluntarily reduced in each case without being utilised, the amount of
such Incremental Term Facility Commitments so expired, terminated or
voluntarily reduced may again be available to be obtained under this
Clause 7.1 within the limits set forth herein);


 


(F)           the
up-front fees and, if applicable, any unutilised commitment fees and/or other
fees, payable in respect of each Incremental Term Facility Commitment shall be
separately agreed to by each relevant Borrower and each Incremental Term
Facility Lender;


 


74

















 


(G)          each
Tranche of the Incremental Term Facility shall have (i) a Final Maturity
Date of no earlier than the Final Maturity Date of the D Facilities and (ii) a
Weighted Average Life to Maturity of no less than the Weighted Average Life to
Maturity as then remaining for the D Facilities;


 


(H)          any
Incremental Term Facility Advance being incurred under any single Incremental
Term Facility Commitment Agreement shall be used for Permitted Acquisitions
and/or the redemption or repurchase of the Senior Subordinated Notes or New
Senior Subordinated Notes (including, without limitation, any related
redemption or repurchase fees).  The date
of the consummation of a Permitted Acquisition (as well as the date on which
any Indebtedness assumed as part of such Permitted Acquisition is to be
refinanced) or, as the case may be, the date of the redemption of the Senior
Subordinated Notes or New Senior Subordinated Notes being prepaid with the
proceeds of such Incremental Term Facility Advance, shall occur no later than
10 Business Days after the date of the incurrence of such Incremental Term
Facility Advance;


 


(I)            each
Incremental Term Facility Commitment Agreement shall specifically designate,
with the approval of the Agent, that the Tranche of the Incremental Term
Facility Commitments being provided thereunder shall be a new Tranche which
shall exist separately from any existing Tranche of the Incremental Term Facility,
Incremental Term Facility Commitments or other Term Facility Advance, unless
the requirements of paragraph (c) (Constitution
of each Tranche of Incremental Term Facility) of this
Clause 7.1 are satisfied in which case such Tranche shall be added on to
an existing Tranche of the Incremental Term Facility (or Incremental Term
Facility Commitments) or another D Facility Advance in accordance with
paragraph (c) (Constitution of
each Tranche of Incremental Term Facility) of this Clause 7.1;


 


(J)           all
Incremental Term Facility Advances (and all interest, fees and other amounts
payable thereon) shall be obligations under this Agreement and the other
applicable Finance Documents and shall be secured by the Security Documents, on
a pari passu basis with all other
Term Facility Outstandings; and


 


(K)          each
Lender agreeing to provide an Incremental Term Facility Commitment pursuant to
an Incremental Term Facility Commitment Agreement shall, subject to the
satisfaction of the relevant conditions set forth in this Agreement, make
Incremental Term Facility Advances under the Tranche specified in such
Incremental Term Facility Commitment Agreement as provided in Clause  4.2
(Conditions to Utilisation of Incremental
Term Facility) and such Advances shall thereafter be deemed to be
Incremental Term Facility Advances under such Tranche for all purposes of this
Agreement and the other applicable Finance Documents.


 


75

















 


(b)           Incremental Term Facility Commitment Agreement


 


At the time of the provision of Incremental Term
Facility Commitments pursuant to this Clause 7, the relevant Borrowers,
each other Obligor, the Agent and each such Lender or other Eligible
Institution which agrees to provide an Incremental Term Facility Commitment
(each, an “Incremental Term Facility Lender”)
shall execute and deliver to the relevant Borrower(s) and the Agent an
Incremental Term Facility Commitment Agreement, appropriately completed (with
the effectiveness of the Incremental Term Facility Commitment provided therein
to occur on the date set forth in such Incremental Term Facility Commitment
Agreement, which date in any event shall be no earlier than the date on which
all fees required to be paid in connection therewith at the time of such
effectiveness shall have been paid, all conditions set forth in this
Clause 7 shall have been satisfied and all other conditions precedent that
may be set forth in such Incremental Term Facility Commitment Agreement shall
have been satisfied).  In addition on or
prior to the effective date of the respective Incremental Term Facility
Commitment Agreement:


 


(i)            the
Parent, the Borrowers and their Subsidiaries shall have delivered such
technical amendments, modifications and/or supplements to the respective
Security Documents as are reasonably requested by the Agent to ensure that the
additional Facilities Obligations to be incurred pursuant to the Incremental
Term Facility Commitments are secured by, and entitled to the benefits of, the
Security Documents (to the extent required by the terms of this Agreement), and
each of the Lenders hereby agrees to, and authorises the Security Trustee to
enter into, any such technical amendments, modifications and/or supplements;


 


(ii)           the
Agent shall have received an opinion or opinions, in form and substance
reasonably satisfactory to the Agent, from counsel reasonably satisfactory to
the Agent and dated such date, covering such of the matters set forth in the
opinions of counsel delivered to the Agent on the Initial Borrowing Date
pursuant to Clause 3.1 (Conditions
Precedent) as may be reasonably requested by the Agent, and such
other matters incident to the transactions contemplated thereby as the Agent
may reasonably request;


 


(iii)         the
relevant Borrower(s) and the other Obligors shall have delivered to the
Agent such other officers’ certificates, resolutions and evidence of good
standing as the Agent shall reasonably request; and


 


(iv)          in
addition to the applicable conditions precedent set forth in Part I of
Schedule 3 (Conditions Precedent to
First Utilisation), the Agent shall have received from the
Authorised Representative of each relevant Borrower a certificate certifying
that the conditions set forth in paragraphs (a)(i)(A), (B) and (C) of
Clause 7.1 (Incremental Term Facility)
have been satisfied (together with calculations demonstrating same (where
applicable) in reasonable detail and copies of the certificate set forth in
such paragraph (a)(i)(C)) of Clause 7.1 (Incremental Term Facility).


 


The Agent shall promptly notify each Lender as to the
effectiveness of each Incremental Term Facility Commitment Agreement and, at
such time, Part I of


 


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Schedule 1 (Lenders and Commitments)
shall be deemed modified to reflect the Incremental Term Facility Commitments
of such Incremental Term Facility Lenders.


 


(c)                                  Constitution of each Tranche of Incremental Term Facility


 


Notwithstanding
anything to the contrary contained above in this Clause 7.1, the
Incremental Term Facility Commitments provided by an Incremental Term Facility
Lender or Incremental Term Facility Lenders, as the case may be, pursuant to
each Incremental Term Facility Commitment Agreement shall constitute a new
Tranche, which shall be separate and distinct from the existing Tranches
pursuant to this Agreement provided that, with the consent of the Agent, the
parties to a given Incremental Term Facility Commitment Agreement may specify
therein that the respective Incremental Term Facility Advance made pursuant
thereto shall constitute part of, and be added to, an existing Tranche of
Incremental Term Facility Advances or to the D1 Facility Advances or D2
Facility Advances, in either case so long as the following requirements are
satisfied:


 


(i)                                   the Incremental Term Facility Advances to be made pursuant to such
Incremental Term Facility Commitment Agreement shall be made to the same
Borrowers, shall be denominated in the same currency, shall have the same Final
Maturity Date and shall have the same Applicable Margins as the Facility to
which the new Incremental Term Facility Advances are being added;


 


(ii)                               the new Incremental Term Facility Advances shall have the same
scheduled repayment dates as then remain with respect to the Tranche to which
such new Incremental Term Facility Advances are being added (with the amount of
each repayment applicable to such new Incremental Term Facility Advances to be
the same (on a proportionate basis) as is theretofore applicable to the Tranche
to which such new Incremental Term Facility Advances are being added, thereby
increasing the amount of each then remaining repayment of the respective
Tranche proportionately); and


 


(iii)                           on the date of the making of such new Incremental Term Facility
Advances, and notwithstanding anything to the contrary set forth in
Clause 15 (Interest on Term Facility
Advances), such new Incremental Term Facility Advance shall be added
to (and form part of) the Term Facility Outstandings of the respective Tranche
on a pro rata basis (based on the relative
sizes of the various Term Facility Outstandings), so that each Lender will
participate proportionately in each then Term Facility Outstandings of the
respective Tranche, and so that the existing Lenders with respect to such
Tranche continue to have the same participation (by amount) in each borrowing
as they had before the making of the new Incremental Term Facility Advances of
such Tranche.


 


7.2                                Incremental Revolving Facility


 


(a)                                  Incremental Revolving Facility Commitments


 


(i)                                   Each Borrower shall have the right, in consultation and coordination
with the Agent as to all of the matters set forth below in this
Clause 7.2, but without requiring the consent of any of the Lenders, to
request at any time and from 


 


77

















 


time to time
after the Syndication Date and prior to the Termination Date for the
Incremental Revolving Facility that one or more Lenders or one or more Eligible
Institutions provide to the Borrowers Incremental Revolving Facility
Commitments under the Incremental Revolving Facility as designated in the
respective Incremental Revolving Facility Commitment Agreement and, subject to
the terms and conditions contained in this Agreement and in the respective
Incremental Revolving Facility Commitment Agreement, make Utilisations pursuant
thereto, so long as no Default or Event of Default then exists or would result
therefrom and all of the Repeating Representations contained herein and in the
other Finance Documents are true and correct in all material respects at such
time (unless stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date).


 


(ii)                                Furthermore, it is understood and agreed that:


 


(A)                              no
Lender shall be obligated to provide an Incremental Revolving Facility
Commitment, and until such time, if any, as such Lender has agreed in its sole
discretion to provide an Incremental Revolving Facility Commitment and executed
and delivered to the relevant Borrowers and the Agent an Incremental Revolving
Facility Commitment Agreement as provided in paragraph (b) (Incremental Revolving Facility Commitment Agreement)
of this Clause 7.2, such Lender shall not be obligated to provide any
Incremental Revolving Facility;


 


(B)                              any
Lender (including Eligible Institutions) may so provide an Incremental
Revolving Facility Commitment without the consent of the Agent or any other
Lender;


 


(C)                              each
of the Incremental Revolving Facility Commitments shall be made available to
the relevant Borrowers;


 


(D)                              each
provision of Incremental Revolving Facility Commitments shall be in a minimum
aggregate amount for all Lenders of €10,000,000 and in integral multiples of
€5,000,000;


 


(E)                                the
aggregate amount of all Incremental Revolving Facility Commitments permitted to
be provided pursuant to this Clause 7.2 shall not exceed €65,000,000;


 


(F)                                the
up-front fees and, if applicable, any unutilised commitment fees and/or other
fees, payable in respect of each Incremental Revolving Facility Commitment
shall be separately agreed to by each relevant Borrower and each Incremental
Revolving Facility Lender; and


 


(G)                              all
Utilisations under the Incremental Revolving Facility Commitments (and all
interest, fees and other amounts payable thereon) shall be Facilities
Obligations under this Agreement and the other applicable Finance Documents and
shall be secured by the Security Documents, on a pari passu basis with all other Revolving Facility
Outstandings.


 


78

















 


(b)                                 Incremental Revolving Facility Commitment Agreement


 


At the time of the provision of Incremental Revolving
Facility Commitments pursuant to this Clause 7, the relevant Borrowers,
each other Obligor, the Agent and each such Lender or other Eligible
Institution which agrees to provide an Incremental Revolving Facility
Commitment (each, an “Incremental Revolving
Facility Lender”) shall execute and deliver to the relevant
Borrowers and the Agent an Incremental Revolving Facility Commitment Agreement,
appropriately completed (with the effectiveness of the Incremental Revolving
Facility Commitment provided therein to occur on the date set forth in such
Incremental Revolving Facility Commitment Agreement, which date in any event
shall be no earlier than the date on which all fees required to be paid in
connection therewith at the time of such effectiveness shall have been paid,
all conditions set forth in this Clause 7.2 shall have been satisfied and
all other conditions precedent that may be set forth in such Incremental
Revolving Facility Commitment Agreement shall have been satisfied).  The Agent shall promptly notify each Lender
as to the effectiveness of each Incremental Revolving Facility Commitment
Agreement and at such time, (i) the Revolving Facility shall be increased
by the aggregate amount of such Incremental Revolving Facility Commitments, (ii) Section A
of Part I of Schedule 1 (Lenders and
Commitments) shall be deemed modified to reflect the revised
Revolving Facility Lenders.  In addition
on or prior to the effective date of the respective Incremental Revolving
Facility Commitment Agreement:


 


(i)                                   the Parent, the Borrowers and their Subsidiaries shall have
delivered such technical amendments, modifications and/or supplements to the
respective Security Documents as are reasonably requested by the Agent to
ensure that the additional Facilities Obligations to be incurred pursuant to
the Incremental Revolving Facility Commitments are secured by, and entitled to
the benefits of, the Security Documents (to the extent required by the terms of
this Agreement), and each of the Lenders hereby agrees to, and authorises the
Security Trustee to enter into, any such technical amendments, modifications
and/or supplements;


 


(ii)                               the Agent shall have received an opinion or opinions, in form and
substance reasonably satisfactory to the Agent, from counsel reasonably
satisfactory to the Agent and dated such date, covering such of the matters set
forth in the opinions of counsel delivered to the Agent on the Initial
Borrowing Date pursuant to Clause 3.1 (Conditions
Precedent) as may be reasonably requested by the Agent, and such
other matters incident to the transactions contemplated thereby as the Agent
may reasonably request;


 


(iii)                           each relevant Borrower and the other Obligors shall have delivered
to the Agent such other officers’ certificates, resolutions and evidence of
good standing as the Agent shall reasonably request; and


 


(iv)                              in addition to the applicable conditions precedent set forth in Part I
of Schedule 3 (Conditions Precedent to
First Utilisation), the Agent shall have received from the
Authorised Representative of the Existing Borrower a certificate certifying
that the conditions set forth in paragraphs (a)(i) (Incremental Revolving Facility Commitments)
of this Clause 7.2 have been satisfied.


 


79

















 


(c)                                 Constitution of Incremental Revolving Facility


 


At the time of any provision
of Incremental Revolving Facility Commitments pursuant to this Clause 7.2,
the relevant Borrowers shall, in coordination with the Agent, repay outstanding
Revolving Facility Advances of certain of the Revolving Facility Lenders, and
incur additional Revolving Facility Advances from certain other Revolving
Facility Lenders (including the Incremental Revolving Facility Lenders), in
each case to the extent necessary so that all of the Revolving Facility Lenders
participate in each Utilisation under the Revolving Facility pro rata on the basis of their respective Revolving Facility
Commitments (after giving effect to any increase in the Revolving Facility
pursuant to this Clause 7.2 and with such Borrowers being obligated to pay
to the respective Revolving Facility Lenders any costs of the type referred to
in Clause 33 (Borrower’s Indemnities)
in connection with any such repayment and/or Utilisation.


 


8.                                   OPTIONAL CURRENCIES


 


8.1                              Selection of Currency


 


A Borrower (or the
Parent on its behalf) shall select the currency of an Advance made to it (which
shall be euro or an Optional Currency) in the Utilisation Request relating to
the relevant Advance provided that an A Facility Advance shall be made in euro,
a D1 Facility Advance shall be made in dollars and a D2 Facility Advance shall
be made in euro.


 


8.2                              No Change of Currency


 


Once utilised, no
Term Facility Advance shall be outstanding in any currency other than the
currency in which it was first utilised.


 


9.                                     REPAYMENT OF REVOLVING AND SWINGLINE
FACILITY OUTSTANDINGS


 


9.1                              Repayment of Revolving Facility Advances


 


Each Borrower shall
(subject to Clause 9.2 (Rollover Advances))
repay the full amount of each Revolving Facility Advance and Swingline Facility
Advance made to it on the Repayment Date, provided that if such Repayment Date
is not a Business Day in the relevant jurisdiction for payment, payment shall
instead be made on the next succeeding Business Day.


 


9.2                              Rollover Advances


 


Without prejudice
to a Borrower’s obligation to repay the full amount of each Revolving Facility
Advance on the applicable Repayment Date, where, on the same day on which
that Borrower is due to repay a Revolving Facility Advance (a “Maturing Advance”) that Borrower has also
requested that a Revolving Facility Advance in the same currency as the
Maturing Advance be made to it (a “Rollover
Advance”), subject to the Lenders being obliged to make such
Rollover Advance under Clause 4.1 (Conditions to Utilisation),
the amount to be so repaid and the amount to be so drawn down shall be netted
off against each other so that the amount which that Borrower is actually
required to repay or, as the case may be, the amount which the Lenders are
actually required to advance to that Borrower, shall be the net amount remaining
after such netting off provided that such Borrower shall not be 


 


80

















 


permitted to
rollover any Advances denominated in an Optional Currency to the extent that
such Advance, when notionally converted into euros at the Agent’s Spot Rate of
Exchange on the Quotation Date for the next Term and aggregated with the Euro
Amount of all other Revolving Facility Outstandings would result in the
aggregate amount of all Revolving Commitments being exceeded by an amount greater
than 5 per cent.


 


9.3                              Cash Collateralisation of Documentary Credits


 


In relation to any
unexpired Documentary Credit, a Borrower may give the Agent not less than 3
Business Days’ prior written notice of its intention to repay a Documentary
Credit issued to it, and, having given such notice, shall procure that the
relevant Outstanding L/C Amount in respect of such Documentary Credit is
reduced to zero and repaid in full by providing cash cover therefor (in
accordance with Clause 5 (Documentary Credits))
or by reducing the Outstanding L/C Amount of such Documentary Credit or by
cancelling such Documentary Credit and returning the original to the L/C Bank
or the Agent on behalf of the Lenders.


 


10.                              REPAYMENT OF TERM FACILITY OUTSTANDINGS


 


10.1                       Repayment of A Facility Outstandings


 


The Existing
Borrower shall make such repayments as may be necessary to ensure that on each
of the dates set out in the table below (each an “A Facility Repayment Date”) the aggregate Euro Amount of the A
Facility Outstandings (as at the close of business in London on the Termination
Date relating to the A Facility) is reduced by an amount equal to the
percentage of such A Facility Outstandings set out in the table below provided
that the final Repayment Date shall be the Final Maturity Date for the A
Facility and the aggregate amount of all A Facility Outstandings shall be
repayable on such A Facility Repayment Date.


 


	
  Repayment Dates

  	
   

  	
  Percentage of A Facility Outstandings

  Repayable

  
	
   

  	
   

  	
   

  
	
  31
  March 2004

  	
   

  	
  1.625 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30 June 2004

  	
   

  	
  1.625 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30
  September 2004

  	
   

  	
  1.625 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  December 2004

  	
   

  	
  1.625 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  March 2005

  	
   

  	
  3.375 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30 June 2005

  	
   

  	
  3.375 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30
  September 2005

  	
   

  	
  3.375 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  December 2005

  	
   

  	
  3.375 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  March 2006

  	
   

  	
  3.375 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30 June 2006

  	
   

  	
  3.375 per
  cent.

  



 


81

















 


	
  Repayment Dates

  	
   

  	
  Percentage of A Facility Outstandings

  Repayable

  
	
   

  	
   

  	
   

  
	
  30
  September 2006

  	
   

  	
  3.375 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  December 2006

  	
   

  	
  3.375 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  March 2007

  	
   

  	
  5.5 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30 June 2007

  	
   

  	
  5.5 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30
  September 2007

  	
   

  	
  5.5 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  December 2007

  	
   

  	
  5.5 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  March 2008

  	
   

  	
  5.5 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30 June 2008

  	
   

  	
  5.5 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30
  September 2008

  	
   

  	
  5.5 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  December 2008

  	
   

  	
  5.5 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  March 2009

  	
   

  	
  5.625 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30 June 2009

  	
   

  	
  5.625 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30
  September 2009

  	
   

  	
  5.625 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  December 2009

  	
   

  	
  5.625 per
  cent.

  



 


Provided that in
the event the Senior Subordinated Notes are not Refinanced on or before 1 November 2008,
the Final Maturity Date with respect to the A Facility shall be 1 May 2009
and on and from 1 November 2008 the A Facility Repayment Dates and
the percentage of the A Facility Outstandings payable on such dates shall be as
follows:


 


	
  Repayment Dates

  	
   

  	
  Percentage of A Facility Outstandings

  
	
   

  	
   

  	
   

  
	
  31 December 2008

  	
   

  	
  9.00 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31 March 2009

  	
   

  	
  9.00 per
  cent.

  
	
   

  	
   

  	
   

  
	
  1 May 2009

  	
   

  	
  10 per cent.

  



 


10.2                       [Intentionally deleted]


 


10.3                       Repayment of D Facility Outstandings


 


The Existing
Borrower shall make such repayments as may be necessary to ensure that on each
of the dates set out in the table below (each a “D Facilities Repayment Date”) the aggregate Euro Amounts of
the D1 Facility Outstandings and the D2 Facility Outstandings are each reduced
by an amount equal to the percentage set out in the table below of the amounts
which constituted D1 Facility Outstandings and D2 Facility Outstandings (or
their 


 


82

















 


equivalent under
Facilities that were converted into the D1 Facility and the D2 Facility on the
Fifth Amendment and Restatement Date) (as applicable) on 29 September 2004,
provided that the final Repayment Date shall be the Final Maturity Date for the
D Facilities and the aggregate amount of all D Facility Outstandings shall
be repayable on such D Facilities Repayment Date.


 


	
  Repayment Dates

  	
   

  	
  Percentage of D Facility Outstandings

  Repayable

  
	
   

  	
   

  	
   

  
	
  30
  September 2004

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  December 2004

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31 March 2005

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30 June 2005

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30
  September 2005

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  December 2005

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  March 2006

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30 June 2006

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30
  September 2006

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  December 2006

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  March 2007

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30 June 2007

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30
  September 2007

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  December 2007

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  March 2008

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30 June 2008

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30
  September 2008

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  December 2008

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  March 2009

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30 June 2009

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30
  September 2009

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  December 2009

  	
   

  	
  0.25 per
  cent.

  



 


83

















 


	
  Repayment Dates

  	
   

  	
  Percentage of D Facility Outstandings

  Repayable

  
	
   

  	
   

  	
   

  
	
  31
  March 2010

  	
   

  	
  23.50 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30 June 2010

  	
   

  	
  23.50 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30
  September 2010

  	
   

  	
  23.50 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  December 2010

  	
   

  	
  24.00 per
  cent.

  



 


Provided that, in the event
that the 12 1/4 per cent. Senior Subordinated Notes due 2009 are not Refinanced
on or before 1 November 2008, the Final Maturity Date with respect to the
D Facilities shall be 1 May 2009 and on and from 1 November 2008  the D Facilities Repayment Dates and the percentage of
the D1 Facility Outstandings and D2 Facility Outstandings payable on such dates
shall be as follows:


 


	
  Repayment Dates

  	
   

  	
  Percentage of D Facility Outstandings

  
	
   

  	
   

  	
   

  
	
  31
  December 2008

  	
   

  	
  0.25  per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  March 2009

  	
   

  	
  47.75 per
  cent.

  
	
   

  	
   

  	
   

  
	
  1 May 2009

  	
   

  	
  47.75 per
  cent.

  



 


10.4                       Repayment of the Anton Acquisition Funds


 


The relevant
Borrower(s) shall make such repayments as may be necessary to ensure that
on each of the dates set out in the table below (each an “Anton
Acquisition Funds Repayment Date”) the aggregate amount of the
Advance actually drawn down from the Anton Acquisition Funds is reduced by an
amount equal to the percentage set out in the table below provided that the
final Repayment Date shall be the Final Maturity Date for the D1 Facility and the
aggregate amount of the Anton Acquisition Funds shall be repayable on such
Anton Acquisition Funds Repayment Date.


 


	
  Repayment Dates

  	
   

  	
  Percentage of Anton Acquisition Funds

  
	
   

  	
   

  	
   

  
	
  31
  March 2007

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30 June 2007

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30 September 2007

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  December 2007

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  March 2008

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30 June 2008

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30
  September 2008

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  December 2008

  	
   

  	
  0.25 per
  cent.

  



 


84

















 


	
  Repayment Dates

  	
   

  	
  Percentage of Anton Acquisition Funds

  
	
   

  	
   

  	
   

  
	
  31
  March 2009

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30 June 2009

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  30
  September 2009

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  December 2009

  	
   

  	
  0.25 per
  cent.

  
	
   

  	
   

  	
   

  
	
  31
  December 2010

  	
   

  	
  97 per cent.

  



 


10.5                       Repayment of Incremental Term Facility Outstandings


 


The relevant
Borrower shall be required to make, with respect to each Tranche of Incremental
Term Facility Advances, to the extent then outstanding, scheduled amortisation
payments of such Tranche of Incremental Term Facility Advances on the dates
(the “Incremental Term Facility Repayment
Dates”) and in the principal amounts set forth in the respective
Incremental Term Facility Commitment Agreement (each such repayment, as the
same may be reduced as provided in Clauses 12 (Voluntary Prepayment) and 13 (Mandatory Prepayment), an “Incremental Term Facility Scheduled Repayment”).


 


10.6                       No Reborrowing of Term Facility Advances


 


No Borrower may
reborrow any part of any Term Facility which is repaid.


 


11.                              CANCELLATION


 


11.1                       Voluntary Cancellation


 


(a)                                 Subject to Clause 11.2 (Restriction), a
Borrower may, by giving to the Agent not less than 3 Business Days’ prior
written notice to that effect, cancel the whole or any part (being a minimum
amount of €1,000,000
and an integral multiple of €1,000,000) of any
Available Facility and any such cancellation shall permanently reduce the
relevant Available Commitments of the Lenders proportionately.


 


(b)                                 In the event of certain refusals by a Lender as provided in
Clause 45.7 (Replacement of
non-Instructing Group Lender) to consent to certain proposed
changes, waivers, discharges or terminations with respect to this Agreement
which have been approved by the Instructing Group, a Borrower may, subject to
the applicable requirements of Clause 45.7 (Replacement of non-Instructing Group Lender), upon five
Business Days’ written notice by that Borrower to the Agent (which notice the Agent
shall promptly transmit to each of the Lenders) terminate all or, as the case
may be, any Commitment, if any, of such Lender, so long as:


 


(i)                                   the Outstandings with respect to such Commitment being cancelled,
together with accrued and unpaid interest, fees and all other amounts, owing to
such Lender (excluding amounts owing in respect of Outstandings of any other
Facility maintained by such Lender which are not being repaid pursuant to
Clause 45.7 (Replacement of
non-Instructing Group Lender)) are repaid 


 


85





















 


concurrently
with the effectiveness of such termination (at which time Part I of
Schedule 1 (Lenders and Commitments)
shall be deemed modified to reflect such changed amounts); and


 


(ii)                               after giving effect to such termination (and other adjustments to
each Lender’s Proportion of the Revolving Facility Commitment and/or related
L/C Proportion of the remaining Lenders as contemplated below), none of the
Revolving Facility Outstandings of any remaining Lender shall exceed its
Revolving Facility Commitment.


 


(c)                                 After giving effect to the termination of the Commitments of any
Lender pursuant to the provisions of paragraph (b) above, unless the
respective Lender continues to have Term Facility Outstandings or other
Commitments (if any) hereunder, such Lender shall no longer constitute a “Lender”
for purposes of this Agreement, except with respect to indemnifications under
this Agreement (including, without limitation, Clauses 18 (Taxes), 19 (Increased Costs),
33 (Borrower’s Indemnities), 37 (Sharing Among the Finance Parties) and 40 (Costs and Expenses)), which shall survive as to such repaid
Lender.


 


(d)                                 Immediately after the Revolving Facility Commitment of any Lender is
terminated pursuant to paragraph (b) above, there shall occur
automatic consequential adjustments (as determined by the Agent) in each Lender’s
Proportion of Revolving Facility Commitments (and as a result thereof in the
related L/C Proportions) of the remaining Revolving Facility Lenders.


 


11.2                       Restriction


 


The Borrowers may
not give a notice of cancellation pursuant to Clause 11.1 (Voluntary Cancellation) in respect of any amount of the
Available Term Facilities required to refinance, in full, the Existing Credit
Agreement.


 


11.3                       Notice of Cancellation


 


Any notice of
cancellation given by any of the Borrowers pursuant to Clause 11.1 (Voluntary Cancellation) shall be irrevocable and shall
specify the date upon which such cancellation is to be made and the amount of
such cancellation.


 


11.4                       Cancellation of Available Commitments


 


On each Termination
Date any Available Commitments in respect of the Facility to which such
Termination Date relates shall automatically be cancelled and the Commitment of
each Lender in relation to such Facility shall automatically be reduced to
zero.


 


12.                              VOLUNTARY PREPAYMENT


 


12.1                       Voluntary Prepayment


 


(a)                                 Each Borrower shall, if it (or the Parent on its behalf) has given
to the Agent not less than 3 Business Days’ prior written notice to that
effect, repay an Advance in whole or in part (but if in part, in an amount that
reduces the Euro Amount of the relevant Advance by a minimum amount of
€1,000,000 and an integral multiple of 


 


86

















 


€1,000,000) together with accrued interest on the amount repaid without
premium or penalty but subject to the payment of any Break Costs.


 


(b)                                 In the event of certain refusals by a Lender as provided in
Clause 45.7 (Replacement of
non-Instructing Group Lender) to consent to certain proposed
changes, waivers, discharges or terminations with respect to this Agreement
which have been approved by the Instructing Group, the relevant Borrower may,
upon five Business Days’ written notice by an Authorised Representative of that
Borrower to the Agent (which notice the Agent shall promptly transmit to each
of the Lenders) repay all Outstandings, together with accrued and unpaid
interest, fees, and other amounts owing to such Lender (or owing to such Lender
with respect to each Facility which gave rise to the need to obtain such Lender’s
individual consent) in accordance with, and subject to the requirements of,
Clause 45.7 (Replacement of
non-Instructing Group Lender) so long as:


 


(i)                                   in the case of the repayment of Revolving Facility Outstandings of
any Lender pursuant to this paragraph (b), the Revolving Facility
Commitment of such Lender (if any), is terminated concurrently with such
repayment (at which time Part I of Schedule 1 (Lenders and Commitments) shall be deemed
modified to reflect the changed Revolving Facility Commitments); and


 


(ii)                               in the case of the repayment of any Term Facility Outstandings of
any Lender pursuant to this paragraph (b), the Term Facility Commitment of
such Lender (if any) is terminated concurrently with such repayment (at which
time Part I of Schedule 1 (Lenders
and Commitments) shall be deemed modified to reflect the changed
Term Facility Commitments).


 


12.2                       Right of Prepayment and Cancellation in relation to a single Lender


 


If any Lender is
owed any amounts as set out in paragraph (b) of Clause 21.1 (Replacement of Lenders), the Borrowers
shall have the rights as set out in Clause 21.1 (Replacement of Lenders).


 


12.3                       Application of Voluntary Prepayments


 


(a)                                 Order of Application:  Any repayment made pursuant to
paragraph (a) of Clause 12.1 (Voluntary
Prepayment) in respect of a Term Facility Advance shall, subject to
the provisions of paragraph (b) (Waivable
Voluntary Repayment) of this Clause 12.3, be applied either:


 


(i)                                   to the prepayment of A Facility Advances, D1 Facility Advances,
D2 Facility Advances and any Incremental Term Facility Advances pro rata
to the respective Term Facility Outstandings; in relation to each Facility such
prepayment shall be applied against all remaining Scheduled Repayments of such
Facility pro rata to the respective amounts of such Scheduled Repayments; or


 


(ii)                               if the Borrowers so elect, in the following order:


 


(A)                              first
to the prepayment, in direct order of maturity, of Scheduled Repayments of Term
Facilities which will be due within 15 months 


 


87

















 


after the date of the
respective voluntary prepayment, applied in respect of each Scheduled Repayment
Date to repay in full all Scheduled Repayments of all Term Facilities due on
such Scheduled Repayment Date or, if the prepayment is insufficient to make
such repayment in full in respect of a Scheduled Repayment Date, to the
Scheduled Repayments for each Facility due on such Scheduled Prepayment Date pro rata to the relative amounts of such Scheduled
Repayments; and


 


(B)                              second,
to the prepayment of A Facility Advances, D1 Facility Advances, D2
Facility Advances and any Incremental Term Facility Advances pro rata to the
relevant Term Facility Outstandings (as reduced by the prepayments referred to
in paragraph (A) above); in relation to each Facility such prepayment
shall be applied against all remaining Scheduled Repayments of such Facility
pro rata to the respective amounts of such Scheduled Repayments.


 


(b)                                Waivable Voluntary Repayment:  In relation to any
repayment made pursuant to Clause 12.1 (Voluntary
Prepayment) in respect of a Term Facility Advance and without
prejudice to paragraph (a) above, which is required to be applied to
D Facility Advances, if on or prior to the date of the respective
voluntary repayment pursuant to this Clause 12, the Existing Borrower has
given the Agent written notification that it has elected to give each Lender
with D Facility Outstandings the right to waive such Lender’s rights to receive
such repayment (the “Waivable
Voluntary Repayment”) the Agent shall notify such
Lenders of such receipt and the amount of the repayments to be applied to each
such Lender’s Proportion of D Facility Outstandings, provided
that in no event shall the aggregate amount of any Waivable Voluntary Repayment
exceed the aggregate principal amount of Term Facility Outstandings (excluding
D Facility Outstandings) after giving effect to any applications of
payments (other than any reallocation of the respective Waivable Voluntary
Repayment pursuant to this sub-paragraph (b)) to such other Term Facility
Outstandings as a result of the repayments then being made pursuant to this
Clause 12.


 


Waive Mechanics:  In the event any Lender with D Facility
Outstandings desires to waive its right to receive any such Waivable Voluntary
Repayment in whole or in part, such Lender shall so advise the Agent no later
than 5:00 p.m. five Business Days after the date of such notice from the
Agent which notice shall also include the amount the Lender desires to receive
with respect to its D Facility Outstandings. 
If the Lender does not reply to the Agent within such five Business Day
period, it will be deemed acceptance of the total payment.  If the Lender does not specify an amount it
wishes to receive, it will be deemed acceptance of 100 per cent. of the
total payment.  In the event that any
such Lender waives its rights to any such Waivable Voluntary Repayment, the
Agent shall apply 100 per cent. of the amount so waived by such Lenders
to:


 


(x)                                 repay
the Term Facility Outstandings (excluding the D Facility Outstandings) in
accordance with sub-paragraph (a) above; and


 


(y)                                 to the
extent in excess of the amount to be applied pursuant to preceding clause (x),
to reduce the Available Revolving Facility on a pro rata
basis based on the relative amounts of the Available Revolving Facility and the



 


88

















 


Revolving Facility
Outstandings (in each case as in effect before giving effect to such
reduction).


 


Cash Collateral:  If the Existing Borrower elects to give the
notice described above in this sub-paragraph (b) with respect to any
voluntary repayment, the amount of the respective Waivable Voluntary Repayment
shall be deposited with the Agent on the date the voluntary repayment is
otherwise made pursuant to sub-paragraph (a) above (and held by the
Agent as cash collateral for the D Facility Outstandings and, but only to the
extent Lenders with D Facility Outstandings waive their right to receive their
share of the Waivable Voluntary Repayment, for the benefit of all Lenders in a
cash collateral account which shall permit the investment thereof in Cash
Equivalents reasonably satisfactory to the Agent until the proceeds are applied
to the applicable Outstandings) and the respective repayment shall not be
required to be made until the seventh Business Day occurring after the date the
respective repayment would otherwise have been required to be made.


 


Partial Waiver of Repayment:  Notwithstanding anything to the contrary
contained above, if one or more Lenders holding D Facility Outstandings waives
its right to receive all or any part of any Waivable Voluntary Repayment, but
less than all the Lenders holding the respective D Facility Outstandings waive
in full their right to receive 100 per cent. of the total payment
otherwise required with respect to the respective D Facility Outstandings, then
of the amount actually applied to the repayment of the respective D Facility
Outstandings of Lenders which have waived in part, but not in full, their right
to receive 100 per cent. of such repayment, such amount shall be applied
to each D Facility Advance of the respective D Facility Outstandings on a pro rata basis (so that each Lender holding D Facility
Outstandings shall, after giving effect to the application of the respective
repayment, maintain the same percentage (as determined for such Lender, but not
the same percentage as the other Lenders hold and not the same percentage held
by such Lender prior to repayment) of each D Facility Advance which remains
outstanding after giving effect to such application).  For the avoidance of doubt any amount to be
applied in accordance with this paragraph shall only apply to such portion (if
any) of the D Facility Outstandings which such D Facility Lender has not
waived.


 


12.4                       Release from Obligation to make Advances


 


A Lender for whose
account a repayment is to be made under Clause 12.2 (Right of
Prepayment and Cancellation in relation to a single Lender) shall
not be obliged to participate in the making of Advances (including Revolving
Facility Advances) or in the issue or counter-guarantee in respect of
Documentary Credits on or after the date upon which the Agent receives the
relevant notice of intention to repay such Lender’s share of the Outstandings,
on which date all of such Lender’s Available Commitments shall be cancelled and
all of its Commitments shall be reduced to zero.


 


12.5                       Notice of Repayment


 


Any notice of
repayment given by the Borrowers or the Parent, as the case may be, pursuant to
Clauses 12.1 (Voluntary Prepayment)
or 12.2 (Right of Prepayment and Cancellation in relation to
a single Lender) shall be irrevocable, shall specify the date upon
which such repayment is to be made and the amount of such repayment and shall
oblige that Borrower to make such repayment on such date.


 


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12.6                       Restrictions on Repayment


 


No Obligor shall
repay all or any part of any Advance (including, at any time, a Revolving
Facility Advance) except at the times and in the manner expressly provided for
in this Agreement.


 


12.7                       Cancellation upon Repayment


 


No amount repaid under this Agreement may subsequently
be reborrowed other than any amount of a Revolving Facility Advance or, as the
case may be, a Swingline Facility Advance repaid in accordance with
Clause 9.1 (Repayment of Revolving Facility Advances)
and upon any repayment (other than in respect of a Revolving Facility Advance,
as aforesaid) the availability of the relevant Facility shall be reduced by an
amount corresponding to the amount of such repayment and the Available
Commitment of each Lender in relation to that Facility shall be cancelled in an
amount equal to such Lender’s Proportion of the amount repaid.  In the event the proceeds of any repayment
applied in accordance with Clauses 12 (Voluntary
Prepayment) and 13 (Mandatory
Prepayment) exceeds the amount of Term Facility Outstandings at such
time, any such excess shall be applied to permanently reduce the Available
Revolving Facility.


 


13.                              MANDATORY PREPAYMENT


 


13.1                       Repayment from Net Proceeds


 


(a)                                 Equity Issue: The
Parent shall procure that on each date on which the Parent or any of its
Subsidiaries (other than a member of the CEAL Group to which the CEAL Exception
Conditions apply) receives any net cash proceeds from any sale or issuance of
Preferred Stock or common equity of (or cash capital contributions to) the
Parent or any of its Subsidiaries an amount equal to 50 per cent. of the
Net Cash Proceeds of the respective equity issuance or capital contribution
shall be applied in accordance with Clause 13.3 (Application of Mandatory Prepayments),
other than in relation to:


 


(i)                                   the issuances of the Parent Common Stock in accordance with any
employee incentive plan of the Parent and its Subsidiaries (including as a
result of the exercise of any options with respect thereto) in an aggregate
amount not to exceed €30,000,000 in any fiscal year of the Parent;


 


(ii)                               the equity contributions to any Subsidiary of the Parent made by the
Parent or any other Subsidiary of the Parent;


 


(iii)                           the issuance of shares specifically for the Refinancing of the
Senior Subordinated Notes and/or the Parent Preferred Stock and/or New Senior
Subordinated Notes; and


 


(iv)                              the issuance of the Parent Common Stock in an aggregate amount not
to exceed €3,000,000 in any fiscal year of the Parent.


 


For the avoidance of doubt any Net Cash
Proceeds from any sale or issuance of Preferred Stock or common equity of (or
cash capital contributions to) the Parent held in escrow with a commercial bank
which is a Lender with a rating of A1/P1 from S&P shall not be required to
be applied in accordance with Clause 13.3 (Application
of Mandatory Prepayments) until such proceeds are released from
escrow.


 


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(b)                                 Asset Sale: The Parent
shall procure that on each date upon which the Parent or any of its
Subsidiaries (other than a member of the CEAL Group to which the CEAL Exception
Conditions apply) receives Net Sale Proceeds from any Asset Sale (including,
for the avoidance of doubt, in relation to any sale, lease or disposal of CEAL
or all or substantially all of the assets of the CEAL Group) , an amount equal
to 100 per cent. of the Net Sale Proceeds from such Asset Sale shall be
applied in accordance with Clause 13.3 (Application
of Mandatory Prepayments) provided that (save in respect of any
Asset Sale in relation to any sale, lease or disposal of CEAL or all or
substantially all of the assets of the CEAL Group), so long as no Default or
Event of Default then exists, up to €50,000,000 of the Net Sale Proceeds of
Asset Sales (other than in relation to any sale, lease or disposal of CEAL or
all or substantially all of the assets of the CEAL Group) effected in
accordance with Clause 26.2 (Consolidation,
Merger, Purchase or Sale of Assets, etc.) shall not be required to
be applied in accordance with Clause 13.3 (Application of Mandatory Prepayments) on the date of the
receipt thereof to the extent that such Net Sale Proceeds shall be used (A) to
effect Permitted Acquisitions, (B) to purchase replacement equipment
and/or (C) make additional Capital Expenditures, in each case in
accordance with the requirements of this Agreement, within 360 days
following such date and if all or any portion of such Net Sale Proceeds not so
required to be applied are not so utilised within 360 days after the date
of the receipt of such Net Sale Proceeds, then such remaining portion shall be
applied on the date falling 360 days after the date of receipt of such Net
Sale Proceeds in accordance with the requirements of this paragraph (b).


 


Concurrently with each
delivery of financial statements pursuant to paragraph (a) (Quarterly Financial Statements) or (b) (Annual Financial Statements) of Clause 23.1 (Information Covenants), the Parent shall also deliver a
certificate setting forth in reasonable detail the calculation of:


 


(1)                                the
dates and amount of Net Sale Proceeds for each Assets Sale which occurred
during the respective fiscal quarter or year, which Net Sale Proceeds were not
applied to repay principal of Term Facility Outstandings (or to reduce
Commitments) pursuant to this paragraph (b));


 


(2)                                the
amount of Net Sale Proceeds from Asset Sales previously effected (identifying
the date of the respective Asset Sales) applied during the respective fiscal
quarter or year pursuant to this paragraph (b); and


 


(3)                                any
amount of Net Sale Proceeds in respect of which the 360 day period
referenced above has lapsed during the respective fiscal quarter or year
without the Net Sale Proceeds having been applied as contemplated by this paragraph (b).


 


Notwithstanding anything to the contrary above, in
cases where the amount required to be repaid by any Borrower on any date
pursuant to the foregoing would be less than €1,000,000, the relevant Borrower
may defer the required repayment until the first date upon which the aggregate
amount which would be required to be applied pursuant to this paragraph (b) would
equal or exceed €1,000,000.


 


For the avoidance of doubt any Net Sale Proceeds held
in escrow with a commercial bank which is a Lender with a rating of A1/P1 from
S&P shall not be required to be 


 


91

















 


applied in accordance with Clause 13.3 (Application of Mandatory Prepayments) until such Net Sale
Proceeds are released from escrow.


 


(c)                                 Indebtedness: The
Parent shall procure that on each date on which the Parent or any of its
Subsidiaries (other than a member of the CEAL Group to which the CEAL Exception
Conditions apply) receives any cash proceeds from any incurrence of
Indebtedness (other than Indebtedness permitted in accordance with
Clause 26.4 (Indebtedness)
and Indebtedness under any Finance Document) for borrowed money, an amount
equal to 100 per cent. of the Net Cash Proceeds of such Indebtedness shall
be applied in accordance with Clause 13.3 (Application of Mandatory Prepayments).


 


For the avoidance of doubt any Net Sale Proceeds held
in escrow with a commercial bank which is a Lender with a rating of Al/P1 from
S&P shall not be required to be applied in accordance with Clause 13.3
(Application of Mandatory Prepayments)
until such Net Sale Proceeds are released from escrow.


 


(d)                                 Insurance Claims: The
Parent shall procure that within 10 days following each date on which the
Parent or any of its Subsidiaries (other than a member of the CEAL Group to
which the CEAL Exception Conditions apply) receives any proceeds from any
Recovery Event, an amount equal to 100 per cent. of the proceeds of such
Recovery Event (net of reasonable costs including, without limitation, legal
costs and expenses, and taxes incurred in connection with such Recovery Event)
shall be applied in accordance with Clause 13.3 (Application of Mandatory Prepayments) provided that:


 


(i)                                   any net proceeds from Recovery Events received by the Parent and/or
its Subsidiaries during any fiscal year of the Parent equal to or less than
€10,000,000 shall be excluded; and


 


(ii)                               if the net proceeds from Recovery Events received by the Parent and
its Subsidiaries when aggregated with the net proceeds received from any other
Recovery Events during any fiscal year of the Parent are greater than
€10,000,000, then so long as no Default or Event of Default then exists and to
the extent that:


 


(A)                              the
amount of such proceeds which are in excess of €10,000,000, together with other
cash available to the Parent and permitted to be spent by it on Capital
Expenditures during the relevant period pursuant to Clause 24.1 (Capital Expenditures) (without regard to
Clause 24.1(c)(i) (Capital
Expenditures) in the case of such other cash), equals 100 per
cent. of the cost of replacement or restoration of the properties or assets in
respect of which such proceeds were paid as determined by the Parent in good
faith;


 


(B)                              the
Parent has delivered to the Agent a certificate on or prior to the date the
payment would otherwise be required pursuant to this Clause 13.1(d) certifying
its determination as required by sub-paragraph (A); and


 


(C)                              the
Parent has delivered to the Agent such evidence as the Agent may reasonably
request in form, scope and substance reasonably


 


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satisfactory to the Agent establishing that the Parent
reasonably expects to have sufficient resources available to it (including,
without limitation, cash, revenues and insurance proceeds, such that the Parent
and its Subsidiaries can reasonably be expected to satisfy all obligations of
the Parent and its Subsidiaries without any unreasonable delay or extension
thereof) for the period from the date of the event giving rise to the Recovery
Event and continuing through the completion of the replacement or restoration
of respective properties or assets,


 


then the entire amount of the proceeds of such
Recovery Event shall be deposited with the Agent pursuant to a cash collateral
arrangement reasonably satisfactory to the Agent and the Parent whereby such
proceeds shall be disbursed to the Parent or its order from time to time as
needed to pay actual costs incurred by it in connection with the replacement or
restoration of the respective properties or assets (pursuant to such reasonable
certification requirements as may be established by the Agent), provided further that at any time while an Event of Default
has occurred and is continuing, the Instructing Group may direct the Agent (in
which case the Agent shall, and is hereby authorised by the Parent and the Borrowers
to, follow said directions) to apply any proceeds then on deposit in such
collateral account to the repayment of the Outstandings hereunder in the same
manner as proceeds would be applied pursuant to Clause 6.3 (Application of Proceeds) of the Intercreditor
Deed and provided further, that if any portion of such proceeds is not required
to be applied as required by the Instructing Group and such proceeds are either
(aa) not so used or committed to be so used within one year after the date
of the respective Recovery Event, such proceeds shall be applied on the first
anniversary date of the respective Recovery Event or (bb) if committed to be
used within one year after the date of receipt of such proceeds and not so used
within two years after the date of the respective Recovery Event, such proceeds
shall be applied on the second anniversary date of the respective Recovery
Event, in each case in accordance with the requirements of Clause 13.3 (Application of Mandatory Prepayments).


 


For the avoidance of doubt any Net Sale Proceeds held
in escrow with a commercial bank which is a Lender with a rating of A1/P1 from
S&P shall not be required to be applied in accordance with Clause 13.3
(Application of Mandatory Prepayments)
until such Net Sale Proceeds are released from escrow.


 


(e)                                  Permitted Receivables Transactions: On each date upon which the Parent or any of its Subsidiaries (other
than a member of the CEAL Group to which the CEAL Exception Conditions apply)
receives Permitted Receivables Transaction Proceeds, the Parent or the relevant
Subsidiary shall:


 


(i)                                    so long as no Event of Default has occurred and is continuing at the
time of receipt by the Parent or any of its Subsidiaries, as the case may be,
of such Permitted Receivables Transaction Proceeds:


 


(A)                               if the
amount of Adjusted Permitted Receivables Transaction Outstandings is less than
or equal to €200,000,000, be permitted to 


 


93

















 


retain 100% of the relevant Permitted Receivables
Transaction Proceeds; or


 


(B)                               if the
amount of Adjusted Permitted Receivables Transaction Outstandings is greater
than €200,000,000 but less than or equal to €300,000,000, be required to apply
in accordance with Clause 13.3 (Application of Mandatory
Prepayments) the relevant Applicable Proceeds in an amount equal to
50 per cent. of the amount of such Adjusted Permitted Receivables
Transaction Outstandings less the higher of (i) €200,000,000 and (ii) the
Adjusted Permitted Receivables Transaction Outstandings prior to receipt of
such Applicable Proceeds; or


 


(C)                               if the
amount of Adjusted Permitted Receivables Transaction Outstandings is greater
than €300,000,000, be required to apply in accordance with Clause 13.3 (Application of Mandatory Prepayments) the relevant
Applicable Proceeds in an amount equal to 100 per cent. of the amount of
such Adjusted Permitted Receivables Transaction Outstandings less the higher of
(i) €300,000,000 and (ii) the Adjusted Permitted Receivables
Transaction Outstandings prior to receipt of such Applicable Proceeds and, if
prior to such receipt, the aggregate Adjusted Permitted Receivables Transaction
Outstandings were less than or equal to €300,000,000 an amount equal to
50 per cent. of the difference between €300,000,000 and the higher of (i) €200,000,000
and (ii) the Adjusted Permitted Receivables Transaction Outstandings prior
to receipt of such Applicable Proceeds;


 


and provided that the maximum aggregate amount of all
Applicable Proceeds to be retained by the Parent and its Subsidiaries shall not
exceed €250,000,000; and


 


(ii)                                if at any time an Event of Default has occurred and is continuing,
be required to apply in accordance with Clause 13.3 (Application
of Mandatory Prepayments) an amount equal to 100 per cent. of
such Permitted Receivables Transaction Proceeds received after the occurrence
of such Event of Default, to the extent that the amount of the Permitted
Receivables Transaction Outstandings immediately following receipt of such
Permitted Receivables Transaction Proceeds exceeds the amount of the Permitted
Receivables Transaction Outstandings immediately before receipt of such
Permitted Receivables Transaction Proceeds.


 


Notwithstanding anything to the contrary contained in
this paragraph (e), in cases where the amount required to be repaid by any
Borrower on any date would be less than €1,000,000, the relevant Borrower may
defer the respective required repayment until the first date upon which the
aggregate amount which would (but for this sentence) be required to be applied
pursuant to this paragraph (e) (giving effect to the receipt of
proceeds on such date, together with any such proceeds received prior to such
date which have not yet been applied pursuant to this paragraph (e) and
any receipts thereafter) would equal or exceed €1,000,000.


 


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For the purposes of this
Clause 13.1(e):


 


“Applicable Proceeds”
means Permitted Receivables Transaction Proceeds but excluding in any event
proceeds of subsequent sales of Receivables Facility Assets pursuant to a
Permitted Receivables Transaction after the initial sale date except to the
extent to which the respective sale increases Permitted Receivables Transaction
Outstandings under Permitted Receivables Transactions (including for the
avoidance of doubt, any Permitted Receivables Transaction entered into prior to
the Fifth Amendment and Restatement Effective Date) to an amount in excess of
the highest amount of Permitted Receivables Transaction Outstandings previously
attained


 


“Adjusted Permitted
Receivables Transaction Outstandings” means, at any time, the
highest amount of Permitted Receivables Transaction Outstandings attained on or
prior to such time.


 


13.2                        Repayment from Excess Cash Flow


 


The Parent shall
procure that on each Excess Cash Flow Payment Date, an amount equal to the
Applicable Excess Cash Flow Percentage of Excess Cash Flow (other than any
amounts from Excess Cash Flow previously applied in accordance with
Clause 12.3 (Application of Voluntary
Prepayments)) for the relevant Excess Cash Flow Payment Period shall
be applied in accordance with Clause 13.3 (Application
of Mandatory Prepayments).


 


13.3                        Application of Mandatory Prepayments


 


(a)                                  Order of Application


 


Each amount referred to in
Clause 13.1 (Repayment from Net Proceeds) or Clause 13.2
(Repayment from Excess Cash Flow) shall,
subject to the provisions of paragraph (b) of Clause 13.3 (Bond Offerings) and to the provisions of
paragraph (c) (Waivable Mandatory
Repayment) of this Clause 13.3, be applied:


 


(i)                                    first, to the prepayment of A Facility Advances, D1 Facility
Advances, D2 Facility Advances and Incremental Term Facility Advances pro rata
to the respective Term Facility Outstandings; in relation to each Facility such
prepayment shall be applied either:


 


(A)                                               against
all remaining Scheduled Repayments of such Facility pro rata to the respective
amounts of such Scheduled Repayments; or


 


(B)                                               if the
Borrower so elects, in the following order:


 


(I)                                first,
to the prepayment, in direct order of maturity of Scheduled Repayments for such
Facility which will be due within 15 months after the date of mandatory
prepayment; and


 


(II)                            thereafter,
to the prepayment of all remaining Scheduled Repayments of such Facility pro
rata to the respective amounts of such Scheduled Repayments; and


 


95

















 


(ii)                                second, to repay Revolving Facility Outstandings with a
corresponding permanent reduction in Revolving Facility Commitments.


 


(b)                                Bond Offerings:
Notwithstanding the provisions of paragraphs (a) above, the first
€70,000,000 of Net Cash Proceeds referred to in paragraph (c) (Indebtedness) of Clause 13.1 (Repayment from Net Proceeds) received from
any incurrence of Indebtedness relating to any issuance of bonds by the Parent
or any of its Subsidiaries at any time during the period ending on the date
falling 6 months after the Effective Date shall, subject to the provisions of
paragraph (c) of this Clause 13.3, be applied:


 


(i)                                    first, to the prepayment of D1 Facility Advances and D2 Facility
Advances, pro rata to the D Facility Outstandings and against all remaining
Scheduled Repayments of each such Facility pro rata to the respective amounts
of such Scheduled Repayments; and


 


(ii)                                second, to the prepayment of A Facility Advances, D1 Facility
Advances and D2 Facility Advances, pro rata to the respective Term Facility
Outstandings; in relation to each Facility such prepayment shall be applied
against all remaining Scheduled Repayments of such Facility pro rata to the
respective amounts of such Scheduled Repayments.


 


(c)                                 Waivable Mandatory Repayment:  In relation to any
repayment made pursuant to Clause 13.1 (Repayment
from Net Proceeds) or Clause 13.2 (Repayment from Excess Cash Flow) which is required to be
applied to D Facility Advances, if on or prior to the date of such repayment
pursuant to this Clause 13, the Existing Borrower has given the Agent
written notification that it has elected to give each Lender with
D Facility Outstandings the right to waive such Lender’s rights to receive
such repayment (the “Waivable
Mandatory Repayment”) the Agent shall notify such
Lenders of such receipt and the amount of the repayments to be applied to each
such Lender’s Proportion of D Facility Outstandings, provided that in no event
shall the aggregate amount of any Waivable Mandatory Repayment exceed the sum
of (x) the aggregate principal amount of Term Facility Outstandings
(excluding D Facility Outstandings) after giving effect to any applications of
payments (other than any reallocation of the respective Waivable Mandatory
Repayment pursuant to this paragraph (c)) to such other Term Facility
Outstandings as a result of the repayments then being made pursuant to this
Clause 13 and (y) the Available Revolving Facility as same will be in
effect after giving effect to any reductions thereto (other than as a result of
any reallocation of the respective Waivable Mandatory Repayment pursuant to
this Clause 13) concurrently being made.


 


Waiver Mechanics:  In the event any such Lender with D Facility
Outstandings desires to waive such Lender’s right to receive any such Waivable
Mandatory Repayment in whole or in part, such Lender shall so advise the Agent
no later than 5:00 p.m. five Business Days after the date of such notice
from the Agent which notice shall also include the amount the Lender desires to
receive with respect to its D Facility Outstandings.  If the Lender does not reply to the Agent
within such five Business Day period, it will be deemed acceptance of the total
payment.  If the Lender does not specify
an amount it wishes to receive, it will be deemed acceptance of 100 per
cent. of the total payment.  In the event
that any such Lender waives such Lender’s rights to any such Waivable Mandatory
Repayment, the Agent shall apply 100 per cent. of the amount so waived by
such Lenders to (x) repay the Term Facility 


 


96

















 


Outstandings (excluding the D Facility Outstandings)
in accordance with paragraph (a) above and (y) to the extent in
excess of the amount to be applied pursuant to preceding clause (x), to reduce
the Available Revolving Facility on a pro rata basis
based on the relative amounts of the Available Revolving Facility and the
Revolving Facility Outstandings (in each case as in effect before giving effect
to such reduction).


 


Cash Collateral:  If the Existing Borrower elects to give the
notice described above in this paragraph (c) with respect to any such
repayment, the amount of the respective Waivable Mandatory Repayment shall be
deposited with the Agent on the date such repayment is otherwise made pursuant
to paragraph (a) above (and held by the Agent as cash collateral for
the D Facility Outstandings and, but only to the extent Lenders with D Facility
Outstandings waive their right to receive their share of the Waivable Mandatory
Repayment, for the benefit of all Lenders in a cash collateral account which
shall permit the investment thereof in Cash Equivalents reasonably satisfactory
to the Agent until the proceeds are applied to the applicable Outstandings) and
the respective repayment shall not be required to be made until the seventh
Business Day occurring after the date the respective repayment would otherwise
have been required to be made.


 


Partial Waiver of Repayment:  Notwithstanding anything to the contrary contained
above, if one or more Lenders holding D Facility Outstandings waives its right
to receive all or any part of any Waivable Mandatory Repayment, but less than
all the Lenders holding the respective D Facility Outstandings waive in full
their right to receive 100 per cent. of the total payment otherwise
required with respect to the respective D Facility Outstandings, then of the
amount actually applied to the repayment of the respective D Facility
Outstandings of Lenders which have waived in part, but not in full, their right
to receive 100 per cent. of such repayment, such amount shall be applied
to each D Facility Advance of the respective D Facility Outstandings, on a
pro rata basis (so that each Lender
holding D Facility Outstandings shall, after giving effect to the
application of the respective repayment, maintain the same percentage (as
determined for such Lender, but not the same percentage as the other Lenders
hold and not the same percentage held by such Lender prior to repayment) of
each D Facility Advance which remains outstanding after giving effect to such
application).  For the avoidance of doubt
any amount to be applied in accordance with this paragraph shall only
apply to such portion (if any) of the D Facility Outstandings which such D Facility
Lender has not waived.


 


(d)                                 Revolving Facility:  Any repayment of any Revolving Facility
Outstandings under this Agreement shall be applied first against Revolving
Facility Advances and when all Revolving Facility Advances have been repaid in
full, to provide cash collateral in respect of any Outstanding L/C Amounts.


 


14.                               INTEREST ON REVOLVING AND SWINGLINE
FACILITY ADVANCES


 


14.1                        Interest Payment Date for Revolving Facility Advances


 


On each Repayment
Date (and, if the Term of any Revolving Facility Advance exceeds 3 months,
on the expiry of each period of 3 months during such Term) each Borrower shall
pay accrued interest on each Revolving Facility Advance made to it.


 


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14.2                        Interest Rate for Revolving Facility Advances


 


The rate of
interest applicable to each Revolving Facility Advance during its Term shall be
the rate per annum which is the sum of the Applicable Margin for the Revolving
Facility, the Associated Costs Rate for such Advance at such time and EURIBOR
or, in relation to any Revolving Facility Advance denominated in an Optional
Currency, LIBOR, for the relevant Term.


 


14.3                        Interest Rate for Swingline Facility Advances


 


The rate of
interest applicable to each Swingline Facility Advance during its Term shall be
the rate per annum which is the sum of the Associated Costs Rate for such
Advance at such time and:


 


(a)                                 in relation to a Dollar Swingline Facility Advance, the sum of the
Applicable Margin for Dollar Swingline Facility Advances and the higher of (i) the
Prime Lending Rate at such time and (ii) the sum of 0.50 per cent.
and the Federal Funds Rate at such time; and


 


(b)                                 in relation to a Euro Swingline Facility Advance, the sum of the
Applicable Margin for Euro Swingline Facility Advances and EURIBOR at such
time,


 


for the relevant
Term.


 


14.4                        Applicable Margin Ratchet for Revolving Facility Advances after
Event of Default


 


Upon the occurrence
of any Event of Default, the Applicable Margin for the Revolving Facility and
the Swingline Facility shall revert to the Revolving Facility Margin so long as
such Event of Default is continuing.


 


15.                               INTEREST ON TERM FACILITY ADVANCES


 


15.1                        Interest Periods for Term Facility Advances


 


The period for
which a Term Facility Advance is outstanding shall be divided into successive
periods (each an “Interest Period”) each of which
(other than the first) shall start on the last day of the preceding such
period and any Interest Period which begins during or at the same time as any
other Interest Period in respect of a Term Facility Advance made under the same
Term Facility shall end at the same time as that other Interest Period.


 


15.2                        Duration


 


The duration of
each Interest Period shall, save as otherwise provided in this Agreement, be 1,
2, 3 or 6 months, in each case as the Authorised Representative of the
applicable Borrower may by not less than three Business Days’ prior notice to
the Agent select or such other period as the Lenders may agree, provided that:


 


(a)                                 if that Borrower (or the Parent) fails to give such notice of
selection in relation to an Interest Period, the duration of that Interest
Period shall, subject to the other provisions of this Clause 15, be 1
month;


 


98

















 


(b)                                 prior to the Syndication Date, unless the Agent otherwise specifies,
the duration of each Interest Period shall be 1 month (or, if less, such
duration necessary to ensure that such Interest Period ends on the Syndication
Date); and


 


(c)                                 any Interest Period that would otherwise end during the month
preceding or extend beyond a Repayment Date relating to the relevant Term
Facility Outstandings shall be of such duration that it shall end on that
Repayment Date if necessary to ensure that there are Advances under the
relevant Facility with Interest Periods ending on the relevant Repayment Date
in a sufficient aggregate amount to make the repayment due on that Repayment
Date.


 


15.3                        Division of Term Facility Advances


 


Subject to the
requirements of Clause 15.2 (Duration) a
Borrower may, by not less than 5 Business Days’ prior notice to the Agent,
direct that any Term Facility Advance borrowed by it shall, at the beginning of
the next Interest Period relating to it, be divided into (and thereafter, save
as otherwise provided in this Agreement, be treated in all respects as) two or
more Advances in such amounts (equal in aggregate to the Euro Amount of the
Term Facility Advance being so divided) as shall be specified by that Borrower
in such notice provided that that Borrower shall not be entitled to make such a
direction if any Term Facility Advance thereby coming into existence would have
a Euro Amount of less than €1,000,000.


 


15.4                        Payment of Interest for Term Facility Advances


 


On the
last day of each Interest Period (or if such day is not a Business
Day, on the immediately succeeding Business Day in the then current calendar
month (if there is one) or the preceding Business Day (if there is not)), and
if the relevant Interest Period exceeds 3 months, on the expiry of each 3
month period during that Interest Period, each Borrower shall pay accrued
interest on the Term Facility Advance to which such Interest Period relates.


 


15.5                        Interest Rate for Term Facility Advances


 


The rate of
interest applicable to a Term Facility Advance at any time during an Interest
Period relating to it shall be the rate per annum which is the sum of the
Applicable Margin for the relevant Term Facilities, the Associated Costs Rate
for such Advance at such time and EURIBOR or, in relation to any Term Facility
Advance then denominated in an Optional Currency, LIBOR, for such Interest
Period.


 


15.6                        Applicable Margin Ratchet for Term Facility Advances after Event of
Default


 


Upon the occurrence
of any Event of Default, the Applicable Margin with respect to the
A Facility shall revert to the A Facility Margin so long as the Event of
Default is continuing.


 


16.                               MARKET DISRUPTION AND ALTERNATIVE
INTEREST RATES


 


16.1                        Market Disruption


 


If, in relation to
any Interest Period or Term:


 


(a)                                 the Relevant Interbank Rate is to be determined by reference to the
Reference Banks or Federal Funds brokers, as the case may be, and, at or about
11.00 a.m. on the Quotation Date for such Interest Period or Term, none or
only one of the Reference 


 


99

















 


Banks or
Federal Funds brokers, as the case may be, supplies a rate for the purpose of
determining the Relevant Interbank Rate for the relevant period; or


 


(b)                                 before the close of business in London on the Quotation Date for
such Interest Period or Term (or in relation to a Swingline Advance, before
1:00 p.m. on any day), the Agent has been notified by a Lender or
each of a group of Lenders to whom in aggregate 35 per cent. or more of
the relevant Advance is owed (or, in the case of an undrawn Advance, if made,
would be owed) that the cost to it of obtaining matching deposits for the relevant
Advance in the Relevant Interbank Market would be in excess of the Relevant
Interbank Rate,


 


then the Agent
shall notify the Parent and the Lenders of such event and, notwithstanding
anything to the contrary in this Agreement, Clause 16.2 (Substitute Interest Period and Interest Rate) shall apply
(if the relevant Advance is a Term Facility Advance which is already
outstanding or a Rollover Advance).  If
either paragraph (a) or (b) applies to a proposed Advance other
than a Rollover Advance, such Advance shall not be made.


 


16.2                        Substitute Interest Period and Interest Rate


 


(a)                                 If paragraph (a) of Clause 16.1 (Market
Disruption) applies (i) to an Advance (other than a Swingline
Advance), the duration of the relevant Interest Period or Term shall be 1
month, (ii) to a Swingline Advance, the duration of the relevant Term
shall be 5 Business Days or (iii) in each case, if less, such that it
shall end on the next succeeding Repayment Date.


 


(b)                                 If either paragraph of Clause 16.1 (Market
Disruption) applies to an Advance, the rate of interest applicable
to each Lender’s portion of such Advance during the relevant Interest Period or
Term shall (subject to any agreement reached pursuant to Clause 16.3 (Alternative Rate)) be the rate per annum which is the sum
of:


 


(i)                                    the Applicable Margin;


 


(ii)                                the rate per annum notified to the Agent by such Lender before the
last day of such Interest Period or Term to be that which expresses as a
percentage rate per annum the cost to such Lender of funding from whatever
sources it may select its portion of such Advance during such Interest Period
or Term; and


 


(iii)                            the Associated Costs Rate, if any, applicable to such Lender’s
participation in the relevant Advance.


 


16.3                        Alternative Rate


 


If:


 


(a)                                 Clause 16.1 (Market Disruption)
applies; or


 


(b)                                 by reason of circumstances affecting the Relevant Interbank Market
during any period of 3 consecutive Business Days, the Relevant Interbank Rate
(as appropriate) is not available to prime banks in the Relevant Interbank
Market,


 


100

















 


then, if the Agent or the Parent so requires, the Agent and the Parent
shall enter into negotiations with a view to agreeing an alternative basis
within one month:


 


(i)                                    for determining the rate of interest from time to time applicable to
Advances; and/or


 


(ii)                                upon which the Advances may be maintained (whether in euro or some
other currency) thereafter,


 


and any such
alternative basis that is agreed shall take effect in accordance with its terms
and be binding on each party to this Agreement, provided that the Agent may not
agree any such alternative basis without the prior consent of each Lender.


 


17.                               COMMISSIONS AND FEES


 


17.1                        Commitment Fees


 


The Existing
Borrower shall pay to the Agent for the account of each Arranger (with respect
to the period from the date of the Commitment Letter) and each Lender (with
respect to the period from the Effective Date), a commitment commission on the
aggregate amount of such Lender’s Available Commitment (if any) in respect of
each Facility, from day to day during the period beginning on the
date of the Commitment Letter and ending on the relevant Termination Date, such
commitment commission to be calculated at the applicable percentage rate per
annum set out below and payable on the Initial Borrowing Date and thereafter in
arrear on the last day of each successive period of 3 months which ends
during such period and on the Termination Date for the relevant Facility.


 


	
  Facility

  	
   

  	
  Percentage Rate

  
	
   

  	
   

  	
   

  
	
  Revolving

  	
   

  	
  0.75 per cent.

  
	
   

  	
   

  	
   

  
	
  A

  	
   

  	
  0.50 per
  cent.

  
	
   

  	
   

  	
   

  
	
  B

  	
   

  	
  0.50 per cent.

  
	
   

  	
   

  	
   

  
	
  D

  	
   

  	
  0.50 per cent.

  



 


For the purposes of
this Clause 17.1, Available Commitment shall include the commitment of the
Arrangers under the Commitment Letter (it being agreed that the undrawn and
uncancelled commitment under the Commitment Letter is for an amount not
exceeding €730,000,000).


 


17.2                        Underwriting Fee


 


The Existing
Borrower shall pay to the Arrangers the fees specified in the letter dated on or about the date of the Commitment
Letter from the Arrangers to the Parent and the Existing Borrower at the
times and in the amounts specified in such letter.


 


17.3                        Agency Fee


 


The Existing
Borrower shall pay to the Agent for its own account the fees specified in the
letter dated on or about the date of
the Commitment Letter from the Agent to the Parent and the Existing
Borrower at the times and in the amounts specified in such letter.


 


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17.4                        Incremental Facility Fee


 


The relevant
Borrower(s) shall pay to the relevant Incremental Revolving Facility
Lender or Incremental Term Facility Lender, as the case may be, for its own
account the fees agreed between such Borrower(s) and the relevant Lender
at the times and in the amount specified in the relevant Incremental Facility
Commitment Agreement.


 


17.5                        Documentary Credit Fee


 


The relevant
Borrower shall, in respect of each Documentary Credit, pay to the Agent for the
account of each Indemnifying Lender (for distribution in proportion to each
Indemnifying Lender’s L/C Proportion of such Documentary Credit) a documentary
credit fee (a) at any time prior to the occurrence of a Sharing Event, in
the currency in which the relevant Documentary Credit is denominated and (b) at
any time on or after the occurrence of a Sharing Event, in euros, at a rate
0.25 per cent. per annum applied on the Outstanding L/C Amount in relation
to such Documentary Credit.  Such
documentary credit fee shall be paid in arrear on the last Business Day of each
March, June, September and December which begins during the Term of
the relevant Documentary Credit and on the relevant Expiry Date.  Accrued Documentary Credit fees shall also be
payable on the cancelled amount of any Revolving Facility Commitment at the
time such cancellation is effective, if the Revolving Facility Commitment is
cancelled in full and a Documentary Credit is repaid in full.


 


17.6                        L/C Bank Fee


 


The relevant
Borrower shall pay to the L/C Bank a fronting fee (a) at any time prior to
the occurrence of a Sharing Event, in the currency in which the relevant
Documentary Credit is denominated and (b) at any time on or after the
occurrence of a Sharing Event, in euros, at a rate 0.25 per cent. per
annum applied on the Outstanding L/C Amount in relation to such Documentary
Credit provided that in no event shall such fronting fee be less than €500 (or
its equivalent).  Such fronting fee shall
be paid in arrear on the last Business Day of each March, June, September and
December which begins during the Term of the relevant Documentary Credit
and on the relevant Expiry Date.  Accrued
fronting fees shall also be payable on the cancelled amount of any Revolving
Facility Commitment at the time such cancellation is effective, if the
Revolving Facility Commitment is cancelled in full and a Documentary Credit is
repaid in full.


 


18.                               TAXES


 


18.1                        Tax Gross-up


 


(a)                                 Except as provided in paragraph (c) below, each payment
made by an Obligor under a Finance Document shall be made by it without
reduction for any Tax Deduction.  In the
event of a Tax Deduction, the amount of the payment due shall, unless
paragraph (c) below applies, be increased to an amount so that, after
the required Tax Deduction is made, the payee receives an amount equal to the
amount it would have received had no Tax Deduction been required.


 


(b)                                 If a Tax Deduction is required by Law to be made by the Agent or the
Security Trustee from any payment to any Finance Party which represents an
amount or amounts received from an Obligor, that Obligor shall, unless
paragraph (c) below applies, pay directly to that Finance Party an
amount which, after making the required 


 


102

















 


Tax Deduction
enables the payee of that amount to receive an amount equal to the payment
which it would have received if no Tax Deduction had been required.


 


(c)                                 An Obligor is not required to make a Tax Payment to a Lender under
paragraphs (a) or (b) above for a Tax Deduction in respect of any
payment to that Lender under the Finance Documents where that Lender has not
provided forms required to be provided under paragraph (e) or (f) hereof
with respect to that payment.


 


(d)                                 An Obligor shall timely deposit any Tax Deduction it makes to the
relevant taxing authority.  Within
45 days, the Obligor making that Tax Deduction shall deliver to the Agent
for the Finance Party entitled to the payment to which such Tax Deduction or
payment relates a certification of receipt of payment by the relevant taxing
authority or other evidence which is reasonably satisfactory to that Finance
Party that the Tax Deduction or other payment has been made to the relevant tax
authority.


 


(e)                                 Each Lender (other than a U.S. Lender) shall deliver to the Existing
Borrower and the Parent on or before the Initial Borrowing Date (if sooner, the
date of the first payment, to such Lender under any of the Finance Documents)
two accurate and complete original signed copies of:


 


(i)                                    a duly completed United States of America Internal Revenue Service Form W-8BEN
(or such Form as may replace it) relating to exemption from withholding in
respect of payments made by the Existing Borrower to that Lender under the
Finance Documents:


 


(A)                              claiming
that Lender’s entitlement to the United States federal “portfolio interest
exemption” in relation to payment of interest on participations in Advances to
the Existing Borrower; or


 


(B)                              certifying
that that Lender is entitled to a complete exemption from the United States
taxation under a Double Taxation Treaty; or


 


(ii)                                a duly completed United States of America Internal Revenue Service Form W-8ECI
(or such Form as may replace it) certifying that the payments made by the
Existing Borrower to that Lender under the Finance Documents are effectively
connected with the conduct by that Lender of a trade or business within the
United States of America.


 


(f)                                   Each Lender agrees that when a lapse in time or change in
circumstances renders the previous certification obsolete or inaccurate in any
material respect, it will deliver to the Existing Borrower and the Parent two
new accurate and complete original signed copies of the relevant Internal
Revenue Service Form referred to above or any alternative certification
specified above and such other forms as may be required in order to confirm or
establish the entitlement of such Lender to a continued exemption from or
reduction in United States withholding tax with respect to payments under the
Finance Documents, or it shall immediately notify the Existing Borrower and the
Agent of its inability to deliver any such Form or certification, in which
case such Lender shall not be required to provide forms described in this
paragraph (f).


 


103

















 


18.2                         Tax Indemnity


 


The Obligors agree
jointly and severally to indemnify and hold harmless each Lender in respect of
any taxes that are described in the definition of “Tax Deduction” and taxes
imposed on or measured by the net income or net profits of such Lender in
respect of the amounts paid pursuant to paragraphs (a) and (b) of
Clause 18.1 (Tax Gross-Up)
and this Clause 18.2.


 


18.3                         Tax Credit


 


(a)                                  If an Obligor makes a Tax Payment and the relevant Finance Party
determines that:


 


(i)                                    a Tax Credit is attributable to that Tax Payment; and


 


(ii)                                that Finance Party has obtained, utilised and retained that Tax
Credit,


 


the Finance Party shall (subject to paragraph (b) below
and to the extent that such Finance Party can do so without prejudicing the
availability and/or the amount of the Tax Credit and the right of that Finance
Party to obtain any other benefit, relief or allowance which may be available
to it) pay to the Obligor such amount which that Finance Party determines will
leave it (after that payment) in the same after-tax position as it would have
been in had the Tax Payment not been made by the Obligor.


 


(b)                                 (i)                                   Each
Finance Party shall have an absolute discretion, consistent with the policies
of such Finance Party, as to the time at which and the order and manner in
which it realises or utilises any Tax Credits and shall not be obliged to
arrange its business or its tax affairs in any particular way in order to be
eligible for any credit or refund or similar benefit.


 


(ii)                                No
Finance Party shall be obliged to disclose to any other person any information
regarding its business, tax affairs or tax computations (including its tax
returns).


 


(iii)                            If a Finance
Party has made a payment to an Obligor pursuant to this Clause 18.3 on
account of a Tax Credit and such Tax Credit is subsequently reduced or
disallowed that Obligor shall, on demand, pay to that Finance Party the amount
which that Finance Party determines will put it (after that payment is
received) in the same after-tax position as it would have been in had no such
payment been made to that Obligor.


 


(c)                                  No Finance Party shall be obliged to make any payment under this
Clause 18.3 if, by doing so, it would contravene the terms of any
applicable Law or any notice, direction or requirement of any governmental or
regulatory authority (whether or not having the force of law).


 


19.                                INCREASED COSTS


 


19.1                         Increased Costs


 


Subject to Clause 19.3 (Exceptions),
the relevant Borrower shall within 5 Business Days of a written demand by the
Agent, pay for the account of a Finance Party the amount of any 


 


104

















 


Increased Cost incurred by that Finance Party or any of its Affiliates
as a result (direct or indirect) of:


 


(a)                                 the introduction or implementation of or any change in (or in the
interpretation, administration or application of) any Law of any central bank,
including the European Central Bank, the Financial Services Authority or any
other fiscal, monetary, regulatory or other authority;


 


(b)                                 compliance with any Law made after the date of this Agreement; or


 


(c)                                 the implementation of economic or monetary union by any Member State
which is not already a Participating Member State.


 


19.2                        Increased Costs Claims


 


(a)                                 A Finance Party intending to make a claim pursuant to
Clause 19.1 (Increased Costs) shall notify the
Agent of the event giving rise to the claim, following which the Agent shall
promptly notify the Parent.


 


(b)                                 Each Finance Party shall, as soon as practicable after a demand by
the Agent, provide a certificate confirming the amount of its Increased Costs
although failure to give such certificate shall not release or diminish the
relevant Borrowers’ obligations to pay the Increased Costs.


 


19.3                        Exceptions


 


Clause 19.1 (Increased Costs) does not apply to the
extent any Increased Cost is:


 


(a)                                 attributable to a Tax Deduction to the extent a payment is required
to be made by Obligor under Clause 18 (Taxes)
or other tax imposed on a Lender that the Lender is not otherwise entitled to
have reimbursed under this Agreement or any of the other Finance Documents;


 


(b)                                 compensated for by Clause 18.2 (Tax
Indemnity) (or would have been compensated for by Clause 18.2 (Tax Indemnity) but
was not so compensated solely because Clause 18.2 (Tax Indemnity) applied);


 


(c)                                 compensated for by the payment of the Associated Costs Rate; or


 


(d)                                 attributable to the wilful breach by the relevant Finance Party or
any of its Affiliates of any Law or regulation.


 


20.                               ILLEGALITY


 


If it becomes
unlawful in any relevant jurisdiction for a Lender to perform any of its
obligations as contemplated by this Agreement or to fund or maintain its
participation in any Advance or to issue a Documentary Credit:


 


(a)                                 that Lender shall promptly notify the Agent upon becoming aware of
that event;


 


(b)                                 upon the Agent notifying the Parent, the Available Commitments of
that Lender will immediately be cancelled and its Commitments reduced to zero
and such Lender shall 


 


105

















 


not thereafter
be obliged to participate in any Advance or issue or guarantee any Documentary
Credit; and


 


(c)                                 the relevant Borrower shall repay that Lender’s participation in the
Advances made to that Borrower on the last day of the current Interest
Period or Term for each Advance occurring after the Agent has notified the
Parent or, if earlier, the date specified by the Lender in the notice delivered
to the Agent (being no earlier than the last day of any applicable grace
period permitted by Law) and, if applicable, shall promptly reduce that Lender’s
L/C Proportion of the Outstanding L/C Amount in respect of any outstanding
Documentary Credit issued by it to zero, together with accrued interest and all
other amounts owing to that Lender under the Finance Documents.


 


21.                               REPLACEMENT AND MITIGATION


 


21.1                        Replacement of Lenders


 


If any Lender:


 


(a)                                 refuses to consent to certain proposed changes, waivers, discharges
or terminations with respect to this Agreement which have been approved by the
Instructing Group as (and to the extent) provided in Clause 45.7 (Replacement of non-Instructing Group Lender);
or


 


(b)                                 is owed any amounts under any of Clauses 18 (Taxes), 19.1 (Increased Costs) or 20 (Illegality) in a material amount in excess of those being
generally charged by the other Lenders,


 


the relevant
Borrower shall have the right, in accordance with the requirements of
Clause 39.3 (Assignments or Transfers
by Lenders), to replace such Lender (the “Replaced Lender”) with one or more Eligible Institution or
Eligible Institutions (collectively, the “Replacement
Lender”), each of whom shall be reasonably acceptable to the Agent
or, in the case of a replacement as provided in Clause 45.7 (Replacement of non-Instructing Group Lender)
where the consent of the respective Lender is required with respect to less
than all its Outstandings or Commitments, at the option of that Borrower, to
replace only the Commitments and/or Outstandings of such Lender in respect of
each Facility where the consent of such Lender would otherwise be individually
required, with identical Commitments and/or Outstandings of the respective
Facility provided by the Replacement Lender, provided that:


 


(i)                                   at
the time of any replacement pursuant to this Clause 21.1, the Replacement
Lender and the Replaced Lender shall enter into one or more Transfer
Certificate(s) pursuant to Clause 39.5 (Transfer Certificate) (and with all fees payable pursuant to
Clause 39.5 (Transfer Certificate)
to be paid by the Replacement Lender) pursuant to which the Replacement Lender
shall acquire all the Commitments and all Outstandings (or, in the case of the
replacement of less than all Commitments and Outstandings of the respective
Replaced Lender, all the Commitments and all Outstandings relating to the
Facility with respect to which such Lender is being replaced) of, and all
participations in all then Outstanding L/C Amounts where the respective Lender
is being replaced by, the Replacement Lender and, in connection therewith,
shall pay to (x) the Replaced Lender in respect thereof an amount equal to
the sum (in the relevant currency or currencies) of (A) an amount equal to
the 


 


106

















 


principal of, and all accrued interest on, all then
Outstandings of the respective Replaced Lender under each Facility with respect
to which such Replaced Lender is being replaced, (B) all unpaid amounts
(the “Unpaid L/Cs”) under
Clause 5.5(b) (Claims under a
Documentary Credit) with respect to which the respective Replaced
Lender is being replaced, in each case that have been funded by (and not
reimbursed to) such Replaced Lender at such time, together with all then unpaid
interest with respect thereto at such time and (C) an amount equal to all
accrued, but theretofore unpaid, fees owing to the Replaced Lender (but only
with respect to the relevant Facility or Facilities, in the case of the
replacement of less than all Outstandings then held by the respective Replaced
Lender) pursuant to Clause 17 (Commissions
and Fees) and (y) in the case of the replacement of any
Revolving Facility Commitment, the respective L/C Bank amounts equal to such
Replaced Lender’s Proportion of any Unpaid L/Cs evidenced by such Commitments
(which at such time remain Unpaid L/Cs) with respect to Documentary Credits
issued by such L/C Bank to the extent such amount was not theretofore funded by
such Replaced Lender, without duplication; and


 


(ii)                               all
obligations of the Borrowers owing to the Replaced Lender in respect of each
Facility where such Replaced Lender is being replaced (other than those
specifically described in clause (i) above in respect of which the
assignment purchase price has been, or is concurrently being, paid) shall be
paid in full to such Replaced Lender concurrently with such replacement.


 


Upon the execution
of the respective Transfer Certificate(s), the payment of amounts referred to
in sub-paragraphs (i) and (ii) above and recordation of the transfer
by the Agent, (x) the Replacement Lender shall become a Lender hereunder
and, unless the respective Replaced Lender continues to have Term Facility
Outstandings or any Commitment hereunder, the Replaced Lender shall cease to
constitute a Lender hereunder, except with respect to indemnification
provisions under this Agreement (including, without limitation, Clauses 18
(Taxes), 19.1 (Increased Costs), 33 (Borrower’s Indemnities), 37 (Sharing Among the Finance Parties) and 40
(Costs and Expenses)), which
shall survive as to such Replaced Lender and (y) in the case of the
replacement of any Revolving Facility Commitment pursuant to this
Clause 21.1, the respective Proportions of the Lenders relating to the
Revolving Facility shall be automatically adjusted at such time to give effect
to such replacement.


 


21.2                        Mitigation


 


Each Finance Party
shall, if requested by and in consultation with the Parent, take all reasonable
steps to mitigate any circumstances which arise and which would result in any
amount becoming payable under, or pursuant to, or cancelled pursuant to, any of
Clause 18 (Taxes),
Clause 19 (Increased Costs)
or Clause 20 (Illegality)
including (but not limited to) transferring its rights and obligations under
the Finance Documents to another Affiliate or Facility Office.


 


21.3                        Limitation of Liability


 


(a)                                 The Borrowers shall indemnify each Finance Party for all costs and
expenses reasonably incurred by that Finance Party as a result of steps taken
by it under Clauses 21.1 (Replacement
of Lenders) and 21.2 (Mitigation).


 


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(b)                                 A Finance Party is not obliged to take any steps under
Clauses 21.1 (Replacement of Lenders)
and 21.2 (Mitigation) if, in the
opinion of that Finance Party (acting reasonably), to do so might in any way be
prejudicial to it.


 


22.                               REPRESENTATIONS AND WARRANTIES


 


Each Obligor (in
the case of the Parent, both in respect of itself and each member of the Group
and in the case of the other Obligors in respect of itself) makes the
representations and warranties set out in this Clause 22 to each Finance
Party on the date of this Agreement.


 


22.1                        Due Organisation


 


(a)                                 It is a corporation duly incorporated under the laws of its
jurisdiction of incorporation with power to enter into those of the Finance
Documents to which it is party and to exercise its rights and perform its
obligations under them and all corporate and other action required to authorise
its execution of those of the Finance Documents to which it is party and its
performance of its obligations under them has been duly taken.


 


(b)                                 It is duly qualified and is authorised to do business and, in
jurisdictions having a concept of good standing, is in good standing in each
jurisdiction where the ownership, leasing or operation of its property or the
conduct of its business requires such qualifications.


 


22.2                        No Deduction


 


Under the laws of
its place of incorporation or, if different, residence in force at the date of
this Agreement, it will not be required to make any deduction for or
withholding on account of tax from any payment it may make under any of the
Finance Documents to which it is party to any party that is a Finance Party on
the date of this Agreement.


 


22.3                        Claims Pari Passu


 


Under the laws of
its jurisdiction of incorporation, and, if different, England and Wales, in
force at the date of this Agreement, the claims of the Finance Parties against
it under the Finance Documents to which it is party rank and will rank at least
pari passu with the claims of all its
unsecured creditors save those whose claims are preferred by any bankruptcy,
insolvency, liquidation or similar laws of general application.


 


22.4                        No Immunity


 


In any legal
proceedings taken in its jurisdiction of incorporation and, if different,
England and Wales in relation to any of the Finance Documents to which it is
party it will not be entitled to claim for itself or any of its assets immunity
from suit, execution, attachment or other legal process.


 


22.5                        Governing Law and Judgments


 


In any legal
proceedings taken in its jurisdiction of incorporation in relation to any of
the Finance Documents to which it is party, the choice of law expressed in such
documents to be the governing law of it and any judgment obtained in such
jurisdiction will be recognised and enforced.


 


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22.6                        All Actions Taken


 


All acts, conditions and things required to be done, fulfilled and
performed by it in order:


 


(a)                                to ensure that the obligations expressed to be assumed by it in the
Finance Documents to which it is party are legal, valid and binding; and


 


(b)                                to make the Finance Documents to which it is party admissible in
evidence in its jurisdiction of incorporation and, if different, England and
Wales,


 


have been done,
fulfilled and performed.


 


22.7                        No Filing or Stamp Taxes


 


Under the laws of
its place of incorporation and, if different, England and Wales, in force at
the date of this Agreement, it is not necessary that any of the Finance
Documents to which it is party be filed, recorded or enrolled with any court or
other authority in such jurisdiction or that any stamp, registration or similar
tax be paid on or in relation to any of them other than those filings which are
necessary to perfect the Security created pursuant to the Security Documents
and save as stated in the reservations and qualifications expressed in the
Legal Opinions.


 


22.8                        Binding Obligations


 


The obligations
expressed to be assumed by it in the Finance Documents to which it is party,
are legal, valid and binding and enforceable against it in accordance with the
terms thereof and no limit on its powers will be exceeded as a result of the
borrowings, grant of security or giving of guarantees contemplated by such
Finance Documents or the performance by it of any of its obligations
thereunder.


 


22.9                        No Winding-up


 


No member of the
Group has taken any corporate action nor have any other steps been taken or
legal proceedings been started or (to the best of its knowledge and belief)
threatened against any member of the Group, for its winding-up, dissolution,
administration or for the appointment of a receiver, administrator,
administrative receiver, conservator, custodian, trustee or similar officer of
it or of any or all of its assets or revenues save for any solvent winding-up
or reorganisation.


 


22.10                 No
Default


 


(a)                                 No Default is continuing or might reasonably be expected to result
from the making of any Advance or the issuing of any Documentary Credit.


 


(b)                                 No other event or circumstance is outstanding or has occurred which
constitutes or would (with the passage of time, the giving of notice, the
making of any determination or any combination of the foregoing) constitute a
default under any agreement or instrument which is binding on it or any of its
Subsidiaries or to which its (or its Subsidiaries’) assets are subject which is
reasonably likely to have a Material Adverse Effect.


 


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22.11                 No
Material Proceedings


 


(a)                                 No litigation, arbitration, action or administrative proceeding of
or before any court, arbitral body, or agency which would or is reasonably
likely to have a Material Adverse Effect has been started or, to the best of
its knowledge, is threatened or is pending against it or any member of the
Group, other than litigation action or administrative proceedings commenced
prior to the date of this Agreement, full details of which have been provided
in writing to the Agent prior to the date of this Agreement and which are set
out in Part IV of Schedule 10 (Existing Proceedings).


 


(b)                                 No labour disputes are current or, to the best of its knowledge,
threatened against it or any member of the Group which would or is reasonably
likely to have a Material Adverse Effect.


 


22.12                 Original
Financial Statements


 


Its Original
Financial Statements (other than the Pro Forma Financial Statements) were
prepared in accordance with GAAP and consistently applied (unless and to the
extent expressly disclosed to the Agent in writing to the contrary before the
date of this Agreement) and in
the case of audited financial statements present a true and fair view of, or
(in the case of unaudited financial statements) fairly present, the
consolidated financial position of such Obligor or, as the case may be, the
Group at the date as of which they were prepared and/or (as appropriate) the
results of operations and changes in financial position during the period for
which they were prepared.


 


22.13                 No
Material Adverse Effect


 


Since publication
of its Original Financial Statements there has been no material adverse change
in its business or financial condition or, in the case of the Parent, of any
member of the Group or the Group (taken as a whole) and no event or series of
events has occurred, in each case which has or which is reasonably likely to
have a Material Adverse Effect.


 


22.14                 No
Undisclosed Liabilities


 


As at the date as
of which its Original Financial Statements were prepared, neither it, its
Subsidiaries nor, as the case may be, any member of the Group had any material
liabilities (contingent or otherwise) which were not disclosed thereby (or by
the notes thereto) or reserved against therein and the Group had no material
unrealised or anticipated losses arising from commitments entered into by it
which were not so disclosed or reserved against.


 


22.15                 Information
Memorandum


 


In the case of the Parent only:


 


(a)                                 to the best of its knowledge and belief having made all reasonable
and proper enquiries, all statements of fact relating to the assets, financial
condition and operations of the Group contained in the Information Memorandum
and the Agreed Business Plan are true, complete and accurate in all material
respects as at their respective dates;


 


(b)                                 the opinions and views expressed in the Information Memorandum and
the Agreed Business Plan represent the honestly held opinions and views of the
Parent and were 


 


110





















 


arrived at
after careful consideration and were based on reasonable grounds as at their
respective dates;


 


(c)                                 all projections and forecasts contained in the Information
Memorandum and the Agreed Business Plan are based upon assumptions (including,
without limitation, assumptions as to the future performance of the business,
inflation, price increases and efficiency gains) which the Parent has carefully
considered and considers to be fair and reasonable as at their respective
dates; and


 


(d)                                 the Information Memorandum and the Agreed Business Plan did not omit
to disclose or take into account any matter known to the Parent after due and
careful enquiry where failure to disclose or take into account such matter
would result in the Information Memorandum and the Agreed Business Plan being
misleading in any material respect as at the date thereof.


 


22.16                 Projections


 


In the case of the Parent only:


 


(a)                                 to the best of its knowledge and belief having made all reasonable
and proper enquiries, all statements of fact relating to the assets, financial
condition and operations of the Group contained in the current Projections are
true, complete and accurate in all material respects as at their respective
dates;


 


(b)                                 the opinions and views expressed in the current Projections
represent the honestly held opinions and views of the Parent and were arrived
at after careful consideration and were based on reasonable grounds as at their
respective dates;


 


(c)                                 all projections and forecasts contained in the current Projections
are based upon assumptions (including, without limitation, assumptions as to
the future performance of the business, inflation, price increases and
efficiency gains) which the Parent has carefully considered and considers to be
fair and reasonable as at their respective dates; and


 


(d)                                 the current Projections did not omit to disclose or take into
account any matter known to the Parent after due and careful enquiry where
failure to disclose or take into account such matter would result in the
current Projections being misleading in any material respect as at the date
thereof.


 


22.17                 Indebtedness
and Liens


 


(a)                                 Save as permitted under Clause 26.4 (Indebtedness),
neither it nor any member of the Group has incurred any Indebtedness.


 


(b)                                 Save as permitted under Clause 26.1 (Liens),
no Lien exists over all or any of the present or future revenues or assets of
any member of the Group.


 


22.18                 Execution
of Finance Documents


 


Its execution of
the Finance Documents to which it is party and its exercise of its rights and
performance of its obligations thereunder do not and will not conflict:


 


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(a)                                 with any agreement, mortgage, bond or other instrument or treaty
which is binding upon it, any of its Subsidiaries or any of the assets of any
of its Subsidiaries or, except as provided in the Security Documents, result in
a requirement for the creation of any Lien over any such asset, in each case,
in any way;


 


(b)                                 with its or any of its Subsidiaries’ constitutional documents; or


 


(c)                                 with any applicable Law or regulation.


 


22.19                 Power
and Authority


 


It has the power
and authority to enter into, perform and deliver, and has taken all necessary
action to authorise the entry into, performance and delivery of, the Finance
Documents to which it is a party and the transactions contemplated by those
Finance Documents.


 


22.20                 Structure


 


(a)                                 The Group Structure Chart is a complete and accurate representation
of the structure of the Group.


 


(b)                                 Each Obligor other than the Parent is a wholly-owned Subsidiary of
the Parent.


 


22.21                 Environmental
Matters


 


(a)                                 It has, to the best of its knowledge and belief:


 


(i)                                    complied with all Environmental Laws to which it may be subject;


 


(ii)                                obtained all Environmental Licences required or desirable in
connection with its business; and


 


(iii)                            complied with the terms of all such Environmental Licences,


 


in each case where failure to do so would or would be
reasonably likely to have a Material Adverse Effect.


 


(b)                                 There is no Environmental Claim pending or threatened against it,
and to the best of its knowledge and belief there are no past or present acts,
omissions, events or circumstances which could form the basis of any
Environmental Claim against it, which would or would be reasonably likely to
have a Material Adverse Effect.


 


(c)                                 No:


 


(i)                                    property currently or previously owned, leased, occupied or
controlled by it is contaminated with any Hazardous Materials; and


 


(ii)                                discharge, release, leaking, migration or escape of any Hazardous
Materials into the Environment has occurred or is occurring on, under or from
that property,


 


in each case to the best of its knowledge and belief
in circumstances where the same would or would be reasonably likely to have a
Material Adverse Effect.


 


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22.22                 Necessary
Authorisations


 


The Necessary
Authorisations required by it, are in full force and effect, and it is in
compliance with the material provisions of each such Necessary Authorisation
relating to it and, to the best of its knowledge, none of the Necessary
Authorisations relating to it are the subject of any pending or threatened
proceedings or revocation.


 


22.23                 Intellectual
Property


 


(a)                                 The Intellectual Property Rights owned by or licensed to it are all
the material Intellectual Property Rights required by it in order to carry out,
maintain and operate its business, properties and assets, and so far as it is
aware, it does not infringe, in any way any Intellectual Property Rights of any
third party save, in each case, where the failure to own or license the
relevant Intellectual Property Rights or any infringement thereof will not have
a Material Adverse Effect.


 


(b)                                 So far as it is aware, it and each of its Subsidiaries has taken all
reasonable formal and procedural actions (including payment of fees) required
to maintain any registered Intellectual Property Rights owned by it, which are
material in the context of the Group Business or which are required by it (or
such Subsidiary) in order for it (or such Subsidiary) to carry on its (or such
Subsidiary’s) business in all material respects as contemplated in the Agreed
Business Plan, in full force and effect.


 


22.24                 Ownership
of Assets


 


Save to the extent
disposed of without breaching the terms of any of the Finance Documents with
effect from and after the Initial Borrowing Date and save where the contrary
would not have nor would be reasonably likely to have a Material Adverse
Effect, it and each of its Subsidiaries has good title to or valid leases or
licences of or is otherwise entitled to use and permit other members of the
Group to use all assets necessary to conduct the Group Business taken as a
whole as it is conducted at the Initial Borrowing Date.


 


22.25                 Payment
of Taxes


 


(a)                                 There is no tax audit now pending or threatened in writing by any
tax authority that may result in a material tax liability.


 


(b)                                 It:


 


(i)                                   has paid all material taxes imposed upon it or its assets within the
time period allowed therefor without incurring tax penalties or creating any
Lien;


 


(ii)                               is not overdue in the filing of any material tax returns and such
tax returns are accurate and complete in all material respects;


 


(iii)                           has no claims which are being, or are reasonably likely to be,
asserted against it with respect to taxes; and


 


(iv)                              has not entered into an agreement or waiver or been requested to
enter into an agreement or waiver extending any statute of limitations with
respect to any material tax liability,


 


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except to the
extent that the same are being contested in good faith on the basis of
appropriate professional advice and for which adequate reserves have been
established on the books and records of the relevant Obligor.


 


22.26                 Non-U.S.
Pension Plans


 


(a)                                 Any Non-U.S. Pension Plan operated by it for the benefit of any
member of the Group and/or any of its employees is funded substantially in
accordance with the governing provisions of such scheme and all applicable laws
based on the actuarial assumptions used in the most recent valuation of such
Non-U.S. Pension Plan and such Non-U.S. Pension Plan does not have any material
liability in respect of any such plan and there are no circumstances that would
reasonably be likely to give rise to a Material Adverse Effect.


 


(b)                                 It is in compliance in all material respects with all applicable
laws and contracts relating to any Non-U.S. Pension Plan operated by it or in
which it participates except where such failure to comply would not be
reasonably likely to result in a Material Adverse Effect.


 


22.27                 Compliance
with ERISA


 


(a)                                 Part V of Schedule 10 (Plans)
sets out each Plan.


 


(b)                                 Each of the following statements is accurate and true except where
such statement, aggregated with all other such statements, is not reasonably
likely to have a Material Adverse Effect:


 


(i)                                   each Plan (and each related trust, insurance contract or fund, if
any) is in compliance with its terms and with all applicable laws, including
without limitation ERISA and the Code;


 


(ii)                               each Plan (and each related trust, if any) which is intended to be
qualified under Section 401(a) of the Code has received a
determination letter from the Internal Revenue Service to the effect that it
meets the requirements of sections 401(a) and 501(a) of the Code;


 


(iii)                           no Reportable Event has occurred in relation to a Plan during the
five-year period immediately preceding each Advance;


 


(iv)                              no Multiemployer Plan (as defined in Section 4001(a)(3) of
ERISA) is insolvent or in reorganisation;


 


(v)                                  no Plan has an Unfunded Current Liability;


 


(vi)                              no Plan which is subject to Section 412 of the Code or Section 302
of ERISA has an accumulated funding deficiency (within the meaning of such
sections of the Code or ERISA) or during the five-year period immediately
preceding each Advance has applied for or received a waiver of an accumulated
funding deficiency or an extension of any amortisation period, within the
meaning of Section 412 of the Code or Section 303 or 304 of ERISA;


 


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(vii)                          during the five-year period immediately preceding each Advance, all
contributions required to be made with respect to a Plan or Multiemployer Plan
have been timely made or accrued or otherwise properly reserved on its balance
sheet within the time limit therefor;


 


(viii)                      neither it nor any other member of the Group nor any ERISA Affiliate
has incurred during the five-year period immediately preceding the Initial
Borrowing Date any liability (including any indirect, contingent or secondary
liability) to or on account of a Plan or Multiemployer Plan pursuant to Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29),
4971 or 4975 of the Code or is reasonably likely to incur any such liability
under any of the foregoing sections with respect to any Plan or Mutliemployer
Plan;


 


(ix)                             no condition exists which presents a risk to it or any other member
of the Group or any ERISA Affiliate of incurring a liability to or on account
of a Plan or Multiemployer Plan pursuant to the foregoing provisions of ERISA
and the Code;


 


(x)                                 no proceedings instituted to terminate, or appoint a trustee to
administer, any Plan which is subject to Title IV of ERISA are pending;


 


(xi)                             no action, suit, proceeding, hearing, audit or investigation with
respect to the administration, operation or the investment of assets of any
Plan (other than routine claims for benefits) is pending, or, to the best of
its knowledge, reasonably expected or threatened;


 


(xii)                         each group health plan (as defined in Section 607(1) of
ERISA or Section 4980B(g)(2) of the Code) which covers or has covered
employees or former employees of any member of the Group or any ERISA Affiliate
has at all times been operated in compliance with the provisions of Part 6
of subtitle B of Title I of ERISA and Section 4980B of the Code; and


 


(xiii)                     no lien imposed under the Code or ERISA on its assets or the assets
of any other member of the Group or any ERISA Affiliate exists or is reasonably
likely to arise on account of any Plan or Multiemployer Plan.


 


(c)                                 Using actuarial assumptions and computation methods consistent with Part 1
of subtitle E of Title IV of ERISA, the aggregate liabilities of any member of
the Group and any ERISA Affiliate to all Multiemployer Plans in the event of a
complete withdrawal therefrom, as of the close of the most recent fiscal year
of each such Multiemployer Plan ended prior to the date of the most recent
Advance, would not be reasonably expected to result in a Material Adverse
Effect.


 


(d)                                 The Parent and its Subsidiaries do not maintain or contribute to any
employee welfare benefit plan (as defined in Section 3(1) of ERISA)
which provides benefits to retired employees or other former employees (other
than as required by Section 601 of ERISA) or any Plan the obligations with
respect to which is reasonably likely to result in a Material Adverse Effect.


 


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22.28                 Security


 


It is the legal and
beneficial owner of all assets and other property which it purports to charge,
mortgage, pledge, assign or otherwise secure pursuant to each Security Document
and those Security Documents to which it is a party create and give rise to
valid and effective Security having the ranking expressed in those Security
Documents.


 


22.29                 Investment
Company Act


 


In the case of the
Existing Borrower only, neither it nor any of its Subsidiaries is an “investment
company” or a company “controlled” by an “investment company” within the
meaning of the Investment Company Act of 1940.


 


22.30                 Margin
Stock


 


No Advance will be
used to purchase or carry any Margin Stock (as defined in Regulation U of the
Board of Governors of the Federal Reserve System) or to extend credit for the
purpose of purchasing or carrying any Margin Stock.  Neither the making of any Advance nor the use
of the proceeds of it will violate or be inconsistent with the provisions of
Regulation T, U or X of the Board of Governors of the Federal Reserve System.


 


22.31                 Public
Utility Holding Company Act


 


Neither the
Existing Borrower nor any of its Subsidiaries is a “holding company” or a “subsidiary
company” of a “holding company” or an “affiliate” of a “holding company” or of
a “subsidiary company” of a “holding company” within the meaning of the Public
Utility Holding Company Act of 1935.


 


22.32                 Insurance


 


On the Initial
Borrowing Date, each member of the Group is adequately insured for the purposes
of its business with reputable underwriters or insurance companies against such
risks and to such extent as is usual for prudent companies carrying on such a
business (including, but not limited to, loss of earnings, business
interruption and directors’ and officers’ liability).


 


22.33                 Labour
Relations


 


(a)                                 Neither it nor any other member of the Group is engaged in any
unfair labour practice which might, either individually or in aggregate, have a
Material Adverse Effect.


 


(b)                                 There is (i) no unfair labour practice complaint pending
against it or any other member of the Group, or to its knowledge, threatened
against any of them, before the National Labor Relations Board (or any non-U.S.
equivalent of it), and no grievance or arbitration proceeding arising out of or
under any collective bargaining agreement is pending against it or any other
member of the Group or, to its knowledge, threatened against any of them, (ii) no
material strike, labour dispute, slowdown or stoppage pending against it
or any other member of the Group or, to its knowledge, threatened against it or
any other member of the Group, and (iii) no union representation question
with respect to its employees or the employees of any other member of the
Group, except (with respect to any matter specified in this 


 


116

















 


paragraph (b),
either individually or in the aggregate) such as will not have a Material
Adverse Effect.


 


22.34                 Subsidiaries


 


Part VI of
Schedule 10 (Material Subsidiaries)
correctly sets out all the Material Subsidiaries as at the Effective Date.


 


22.35                 Benefits
of Subordination Provisions


 


(a)                                 The subordination provisions contained in the Senior Subordinated
Notes, the New Senior Subordinated Notes and in the other Senior Subordinated
Note Documents and New Senior Subordinated Note Documents are enforceable
against the respective Obligors party thereto and the holders of the Senior
Subordinated Notes and New Senior Subordinated Notes, and all Secured
Obligations are within the definition of “Senior Debt” or “Guarantor Senior
Debt”, as the case may be, included in such subordination provisions.


 


(b)                                 The subordination provisions contained in the Senior Subordinated
Convertible Bonds and in the other Senior Subordinated Convertible Bond
Documents are enforceable against the respective Obligors party thereto and the
holders of the Senior Subordinated Convertible Bonds, and all Secured
Obligations are within the definition of “Senior Debt” or “Guarantor Senior
Debt”, as the case may be, included in such subordination provisions.


 


(c)                                 On and after the execution and delivery thereof, the subordination
provisions contained in any agreement or instrument relating to Permitted
Subordinated Indebtedness will be enforceable against the debtor thereunder and
the holders of such Indebtedness.


 


22.36                 Repetition


 


Each Repeating
Representation is deemed to be made by each Obligor making such Repeating
Representation on the date of this Agreement in relation to itself and its
Subsidiaries and by the Parent in relation to itself and the other members of
the Group by reference to the facts and circumstances then existing on:


 


(a)                                 each Utilisation Date and on the first day of each Interest Period
or, as the case may be, Term; and


 


(b)                                 in the case of any Acceding Guarantor or Borrower on the day
the same becomes (or if earlier, is required to have become) an Acceding
Guarantor or Borrower .


 


23.                               INFORMATION UNDERTAKING


 


Each Obligor hereby
covenants and agrees that on and after the Initial Borrowing Date and until the
aggregate amount of all the Commitments and all Documentary Credits have
terminated and the Secured Obligations, together with interest, fees and all
other obligations incurred hereunder and thereunder (other than indemnity and
other similar obligations that are not then due and payable), are paid in full:


 


117

















 


23.1                        Information Covenants


 


Each Obligor will
maintain, for itself and each of its Subsidiaries, a system of accounting
established and administered in accordance with GAAP, and the Parent will
furnish (or will procure that a member of the Group furnish) to the Agent (with
a sufficient number of copies for each of the Agent and Lenders):


 


(a)                                 Quarterly Financial Statements:  Within
50 days after the close of each of the first three quarterly accounting
periods in each fiscal year of the Parent:


 


(i)                                    the unaudited consolidated quarterly financial statements of the
Group for that quarterly accounting period and for the elapsed portion of the
fiscal year ended with the last day of such quarterly accounting period
including data of the Parent and its Consolidated Subsidiaries compiled by
segment relating to net sales, operating results, operating result margins,
invested capital and return on capital employed, in each case, setting forth
comparative figures for the related periods in the prior fiscal year and the
Projections relating to such quarterly accounting period; and


 


(ii)                                management’s discussion and analysis of the important operational
and financial developments during the fiscal quarter and year-to-date periods,
and in the event the Parent is a Reporting Company under the Securities
Exchange Act, the furnishing of the Parent’s Form 10-Q Report filed with
the SEC for such quarterly accounting period,


 


all of which shall be certified by an Authorised
Representative of the Parent, subject to normal year-end audit adjustments.


 


(b)                                 Annual Financial Statements:  Within
95 days after the close of each fiscal year of the Parent:


 


(i)                                    the audited consolidated financial statements of the Parent and its
Consolidated Subsidiaries as at the end of such fiscal year setting forth
comparative figures for the preceding fiscal year and the projected figures for
such fiscal year as set forth in the respective Projections and certified (with
an unqualified audit report) by PricewaterhouseCoopers, Ernst & Young,
KPMG, Deloitte & Touche or such other independent certified public
accountants of recognised national standing reasonably acceptable to the Agent,
together with a Compliance Certificate of such accounting firm stating that in
the course of its regular audit of the financial statements of the Parent and
its Subsidiaries, which audit was conducted in accordance with generally
accepted auditing standards, such accounting firm obtained no knowledge insofar
as related to accounting matters of any Default or Event of Default which has
occurred and is continuing or, if in the opinion of such accounting firm such a
Default or Event of Default has occurred and is continuing, a statement as to
the nature thereof and including data of the Parent and its Consolidated
Subsidiaries compiled by segment relating to net sales, operating results,
operating result margins, invested capital and return on capital employed; and


 


(ii)                                management’s discussions and analysis of the important operational
and financial developments during such fiscal year, and in the event the Parent
is a 


 


118

















 


Reporting
Company under the Securities Exchange Act, the furnishing of the Parent’s Form 10-K
Report filed with the SEC for such annual accounting periods,


 


all of which shall be certified by an Authorised
Representative of the Parent, subject to normal year-end audit adjustments.


 


(c)                                 Projections:  No later than (i) ten days after
the completion thereof and (ii) 95 days after the close of each
fiscal year for the Parent and its Subsidiaries, updated projections (from the
Projections contained in the Information Memorandum) prepared on a quarterly
basis for the immediately succeeding two fiscal years commencing at the close of
the fiscal year referenced above, all prepared in a manner consistent with the
Projections (prepared for the purposes of the Information Memorandum) and which
in any event shall provide (A) consolidated line items consistent with
those which will be reported in the quarterly financial statements referenced
in paragraph (a) (Quarterly Financial
Statements) and (B) contain information broken down by segment,
by quarter, as is provided in the Projections. 
All Projections delivered pursuant to this paragraph (c) shall
be in form, scope and substance reasonably satisfactory to the Agent acting
reasonably and with at least the same level of detail as provided in the
Information Memorandum.  The Parent shall
further provide to the Agent, promptly upon becoming aware, details of any
material changes in the Projections from time to time.


 


(d)                                 Officer’s Certificates:  At the time of the delivery
of the financial statements provided for in Clauses 23.1(a) (Quarterly Financial Statements) and (b) (Annual Financial Statements) a Compliance
Certificate of an Authorised Representative of the Parent to the effect that,
to the best of such Authorised Representative’s knowledge, no Default or Event
of Default has occurred and is continuing or, if any Default or Event of Default
has occurred and is continuing, specifying the nature and extent thereof, which
certificate shall, in the case of any such financial statements delivered
pursuant to Clauses 23.1(a) (Quarterly
Financial Statements) and (b) (Annual
Financial Statements), set forth the calculations required to
establish whether the Parent was in compliance with the provisions of
Clauses 24 (Financial Condition),
25.2 (Conduct of Business), 25.7 (Additional Security and Further Assurances), 26.2 (Consolidation, Merger, Purchase or Sale of Assets,
etc.), 26.3 (Restricted
Payments), 26.4 (Indebtedness),
26.5 (Advances, Investments and Loans)
and 26.13 (Assets and EBITDA Attributable to
Qualified Obligors)) at the end of such fiscal quarter or year, as
the case may be.


 


(e)                                 Notice of Default or Litigation:  After an officer of any
Obligor obtains knowledge thereof, (i) promptly and in any event within
three Business Days give notice of the occurrence of any event which
constitutes a Default or an Event of Default and (ii) promptly and in any
event within five Business Days give notice of any litigation or governmental
investigation or proceeding pending (A) against the Parent or any of its
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect, (B) with respect to any Indebtedness which is individually in
excess of €15,000,000 (or its equivalent in other currencies) of the Parent or
any of its Subsidiaries or (C) with respect to any Finance Document.


 


(f)                                   Other Reports and Filings:  Promptly, copies of all
other financial information, reports, proxy materials and other information, if
any, which the Parent or any of its 


 


119

















 


Subsidiaries
shall file with the SEC or deliver to holders of its Indebtedness (with an
outstanding principal amount in excess of €25,000,000 (or its equivalent in
other currencies)) pursuant to the terms of the documentation governing such
Indebtedness (or any trustee, agent or other representative therefor).


 


(g)                                New Subsidiaries; Etc:  As soon as practicable and in any event within
50 days after the close of each of the first three fiscal quarters of each
fiscal year of the Parent and within 95 days after the close of each
fiscal year of the Parent:


 


(i)                                   a list showing each Subsidiary of the Parent established, created or
acquired during the respective fiscal quarter or year, and each Subsidiary
which has had any Equity Interests transferred during the respective fiscal
quarter or year (in each case describing in reasonable detail the respective
transfer of Equity Interests), in each case naming the direct owner of all
Equity Interests in such Subsidiary and describing such Equity Interests in
reasonable detail, and certifying that each such Subsidiary, and each Obligor
which owns any Equity Interests therein, has taken all actions, if any,
required pursuant to Clause 25.7 (Additional
Security and Further Assurance) and the relevant Security Documents
and certifying the Parent’s compliance with the provisions of Clause 25.2
(Conduct of Business); and


 


(ii)                               a list of Material Subsidiaries stating that the Subsidiaries so
listed constitute Material Subsidiaries and certifying that such person has
acceded or will in accordance with Clause 25.7 (Additional Security and Further Assurances) accede as a
Guarantor.


 


(h)                                Annual Meetings with Lenders:  At the request of the Agent,
the Parent shall, within 120 days after the close of each fiscal year
(beginning with the fiscal year ending in 2003) of the Parent, hold a meeting,
at a time and place selected by the Parent and acceptable to the Agent, with
all of the Lenders (then available) to review the financial results of the
previous fiscal year and the financial condition of the Parent and its
Subsidiaries and the budgets presented for the current fiscal year of the
Parent and its Subsidiaries.


 


(i)                                   Other Information:  From time to time, such other information or
documents (financial or otherwise) with respect to the Parent or its
Subsidiaries as the Agent (whether acting on its own or at the request of any
Lender) may reasonably request in writing.


 


23.2                       Books, Records and Inspections


 


Each Obligor shall
(and the Parent shall procure that each member of the Group will), at
reasonable times, on reasonable prior notice and to a reasonable extent subject
only to the provision of any confidentiality undertaking required by such
Obligor (acting reasonably), afford (a) at any time before a Default or
Event of Default has occurred, and is continuing, the Agent or any professional
adviser to the Agent or representative of the Agent or (b) at any time
after a Default or Event of Default has occurred or is continuing, any Finance
Party, any professional advisor to such Finance Party, or representative of
such Finance Party (an “Inspecting Party”)
access to, and permit such Inspecting Party to inspect or observe, such part of
the Group Business as is owned or operated by such Obligor and to have access
to books, records, accounts, documents, computer programmes, data or other
information in the 


 


120

















 


possession of or
available to such Obligor or member of the Group and to take such copies as may
be considered appropriate by such Inspecting Party.


 


23.3                        Insurance


 


The Parent shall
(if so requested by the Agent) supply the Agent with copies of all material
insurance policies or certificates of insurance in respect thereof or (in the
absence of the same) such other evidence of the existence of such policies as
may be reasonably acceptable to the Agent and shall, in any event, notify the
Agent of any material changes to its insurance cover made from time to time.


 


23.4                        ERISA


 


(a)                                 As soon as possible and, in any event, within 15 days after the
Parent, any Subsidiary of the Parent or any ERISA Affiliate knows or has reason
to know of the occurrence of any of the following, the Parent will deliver to
the Agent a certificate of the chief financial officer or treasurer of the
Parent setting forth details as to such occurrence and the action, if any, that
the Parent, such Subsidiary or such ERISA Affiliate is required or proposes to
take, together with any notices required or proposed to be given to or filed
with or by the Parent, such Subsidiary, such ERISA Affiliate, the PBGC, a Plan
or Multiemployer Plan participant or the Plan administrator with respect
thereto:


 


(i)                                   that a Reportable Event has occurred;


 


(ii)                               that a contributing sponsor (as defined in Section 4001(a)(13)
of ERISA) of a Plan subject to Title IV of ERISA is subject to the advance
reporting requirement of PBGC Regulation Section 4043.61 (without regard
to subparagraph (b)(1) thereof), and an event described in
subsection .62 (unless such reporting requirement is waived), .63, .64,
..65, .66, .67 or .68 of PBGC Regulation Section 4043 is reasonably
expected to occur with respect to such Plan within the following 30 days;


 


(iii)                           that an accumulated funding deficiency (within the meaning of Section 412
of the Code or Section 302 of ERISA) has been incurred or an application
is reasonably likely to be or has been made to the Secretary of the Treasury
for a waiver or modification of the minimum funding standard (including any
required instalment payments) or an extension of any amortisation period under Section 412
of the Code or Section 303 or 304 of ERISA with respect to a Plan or
Multiemployer Plan;


 


(iv)                             that a contribution required to be made by the Parent or a
Subsidiary or an ERISA Affiliate to a Plan or Multiemployer Plan or Non-U.S.
Pension Plan has not been timely made except where any such failure to make a
timely contribution is not reasonably likely to result in a material liability;


 


(v)                                 that a Plan or Multiemployer Plan has been or is reasonably likely
to be terminated (other than a standard termination pursuant to Section 4041(b) of
ERISA), reorganised, partitioned or declared insolvent under Title IV of ERISA;


 


121

















 


(vi)                             that a Plan or Multiemployer Plan has an Unfunded Current Liability
giving rise to a lien under ERISA or the Code;


 


(vii)                         that proceedings are reasonably likely to be or have been instituted
to terminate or appoint a trustee to administer a Multi Employer Plan;


 


(viii)                     that a proceeding has been instituted pursuant to Section 515
of ERISA to collect a delinquent contribution to a Plan;


 


(ix)                            that the Parent, any Subsidiary of the Parent or any ERISA Affiliate
is reasonably likely to incur a material liability (including any indirect,
contingent, or secondary liability) to or on account of the termination of or
withdrawal from a Plan or Multiemployer Plan or otherwise under Section 4062,
4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with respect to a Plan or
otherwise under Section 401(a)(29), 4971, 4975 or 4980 of the Code or Section 409
or 502(i) or 502(l) of ERISA or with respect to a group health plan
(as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of
the Code) under Section 4980B of the Code; or


 


(x)                                that the Parent or any Subsidiary of the Parent is reasonably likely
to incur a liability that, when aggregated with all other such liabilities,
will exceed $5,000,000 pursuant to any employee welfare benefit plan (as
defined in Section 3(1) of ERISA) that provides benefits to retired
employees or other former employees (other than as required by Section 601
of ERISA) or pursuant to any Plan or Non-U.S. Pension Plan in addition to any
liability existing on the Effective Date pursuant to any such welfare or
pension plan or plans.


 


(b)                                 The Parent will deliver to the Agent copies of any records,
documents or other information that must be furnished to the PBGC with respect
to any Plan pursuant to Section 4010 of ERISA.


 


(c)                                 The Parent will deliver to the Agent a complete copy of the annual
report (Form 5500) of each Plan (including, to the extent required, the
related financial and actuarial statements and opinions and other supporting
statements, certifications, schedules and information) required to be filed
with the Internal Revenue Service.


 


(d)                                 In addition to any certificates or notices delivered to the Agent
pursuant to paragraph (a) above copies of annual reports and any
records, documents or other information required to be furnished to the PBGC or
any other government agency, and any material notices received by the Parent,
any Subsidiary of the Parent or any ERISA Affiliate (i) from any
government agency with respect to any Plan or Non-U.S. Pension Plan or (ii) received
from any government agency or plan administrator or sponsor or trustee with
respect to any Multiemployer Plan, shall be delivered to the Agent no later
than 15 days after the date such notice has been received by the Parent,
such Subsidiary or such ERISA Affiliate, as applicable.


 


23.5                        “Know Your Client Checks”


 


Each Acceding
Guarantor, Acceding Borrower or existing Obligor shall promptly upon the
request of the Agent or any Lender (and in any event within 90 days of
such request) and 


 


122

















 


each Lender shall
promptly upon the request of the Agent supply, or procure the supply of, such
documentation and other evidence as is reasonably requested by the Agent (for
itself or on behalf of any Lender) or any Lender (for itself or on behalf of
any prospective new Lender) in order for the Agent, such Lender or any
prospective new Lender to carry out and be satisfied with the results of all
necessary “know your client” or other checks in relation to the identity of any
person that it is required to carry out in relation to the transactions
contemplated in the Finance Documents.


 


24.                               FINANCIAL CONDITION


 


24.1                        Capital Expenditures


 


(a)                                 The Parent and the Existing Borrower will not permit any of its
Subsidiaries (other than a member of the CEAL Group to which the CEAL Exception
Conditions apply) to, make any Capital Expenditures, except that the Parent and
its Subsidiaries may make Capital Expenditures (which for the purposes of this
Clause 24.1(a) will exclude amounts paid in respect of Capitalised Leases)
(in each fiscal year of the Parent, a “Capital
Expenditure Allowance”) in aggregate not exceeding
for any fiscal year of the Parent (beginning with its fiscal year ended closest
to 31 December 2004) the amount (as adjusted as provided in
paragraph (c)) set forth below opposite such fiscal year:


 




	
  Fiscal Year of Parent

  Ended In

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2004

  	
   

  	
  €

  	
  92,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2005

  	
   

  	
  €

  	
  96,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2006

  	
   

  	
  €

  	
  108,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2007

  	
   

  	
  €

  	
  120,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2008

  	
   

  	
  €

  	
  124,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2009

  	
   

  	
  €

  	
  128,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2010

  	
   

  	
  €

  	
  132,000,000

  	
   

  






 


provided that, in any fiscal year of the Parent, up to
25 per cent. of the unutilised amount of the Capital Expenditure Allowance
for such fiscal year may be carried forward to the following fiscal year and
aggregated with the Capital Expenditure Allowance of that following fiscal
year, such aggregated amount being the Capital Expenditure Allowance for that
following fiscal year.


 


123

















 


(b)                                 In addition to the Capital Expenditures Allowances permitted
pursuant to paragraph (a) above, the Parent and its Subsidiaries may
make additional Capital Expenditures as follows:


 


(i)                                   the reinvestment of proceeds of Recovery Events that are not
required to be applied to prepay the Outstandings pursuant to paragraph (d) (Insurance Claims) of Clause 13.1 (Repayment from Net Proceeds); and


 


(ii)                               the reinvestment of Net Sale Proceeds from asset sales pursuant to
the first proviso to paragraph (b) (Asset
Sale) of Clause 13.1 (Repayment
from Net Proceeds).


 


(c)                                 At the time any €5 Million Permitted Acquisition is consummated, the
respective Capital Expenditure Allowances shall be deemed automatically
adjusted on a prospective basis as follows:


 


(i)                                   for each fiscal year which begins and ends after the date on which a
€5 Million Permitted Acquisition has been consummated, the Capital Expenditure
Allowance for that fiscal year shall be increased by an amount equal to
110 per cent. of the Capital Expenditures actually made by the entity
being acquired pursuant to the respective €5 Million Permitted Acquisition for
the twelve months prior to the date of the consummation of the respective
€5 Million Permitted Acquisition; and


 


(ii)                               for each fiscal year of the Parent during which a €5 Million
Permitted Acquisition is being consummated, the Capital Expenditure Allowance
for that fiscal year shall be increased by an amount equal to the product of (x) the
amount of the increase for a given fiscal year of the Parent beginning and
ending after the date which the respective €5 Million Permitted Acquisition was
consummated as provided in sub-paragraph (i) above and (y) a
fraction the numerator of which is the number of days remaining in the
fiscal year of the Parent during which the respective €5 Million Permitted
Acquisition was consummated and the denominator of which is 365 or 366, as the
case may be.


 


24.2                        Ratios


 


(a)                                  Consolidated Interest Coverage Ratio


 


The Parent and the
Existing Borrower agree that it will not permit the Consolidated Interest
Coverage Ratio for any Test Period, in each case taken as one accounting
period, ended on the last day of a fiscal quarter of the Parent described
below to be less than the amount set forth opposite such fiscal quarter below:


 


124














 




	
  Fiscal Quarter Ended Closest To

  	
   

  	
  Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31 March 2004

  	
   

  	
  2.40:1.00

  	
   

  
	
  30 June 2004

  	
   

  	
  2.40:1.00

  	
   

  
	
  30 September 2004

  	
   

  	
  2.40:1.00

  	
   

  
	
  31 December 2004

  	
   

  	
  2.40:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31 March 2005

  	
   

  	
  2.40:1.00

  	
   

  
	
  30 June 2005

  	
   

  	
  2.45:1.00

  	
   

  
	
  30 September 2005

  	
   

  	
  2.55:1.00

  	
   

  
	
  31 December 2005

  	
   

  	
  2.65:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31 March 2006

  	
   

  	
  2.75:1.00

  	
   

  
	
  30 June 2006

  	
   

  	
  2.90:1.00

  	
   

  
	
  30 September 2006

  	
   

  	
  3.05:1.00

  	
   

  
	
  31 December 2006

  	
   

  	
  3.20:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31 March 2007

  	
   

  	
  3.30:1.00

  	
   

  
	
  30 June 2007

  	
   

  	
  3.35:1.00

  	
   

  
	
  30 September 2007

  	
   

  	
  3.45:1.00

  	
   

  
	
  31 December 2007

  	
   

  	
  3.50:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31 March 2008 and thereafter.

  	
   

  	
  3.50:1.00

  	
   

  






 


(b)           Consolidated Fixed Charge Coverage Ratio


 


The Parent and the
Existing Borrower agree that it will not permit the Consolidated Fixed Charge
Coverage Ratio for any Test Period, in each case taken as one accounting
period, ended on the last day of any fiscal quarter of the Parent
described below to be less than the amount set forth opposite such fiscal
quarter below:


 




	
  Fiscal Quarter Ended Closest To

  	
   

  	
  Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31 March 2004

  	
   

  	
  1.05:1.00

  	
   

  
	
  30 June 2004

  	
   

  	
  1.05:1.00

  	
   

  
	
  30 September 2004

  	
   

  	
  1.05:1.00

  	
   

  
	
  31 December 2004

  	
   

  	
  1.05:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31 March 2005

  	
   

  	
  1.05:1.00

  	
   

  
	
  30 June 2005

  	
   

  	
  1.05:1.00

  	
   

  
	
  30 September 2005

  	
   

  	
  1.05:1.00

  	
   

  
	
  31 December 2005

  	
   

  	
  1.10:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31 March 2006

  	
   

  	
  1.10:1.00

  	
   

  
	
  30 June 2006

  	
   

  	
  1.10:1.00

  	
   

  
	
  30 September 2006

  	
   

  	
  1.15:1.00

  	
   

  
	
  31 December 2006

  	
   

  	
  1.15:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31 March 2007

  	
   

  	
  1.15:1.00

  	
   

  






 


125

















 




	
  Fiscal Quarter Ended Closest To

  	
   

  	
  Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  30 June 2007

  	
   

  	
  1.15:1.00

  	
   

  
	
  30 September 2007

  	
   

  	
  1.15:1.00

  	
   

  
	
  31 December 2007

  	
   

  	
  1.15:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31 March 2008 and thereafter

  	
   

  	
  1.15:1.00

  	
   

  






 


(c)           Maximum Consolidated Leverage Ratio


 


The Parent and the
Existing Borrower agree that it will not permit the Consolidated Leverage Ratio
for any Test Period ended on the last day of any fiscal quarter of the
Parent described below to be greater than the ratio set forth opposite such
period below:


 




	
  Fiscal Quarter Ended Closest To

  	
   

  	
  Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31 December 2003

  	
   

  	
  4.45:1.00

  	
   

  
	
  31 March 2004

  	
   

  	
  4.45:1.00

  	
   

  
	
  30 June 2004

  	
   

  	
  4.45:1.00

  	
   

  
	
  30 September 2004

  	
   

  	
  4.45:1.00

  	
   

  
	
  31 December 2004

  	
   

  	
  4.45:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31 March 2005

  	
   

  	
  4.45:1.00

  	
   

  
	
  30 June 2005

  	
   

  	
  4.35:1.00

  	
   

  
	
  30 September 2005

  	
   

  	
  4.20:1.00

  	
   

  
	
  31 December 2005

  	
   

  	
  4.10:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31 March 2006

  	
   

  	
  4.00:1.00

  	
   

  
	
  30 June 2006

  	
   

  	
  4.00:1.00

  	
   

  
	
  30 September 2006

  	
   

  	
  4.00:1.00

  	
   

  
	
  31 December 2006

  	
   

  	
  4.00:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31 March 2007

  	
   

  	
  4.00.1.00

  	
   

  
	
  30 June 2007

  	
   

  	
  4.00:1.00

  	
   

  
	
  30 September 2007

  	
   

  	
  4.00:1.00

  	
   

  
	
  31 December 2007

  	
   

  	
  4.00:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31 March 2008

  	
   

  	
  4.00:1.00

  	
   

  
	
  30 June 2008

  	
   

  	
  4.00:1.00

  	
   

  
	
  30 September 2008

  	
   

  	
  4.00:1.00

  	
   

  
	
  31 December 2008

  	
   

  	
  4.00:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31 March 2009 and thereafter”

  	
   

  	
  3.50:1.00

  	
   

  






 


126

















 


25.          POSITIVE UNDERTAKINGS


 


25.1        Use of Proceeds


 


Each Borrower will,
and will cause each of its Subsidiaries to, use the proceeds of the
Utilisations for the purposes specified in Clause 2.2 (Purpose).


 


25.2        Conduct of Business


 


The Obligors shall,
and will procure that their respective Subsidiaries will from time to time (directly
or indirectly) engage in the Group Business and reasonable extensions thereof.


 


25.3        Taxes


 


Each Obligor will,
and will procure each of its Subsidiaries to, file all material tax returns on
time and pay and discharge all material taxes and governmental charges payable
by or assessed upon it prior to the date on which the same became overdue and
without causing any Lien to be created, except those that are being contested
in good faith by appropriate proceedings and for which adequate reserves have been
established on the books and records of the relevant Obligor in accordance with
GAAP.


 


25.4        Compliance with Laws


 


Each Obligor will,
and will procure each of its Subsidiaries to, comply with all applicable laws
to which it may be subject, if failure to comply with which would reasonably be
expected to have a Material Adverse Effect.


 


25.5        End of Fiscal Years; Fiscal
Quarters


 


Each Obligor will
ensure that (a) each of its, and each of its Subsidiaries’, fiscal years
(for accounting and SEC disclosure purposes) end on 31 December and (b) itself,
and each of its Subsidiaries, maintain fiscal quarters consistent therewith.


 


25.6        Ranking of Claims


 


Each Obligor shall
ensure that at all times the claims of the Finance Parties against it under the
Finance Documents rank at least pari passu
with the claims of all its unsecured creditors save those whose claims are
preferred by any bankruptcy, insolvency, liquidation or similar laws of general
application.


 


25.7        Additional Security and
Further Assurances


 


(a)           Each Obligor shall, and the Parent shall procure that each member of
the Group shall, at its own expense, promptly take all such action as the Agent
or the Security Trustee may reasonably require for the purpose of perfecting or
protecting any Finance Party’s rights with respect to the Security intended to
be created or evidenced by the Security Documents.


 


127

















 


(b)           The Parent shall procure that:


 


(i)            any Material Subsidiary (other than a member of the CEAL Group to
which the CEAL Exception Conditions apply) which has not entered into a
Security Document over all or substantially all of its assets; or


 


(ii)           any
member of the Group (other than a member of the CEAL Group to which the CEAL
Exception Conditions apply) which owns or acquires an asset the fair market value
of which exceeds €5,000,000 (or its equivalent in other currencies) or which
is, in the opinion of the Agent (acting reasonably) material in the context of
the Group and which is not subject to a first priority security interest in
favour of the Security Trustee,


 


                in each case to
ensure that Clause 25.2 (Conduct of
Business) and Clause 26.13 (Assets
and EBITDA Attributable to Qualified Obligors) are complied with,


 


                shall (unless
prohibited by Law or unless the Agent, acting reasonably, is satisfied that the
costs and time involved in effecting the relevant Lien would be excessive in
comparison with the benefit gained by the Finance Parties as a result of that
security interest being effected), within 30 days after being required to
do so by the Agent, accede as a Guarantor (if not already a Guarantor in
accordance with Clause 27.1 (Accession
of New Guarantors)) and execute such additional Security Documents
in favour of the Security Trustee (in form and substance satisfactory to the
Security Trustee, but containing provisions on substantially the same terms as
any corresponding Security which is then already in place over the relevant
type of asset under the Security Documents) as the Security Trustee may
require.


 


(c)           At any time whilst there is a continuing Event of Default each
Obligor shall execute and deliver to the Security Trustee such additional
Security Documents in such form and in relation to such assets as the Security
Trustee may require.


 


(d)           The Parent shall procure that, following the irrevocable payment and
cancellation in full of the Permitted Receivables Facility in existence as at
the Initial Borrowing Date, each of Buhrman Office Products Nederland BV,
Buhrmann Silver SA and Buhrmann Silver US LLC shall pledge all its receivables
in favour of the Security Trustee in form and substance reasonably satisfactory
to the Agent within 30 days after being required to do so by the Agent.


 


25.8        Stock Pledges in Non-U.S.
Subsidiaries of the Existing Borrower Which Are Not Guarantors


 


(a)           If following a change (the “Deemed
Dividend Rule Change”) in Section 956 of
the Code or the regulations, rules, rulings, notices or other official
pronouncements issued or promulgated thereunder, counsel for the Parent
reasonably acceptable to the Agent does not within 45 days after a request
from the Agent or the Instructing Group deliver evidence, in form, scope and
substance reasonably satisfactory to the Agent, with respect to any Non-U.S.
Subsidiary of the Existing Borrower which has share capital owned directly by
the Existing Borrower or one or more U.S. Subsidiaries of the Existing Borrower
and which has not already had all of its stock pledged pursuant to the relevant
Pledge Agreements that a pledge of 662/3  per cent.
or more of the total combined voting power of all classes of share capital of
such Non-U.S. Subsidiary 


 


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                entitled to vote, would cause the undistributed earnings of such
Non-U.S. Subsidiary as determined for U.S. federal income tax purposes to be
treated as a deemed dividend to such Non-U.S. Subsidiary’s United States
shareholder for U.S. federal income tax purposes, then that portion of such
Non-U.S. Subsidiary’s outstanding share capital not theretofore pledged
pursuant to the relevant Pledge Agreements shall be pledged to the Security
Trustee for the benefit of the Finance Parties pursuant to the Pledge Agreement
set out in paragraph 2 of Section A of Part III of
Schedule 3 (Security Documents)
(or another pledge agreement in substantially similar form, if needed), with
all documents delivered pursuant to this Clause 25.8 to be in form and
substance reasonably satisfactory to the Agent and the Instructing Group.


 


(b)           Notwithstanding anything to the contrary contained above, in the
circumstances otherwise contemplated above, the pledge specified above (so long
as such Non-U.S. Subsidiary does not accede as a Guarantor) shall not be
required if, following a Deemed Dividend Rule Change, the taking of the
action otherwise required above would result in other material negative tax
consequences to the Parent and/or its Subsidiaries, and so long as the Parent
or the Existing Borrower delivers notification to the Agent to such effect
(showing in reasonable detail the material negative tax consequences which
would result therefrom).  It is
understood and agreed that, notwithstanding anything to the contrary contained
above, the restrictions on the percentage of voting stock of Non-U.S.
Subsidiaries required to be pledged shall not apply to (i) any Subsidiaries
of the Parent which are not Non-U.S. Subsidiaries of the Existing Borrower and (ii) any
Non-U.S. Subsidiaries of the Existing Borrower which are Guarantors or are
Subsidiaries of a Non-U.S. Subsidiary of the Existing Borrower which is a
Guarantor.


 


25.9        Necessary Authorisations


 


Each Obligor shall
(and the Parent shall procure that each member of the Group shall) obtain,
comply with and do all that is necessary to maintain in full force and effect
all Necessary Authorisations.


 


25.10      Insurance


 


Each Obligor shall
(and the Parent shall procure that each member of the Group shall) effect and
maintain insurances on and in relation to its business and assets with
reputable underwriters or insurance companies against such risks (including,
but not limited to, loss of earnings, business interruption, directors’ and
officers’ liability cover) and to such extent as is usual for prudent companies
carrying on a business such as that carried on by such member of the Group.


 


25.11      Infringement
of Intellectual Property


 


Each Obligor shall (and the Parent shall procure that each member of the
Group will):


 


(a)           notify the Agent promptly of any infringement or suspected
infringement or any challenge to the validity of any of the present or future
Intellectual Property Rights owned, used or exploited by it which may come to
its notice if the same would be reasonably likely to have a Material Adverse
Effect and take all necessary steps (including, without limitation, the
institution of legal proceedings) to prevent third 


 


129

















 


                                                parties infringing such Intellectual Property Rights to the extent
that failure to do so would be reasonably likely to have a Material Adverse
Effect;


 


(b)                                 take all necessary action to safeguard and maintain its rights,
present and future, in or relating to all Intellectual Property Rights owned,
used or exploited by it to the extent that failure to do so would be reasonably
likely to have a Material Adverse Effect (in each case including, without limitation,
paying all applicable renewal fees, licence fees and other outgoings); and


 


(c)                                 not enter into any licence or other agreement or arrangement in
respect of Intellectual Property Rights other than between members of the Group
and/or on normal arm’s length commercial terms and will comply with all
licences to it of any Intellectual Property Rights in each case to the extent
that failure to do so would be reasonably likely to have a Material Adverse
Effect.


 


25.12                 Interest Rate Protection


 


The Borrowers shall (or shall procure that a member of the Group shall):


 


(a)                                 within 2 months of the Initial Borrowing Date enter into and
maintain interest rate hedging arrangements with Hedge Counterparties to limit
the Group’s exposure to adverse movements in interest rates and/or currency
exchange in relation to the Term Facilities (other than the Incremental Term
Facility);


 


(b)                                 ensure that such arrangements are entered into in the form of
Hedging Agreements or, as the case may be, Other Hedging Agreement in accordance
with the policy set out in the Hedging Letter; and


 


(c)                                 promptly provide the Agent with certified true copies of each such
Hedging Agreement or, as the case may be, Other Hedging Agreement entered into
which are necessary for the Agent to monitor compliance with this
Clause 25.12.


 


25.13                 Non-U.S. Pension Plans


 


The Parent shall ensure that all Non-U.S. Pension plans maintained by or
for the benefit of any member of the Group and/or any of its employees:


 


(a)                                 are maintained and operated in all material respects in accordance
with all applicable laws from time to time except where the failure to do so is
not reasonably likely to result in a Material Adverse Effect; and


 


(b)                                 are funded substantially in accordance with the governing provisions
of such schemes and all laws applicable thereto with any shortfall in funding
advised by actuaries of recognised standing being rectified in accordance with
such governing procedures and applicable laws except where the failure to do so
is not reasonably likely to result in a Material Adverse Effect.


 


25.14                 Regulation U


 


The Parent shall
ensure that on each Utilisation  Date, less
than 25 per cent. of the value (as determined by any reasonable method) of
the assets of the Group taken as a whole will constitute Margin Stock (as
defined in Regulation U referred to below). 
The Parent shall 


 


130

















 


ensure that no
Advance will be used to purchase or carry any Margin Stock and neither the
making of any Advance nor the use of the proceeds of it will violate or be
inconsistent with the provisions of Regulations T, U or X of the Board of
Governors of the Federal Reserve System of the United States.


 


25.15                 Ownership of Subsidiaries


 


(a)                                 Notwithstanding anything to the contrary contained in this
Agreement, (i) the Parent shall at all times own directly or indirectly
(through one or more Wholly-Owned Subsidiaries that are Obligors) 100 per
cent. of the share capital of the Borrowers and (ii) the Borrowers shall
at all times own directly or indirectly (through one or more Wholly-Owned U.S.
Subsidiaries) 100 per cent. of the capital stock of CEXP.


 


(b)                                 The Parent and the Borrowers shall at all times own, directly or
indirectly, 100 per cent. of the share capital or other Equity Interests of
each of their respective Subsidiaries except to the extent:


 


(i)                                   with respect to Non-U.S. Subsidiaries, directors’ qualifying shares
and other nominal amounts of shares required by applicable law to be held by
persons (other than directors) are issued from time to time (so long as the
respective Subsidiary continues to constitute a Wholly-Owned Subsidiary of the
Parent);


 


(ii)                               100 per cent. of the share capital of any such Subsidiary is
sold, transferred or otherwise disposed of pursuant to a transaction permitted
by Clause 26.2 (Consolidation, Merger,
Purchase or Sale of Assets, etc.);


 


(iii)                           less than 100 per cent. of the share capital or other Equity
Interests are acquired in the respective Subsidiary pursuant to a Permitted
Acquisition which meets the criteria specified in the definition of Permitted
Acquisition and Permitted Acquisition Conditions;


 


(iv)                              such Subsidiary is created or established for the purposes of a
joint venture, provided that such Subsidiary must at all times following its
creation or establishment remain a Subsidiary of the Parent or the Borrowers
(as applicable);


 


(v)                                  Equity Interests in a New Subsidiary (or the Subsidiary that is the
direct parent of such New Subsidiary) are transferred or issued to any employee
of, or owner of Equity Interests in, any person acquired by the Parent or any
of its Subsidiaries pursuant to a Permitted Acquisition which meets the
criteria specified in the definition of Permitted Acquisition and Permitted
Acquisition Conditions in connection with such acquisition (a “New Subsidiary”), provided that the entity
in which such Equity Interests are transferred remains a Subsidiary of the
Parent and further provided that that such issue or transfer of Equity
Interests are considered a disposal of assets pursuant to Clause 26.2(c)(ii) and
satisfies all necessary requirements of that clause and for the avoidance of
doubt the Net Sale Proceeds of such transfer or issue will be applied in
accordance with Clause 13.1(b) (Asset Sale).


 


(vi)                              set forth on Schedule 9 (Group
Structure).


 


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(c)                                  One or more Obligors shall at all times directly own 100 per
cent. of the outstanding capital of each Receivables Subsidiary.


 


25.16                 Financial Assistance and Fraudulent Conveyance


 


The Parent will
ensure that all payments and provision of guarantees, security and other
assistance by and between members of the Group have been and will be made in
compliance with applicable local laws and regulations concerning fraudulent
conveyance, financial assistance by a company for the acquisition of or
subscription for its own shares or the shares of its parent or any other
company or concerning the protection of shareholders’ capital.


 


25.17                 Tax Consolidation


 


The Parent will
procure that the Existing Borrower and each of its subsidiaries organised under
the laws of the United States of America shall be included in a group that
files a U.S. federal consolidated income tax return as soon as practicable if
it has not already done so as at the Initial Borrowing Date.


 


26.                               NEGATIVE UNDERTAKINGS


 


26.1                        Liens


 


Each Obligor will
not, and will not permit any of its Subsidiaries (other than a member of the
CEAL Group to which the CEAL Exception Conditions apply) to, create or permit
to exist any Lien upon or with respect to any of its respective property or
assets, whether now owned or hereafter acquired other than the following (Liens
described below are herein referred to as “Permitted
Liens”):


 


(a)                                 inchoate Liens for taxes, assessments or governmental charges or
levies on its property if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in good faith
and by appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books;


 


(b)                                 Liens imposed by law and other similar Liens arising in the ordinary
course of business which (i) secure the payment of obligations not more
than 90 days past due, (ii) are being contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books or (iii) in aggregate are
immaterial;


 


(c)                                 encumbrances or charges against Real Property as are of a nature
generally existing with respect to properties of a similar character and which
do not in any material way affect or interfere with the use thereof in the
business of such Obligor or such Subsidiaries;


 


(d)                                 Liens existing on the date hereof which (i) are described in Part I
of Schedule 10 (Existing Liens)
or (ii) secure Capitalised Lease Obligations described in Part I of
Schedule 10 (Existing Liens),
to the extent consisting of lessors’ rights in property subject to Capitalised
Leases, which Liens may not be renewed, extended or granted to secure refunding
or refinancing Indebtedness, except (x) for renewals, extensions,
refundings or refinancings of Third Party Existing Indebtedness effected
pursuant to Clause 26.4(b) (Indebtedness)
and (y) so long as the principal amount of the 


 


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                Indebtedness
secured is not increased as a result of such renewal, extension, refunding, or
refinancing and the Liens do not extend to property or assets not originally
subject to the Liens securing the respective issue of Third Party Existing
Indebtedness as originally permitted pursuant to this paragraph (d);


 


(e)           Liens
created pursuant to the Finance Documents;


 


(f)            Liens in or upon Receivables Facility Assets sold or otherwise
transferred pursuant to a Permitted Receivables Transaction;


 


(g)           licenses, sublicenses, leases or subleases granted to other persons
in the ordinary course of business not materially interfering with the conduct
of the business of the Parent and its Subsidiaries taken as a whole;


 


(h)           Liens upon assets of the Parent and its Subsidiaries subject to
Capitalised Lease Obligations to the extent permitted by Clause 26.4(c) (Indebtedness), provided
that (i) such Liens only serve to secure the payment of Indebtedness
arising under such Capitalised Lease Obligation and (ii) the Lien
encumbering the asset giving rise to the Capitalised Lease Obligation does not
encumber any other asset (other than proceeds thereof) of the Parent or any
Subsidiary of the Parent;


 


(i)            Liens
placed upon assets used in the ordinary course of business of the Parent or any
of its Subsidiaries (other than any Receivables Subsidiary) (i) at the
time of acquisition thereof by the Parent or any such Subsidiary or within
120 days thereafter in the case of property other than Real Property and (ii) within
180 days after the completion of the construction or substantial
improvements in the case of Real Property, in each case to secure Indebtedness
incurred pursuant to Clause 26.4(c) (Indebtedness)
to pay all or a portion of the purchase price thereof or the cost of the
substantial improvements thereto, provided that,
in all events, the Lien encumbering the assets so acquired does not encumber
any other asset (other than proceeds thereof) of the Parent or such Subsidiary;


 


(j)            Liens arising from precautionary UCC financing statement filings
regarding operating leases entered into by the Parent or any of its
Subsidiaries (other than any Receivables Subsidiary) in the ordinary course of
business;


 


(k)           Liens arising out of conditional sale, title retention, consignment
or similar arrangements for the sale of goods entered into by the Parent or any
of its Subsidiaries in the ordinary course of business in accordance with the
past practices of the Parent and its Subsidiaries prior to the Initial Borrowing
Date;


 


(l)            Liens on assets of any Subsidiary of the Parent acquired as a result
of a Permitted Acquisition and securing only Permitted Acquired Debt of such
Subsidiary;


 


(m)          Liens
which may be deemed to exist as a result of the consummation of one or more
sale-leaseback transactions effected in accordance with the requirements of
paragraphs (c), (q) and (r) of Clause 26.2 (Consolidation, Merger, Purchase or Sale of Assets,
etc.);


 


(n)           Liens arising out of the existence of judgments or awards not constituting
an Event of Default under Clause 28.8 (Execution
or Distress), provided that
no cash or property


 


133

















 


                is
deposited or delivered to secure the respective judgment or award (or any
appeal bond in respect thereof), except as permitted by the following
paragraph (o);


 


(o)           Liens
(other than any Lien imposed by ERISA) (i) incurred or deposits made in
the ordinary course of business in connection with workers’ compensation,
unemployment insurance, old age pensions and other types of social security, (ii) to
secure the performance of tenders, statutory obligations (other than excise
taxes), surety, stay, customs and appeal bonds, statutory bonds, bids, leases,
government contracts, trade contracts, utility payments, performance and return
of money bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money) or (iii) arising by virtue of deposits made in
the ordinary course of business and consistent with past practice to secure the
performance by the Parent and its Subsidiaries of obligations arising under
leases of Real Property, provided that
the aggregate amount of deposits at any time pursuant to sub-paragraph (ii) and
sub-paragraph (iii) shall not exceed €10,000,000 (or its equivalent
in other currencies) in the aggregate;


 


(p)           bankers’
liens, rights of setoff and other similar liens existing solely with respect to
cash and Cash Equivalents on deposit in one or more of the accounts described
below, in each case granted in the ordinary course of business in favour of the
bank or banks with which the accounts are maintained, securing amounts owing to
such bank with respect to cash management and operating account arrangements,
including those involving pooled accounts and netting arrangements; and


 


(q)           Liens
not otherwise permitted by the foregoing clauses (a) through (p) to
the extent attaching to properties and assets (but not Equity Interests in any
person) with an aggregate fair value not in excess of, and securing liabilities
not in excess of, €35,000,000 (or its equivalent other currencies) in the
aggregate at any time outstanding.


 


In connection with
the granting of Liens of the type described in paragraphs (d), (f), (h), (i),
(k), (l), (m) and (q) of this Clause 26.1 by the Parent or any
of its Subsidiaries, the Agent and the Security Trustee shall be authorised, at
the request of the Parent or the Existing Borrower, to take any actions deemed
appropriate by it in connection therewith (including, without limitation, by
executing appropriate lien releases or lien subordination agreements in favour
of the holder or holders of such Liens, in either case solely with respect to
the assets subject to such Liens).


 


26.2        Consolidation,
Merger, Purchase or Sale of Assets, etc.


 


Each Obligor will
not, and will not permit any of its Subsidiaries to enter into any transaction
of merger or consolidation, or convey, sell, lease or otherwise dispose of (or
agree to do any of the foregoing at any future time) all or any part of its property
or assets, or enter into any sale-leaseback transactions, or purchase or
otherwise acquire (in one or a series of related transactions) any part of the
property or assets (other than purchases or other acquisitions of inventory,
materials, equipment and intangible assets in the ordinary course of business)
of any person, except that:


 


(a)           save in respect of any sales, leases or disposals described in
paragraph (c)(iii) below, this Clause 26.2 does not apply to a
member of the CEAL Group to which the CEAL Exception Conditions apply;


 


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(b)           Capital Expenditures by the Parent and its Subsidiaries (other than
any Receivables Subsidiary) shall be permitted to the extent permitted by
Clause 24.1 (Capital Expenditures);


 


(c)           each of the Parent and its Subsidiaries (other than any Receivables
Subsidiary) may:


 


(i)            in
the ordinary course of business, sell, lease or otherwise dispose of any
tangible assets (excluding shares) or rights in relation thereto which, in the
reasonable judgment of such person, is obsolete, worn out or otherwise no
longer used or useful in the conduct of such person’s business;


 


(ii)           so long as no Default or Event of Default then exists or would
result therefrom, sell, lease or otherwise dispose of any other assets (other
than the assets described in sub-paragraph (iii) below), provided
that:


 


(A)          Fair Market Value:  each such sale, lease or disposition shall be
in an arm’s-length transaction and for Fair Market Value;


 


(B)          75% Cash Payment:  excluding asset sales the Fair Market Value
of which, in the aggregate, does not exceed €5,000,000 (or equivalent in other currencies) in any fiscal year of the
Parent, at least 75 per cent. of the consideration for all assets sold,
leased or otherwise disposed of pursuant to this sub-paragraph (ii) shall
be in the form of cash and paid at the time of closing of such sale, lease or
other disposition; and


 


(C)          Cap Net Sale Proceeds:  the aggregate Net Sale Proceeds of all assets
subject to sales or other dispositions pursuant to this sub-paragraph (ii) (for
purposes of this proviso only, excluding asset sales or other dispositions
where the Net Sale Proceeds therefrom are less than €500,000 (or its equivalent
in other currencies)) shall not exceed €50,000,000 (or its equivalent in other
currencies) in aggregate in any fiscal year of the Parent,


 


provided further, that in addition to the above sales,
leases and dispositions, the Parent and its Subsidiaries shall be permitted to
effect one or more additional sales or assets so long as (aa) each such sale
shall be on an arm’s-length transaction and for Fair Market Value, (bb) at
least 90 per cent. of the consideration for all such additional assets
sold shall be in the form of cash paid at the time of closing of the respective
sale and (cc) the aggregate gross sale proceeds of all such additional assets
sold after the Initial Borrowing Date shall not exceed €50,000,000 (or
equivalent in other currencies) in aggregate;


 


(iii)         so long as no Default or Event of Default then exists or would
result therefrom, sell, lease or otherwise dispose of CEAL or all or
substantially all of the assets of the CEAL Group, provided that:


 


(A)          Fair Market Value:  any such sale, lease or disposition shall be
in an arm’s-length transaction and for Fair Market Value;


 


(B)          75% Cash Payment:  at least 75 per cent. of the
consideration for all assets sold, leased or otherwise disposed of pursuant to
this sub-paragraph 


 


135

















 


                (iii) shall be
in the form of cash and paid at the time of closing of such sale, lease or
other disposition; and


 


(C)          Consolidated Leverage Ratio: the Consolidated Leverage Ratio as set out in Clause 24.2(c) (Maximum Consolidated Leverage Ratio)
shall, at the time of such sale, lease and/or disposition be complied with on a
Pro Forma Basis.


 


provided further that no sale-leaseback transactions
shall be permitted to be made pursuant to the foregoing provisions of this
paragraph (c);


 


(d)           Investments
may be made to the extent permitted by Clause 26.5 (Advances, Investments and Loans);


 


(e)           each
of the Parent and its Subsidiaries (other than any Receivables Subsidiary) may
lease (as lessee) real or personal property in the ordinary course of business
(so long as any such lease does not create a Capitalised Lease Obligation
except to the extent permitted by Clause 26.4) (Indebtedness);


 


(f)           each
of the Parent and its Subsidiaries (other than any Receivables Subsidiary) may
make sales or transfers of inventory in the ordinary course of business;


 


(g)          each
of the Parent and its Subsidiaries (other than any Receivables Subsidiary) may
sell or discount, in each case without recourse and in the ordinary course of
business, overdue accounts receivable arising in the ordinary course of
business, but only in connection with the compromise or collection thereof
consistent with customary practice (and not as part of any bulk sale or financing
of receivables);


 


(h)          transfers
of condemned property to the respective governmental authority or agency that
has condemned same (whether by deed in lieu of condemnation or otherwise), and
transfers of properties that have been subject to a casualty to the respective
insurer of such property as part of an insurance settlement, shall be
permitted;


 


(i)           each
of the Parent and its Subsidiaries may license, sublicense or transfer
software, trademarks and other intellectual property which (i) do not
materially interfere with the business of the Parent and its Subsidiaries taken
as a whole and (ii) could not reasonably be expected to have a Material
Adverse Effect;


 


(j)           so
long as no Default or Event of Default exists at the time of the respective
transfer of assets or immediately after giving effect thereto, (i) the
Parent and its Subsidiaries may transfer assets to the Parent or the Existing
Borrower or any Wholly-Owned Subsidiary of either of them which is a Qualified
Obligor at such time, (ii) in the ordinary course of its business and
consistent with past practice, the Parent and its Subsidiaries may transfer
inventory and equipment to Wholly-Owned Subsidiaries of the Parent or the
Existing Borrower which are not Qualified Obligors and which are not inactive
Non-Material Subsidiaries and (iii) any Wholly-Owned Subsidiary of the
Parent or the Existing Borrower which is neither a Guarantor nor an inactive
Non-Material Subsidiary may transfer assets to any other Wholly-Owned
Subsidiary of the Parent which is neither a Guarantor nor an inactive
Non-Material Subsidiary, in each case so long as (x) if the respective
transfer is being made to any Obligor, all actions needed to maintain the
perfection and priority of the security interests, if any, of the


 


136

















 


                Lenders
in the assets so transferred are taken at the time of the respective transfer
and (y) the Parent reasonably determines that the transfer is not
reasonably likely to be adverse to the Lenders in any material respect,
provided always that in all cases, no such transfer shall result in the
reduction in the value of the Security subject to the Security Documents as at
the Initial Borrowing Date and/or would have a Material Adverse Effect;


 


(k)           so
long as no Default or Event of Default exists at the time of the respective
transfer of assets or immediately after giving effect thereto, (i) any
Non-U.S. Subsidiary of the Parent which is a Wholly-Owned Subsidiary of the
Parent may merge with or into the Parent or any other Non-U.S. Subsidiary of
the Parent which is also a Wholly-Owned Subsidiary of the Parent and is a
Qualified Guarantor at such time (so long as (A) in the case of any such
merger with or into the Parent, the Parent is the survivor of such merger and (B) in
the case of any other such merger, the survivor is a Wholly-Owned Subsidiary of
the Parent which is a Qualified Guarantor), (ii) any Wholly-Owned U.S.
Subsidiary of the Parent may be merged into the Existing Borrower (as long as
the Existing Borrower is the surviving corporation of such merger as a
Wholly-Owned Subsidiary of the Parent) or any other Wholly-Owned U.S.
Subsidiary of the Existing Borrower which is a Qualified Guarantor at such time
(so long as the surviving company of such merger remains a Wholly-Owned U.S.
Subsidiary of the Existing Borrower which is a Qualified Guarantor) and (iii) any
Non-Guarantor Subsidiary may merge with or into any other Non-Guarantor
Subsidiary, provided always that in all cases, no such transfer shall result in
the reduction in the value of the Security subject to the Security Documents as
at the Initial Borrowing Date and/or would have a Material Adverse Effect;


 


(l)            in
addition to transfers permitted above, and so long as no Default or Event of
Default exists at the time of the respective transfer or immediately after
giving effect thereto, the Obligors shall be permitted to transfer assets
(other than cash, Cash Equivalents and Equity Interests in any Obligor) to the
Parent or other Subsidiaries of the Parent so long as cash in an amount at
least equal to the Fair Market Value of the assets so transferred is received
by the respective transferor, provided always that in all cases, no such
transfer shall result in the reduction of the value of the Security subject to
the Security Documents as at the Initial Borrowing Date and/or would have a
Material Adverse Effect;


 


(m)          so
long as no Default or Event of Default then exists (and would not exist
immediately after giving effect thereto), the Parent shall be permitted to
purchase Equity Interests in Subsidiaries of the Parent which are not
Wholly-Owned Subsidiaries of the Parent (before giving effect to the respective
purchase) at prices not to exceed the Fair Market Value thereof, provided that, (i) after giving effect to each purchase
pursuant to this paragraph (m), the financial covenants in Clause 24
(Financial Condition) are in
compliance on a Pro Forma Basis and (ii) at the date of the declaration of
each purchase (and if such purchase is consummated within 30 days of such
declaration) pursuant to this paragraph (m), the Existing Borrower shall
have Available Liquidity of at least €50,000,000;


 


(n)           inactive
Non-Material Subsidiaries of a Borrower or the Parent (excluding in any event
the Borrowers) may be liquidated from time to time, so long as the Parent or
such Borrower as the case may be, determines that such liquidation is not reasonably


 


137

















 


               likely
to be adverse in any material respect (including, without limitation, as a
result of any assumption of liabilities) to the Parent or such Borrower;


 


(o)           sales,
contributions and other transfers by the Receivables Sellers of Receivables
Facility Assets to the respective Receivables Subsidiary and sales and other
transfers of Receivables Facility Assets by a Receivables Subsidiary to one or
more purchasers pursuant to the respective Permitted Receivables Facility, and
purchases and acquisitions of Receivables Facility Assets by the Receivables
Subsidiaries, in each case pursuant to the terms of the respective Permitted
Receivables Facility, shall be permitted;


 


(p)           so
long as no Default or Event of Default then exists, and so long as no Default
or Event of Default will exist after giving effect to the respective Permitted
Acquisition, the Parent and its Wholly-Owned Subsidiaries (other than any
Receivables Subsidiary) may from time to time make Permitted Acquisitions, so
long as the requirements contained in the definitions of “Permitted Acquisition”
and “Permitted Acquisition Conditions” are satisfied;


 


(q)           to
the extent the Parent or any of its Subsidiaries acquires (but not pursuant to
a Permitted Acquisition) or constructs any Real Property or acquires (but not
pursuant to a Permitted Acquisition) any equipment, in each case after the
Initial Borrowing Date, then (i) in the case of Real Property, within
180 days of the acquisition thereof (or in the case of Real Property being
constructed or upon which substantial improvements are being made, within
180 days after the completion of such construction or substantial
improvements) and (ii) in the case of equipment, within 120 days of
the acquisition thereof, the Parent or the respective Subsidiary owning same
may sell the respective Real Property or equipment pursuant to a sale-leaseback
transaction so long as (A) there shall exist no Default or Event of
Default (both before and after giving effect thereto), (B) the sale is on
an arm’s-length transaction and for Fair Market Value, (C) at least
75 per cent. of the aggregate consideration therefor shall be in the form
of cash and is paid at the time of consummation of sale and (D) to the
extent Capitalised Lease Obligations result from the respective sale-leaseback,
such Capitalised Lease Obligations shall be permitted pursuant to
Clause 26.4 (Indebtedness);


 


(r)           each of the Parent and its Subsidiaries may enter into any
sale-leaseback transaction:


 


(i)            involving
the Denver Warehouse; or


 


(ii)           which
is not permitted pursuant to paragraph (i) above, provided that at
any time the aggregate value of all property sold and leased back pursuant to
this paragraph (ii) shall not exceed €50,000,000,


 


provided, in
each case, that (A) there shall exist no Default or Event of Default
immediately before giving effect thereto, (B) no Default or Event of
Default would result from giving effect thereto, (C) the sale is on an arm’s-length
transaction and for Fair Market Value, (D) at least 75 per cent. of
the aggregate consideration therefor shall be in the form of cash and is paid
at the time of consummation of sale and (E) to the extent Capitalised
Lease Obligations result from the respective sale-leaseback, such Capitalised
Lease Obligations shall be permitted pursuant to Clause 26.4 (Indebtedness) and (F) all proceeds
raised pursuant to such sale-lease back transaction


 


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are applied in accordance with Clause 13.1(b) (Repayment from Net Proceeds), and provided
further that if the lease of a property sold and leased back pursuant to this
paragraph lapses or terminates for any reason, the value of such property shall
cease to be taken into account for the purposes of paragraph (ii) above
and the sale of such property shall be deemed for the purposes of
Clause 26.2(c)(ii) above to have taken place on the date of the
termination or lapse of such lease, as if such lease had never existed and this
Clause 26.2(r) had never applied;


 


(s)           each
of the Parent and its Subsidiaries may sell or liquidate, in each case for cash
at fair market value (as reasonably determined by the Parent or the respective
Subsidiary), Cash Equivalents;


 


(t)           so
long as no Default or Event of Default is then in existence (or shall exist
after giving effect thereto), the Parent and its Subsidiaries may effect one or
more Sales In Lieu of Liquidation in accordance with the definition thereof
contained herein; and


 


(u)          acquisitions
for value of Senior Subordinated Notes, New Senior Subordinated Notes and
Senior Subordinated Convertible Bonds may be made to the extent permitted by
Clause 26.8(a)(iv) (Limitation on
Voluntary Payments and Modifications of Indebtedness; Modifications of
Certificate of Incorporation, By-Laws and Certain Other Agreements).


 


Notwithstanding
anything to the contrary contained above, in no event shall the Parent or any
of its Subsidiaries (x) sell, transfer or dispose of any Equity Interests
in a Borrower or any Subsidiary of the Parent which owns Equity Interests, in a
Borrower or (y) sell any Equity Interests in any other Subsidiary of the
Parent unless, in the case of this clause (y), the respective sale or
disposition meets the requirements of one or more of the paragraphs of this
Clause 26.2 unless all Equity Interests in the respective Subsidiary owned
by Parent and its Subsidiaries are sold pursuant to the respective sale.  Furthermore, the foregoing provisions of this
Clause 26.2 are subject to continued compliance by the Obligors and their
Subsidiaries with the requirements of Clauses 25.2 (Conduct of Business) and 26.13 (Assets and EBITDA Attributable to Qualified Obligors).  To the extent the Instructing Group waive the
provisions of this Clause 26.2 with respect to the sale of any Collateral,
or any Collateral is sold as permitted by this Clause 26.2, such
Collateral (unless sold to the Parent or a Subsidiary of the Parent) shall be
sold free and clear of the Liens created by the Security Documents, and the
Agent and Security Trustee shall be authorised to take any actions deemed
appropriate in order to effect the foregoing.


 


26.3        Restricted
Payments


 


Each Obligor will not, and will not permit any of its Subsidiaries to
make any Restricted Payment, except that:


 


(a)           any Subsidiary of the Parent may pay Dividends to its shareholders,
in each case so long as the Parent or any Subsidiary of the Parent which owns
an Equity Interest in such Subsidiary either:


 


(i)            receives
a percentage of any such Dividends which is at least equal to its percentage
Equity Interest in the respective Subsidiary paying the Dividend;


 


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(ii)           receives
additional Equity Interests in such Subsidiary in an amount equal to the
Dividends which would have been received by it pursuant to
sub-paragraph (i); provided that (A) after
giving effect to each receipt of additional Equity Interests pursuant to this
sub-paragraph (ii), the financial covenants in Clause 24 (Financial Condition) are in compliance on
a Pro Forma Basis and (B) at the date of receipt of such additional Equity
Interests the Existing Borrower shall have Available Liquidity of at least
€50,000,000; or


 


(iii)         (in
the case only of Dividends whereby such Subsidiary is either redeeming,
retiring, purchasing or otherwise acquiring, directly or indirectly, for a
consideration any shares of any class of its share capital or any partnership
or membership interests outstanding (or any options or warrants issued by such
person with respect to its share capital or other Equity Interests), or setting
aside any funds for any of the foregoing purposes, or is permitting any of its
Subsidiaries to purchase or otherwise acquire for a consideration any shares of
any class of the share capital or any partnership or membership interests of
such person outstanding (or any options or warrants issued by such person with
respect to its share capital or other Equity Interests)), waives its
entitlement to, or otherwise agrees not to receive, such Dividends; provided that (A) after giving effect to the
redemption, retirement, purchase or acquisition of any of such Subsidiary’s
shares the percentage of Equity Interests held by the Parent or any Subsidiary
of the Parent in such Subsidiary increases, (B) after giving effect to
each waiver or agreement not to receive Dividends pursuant to this
sub-paragraph (iii) the financial covenants in Clause 24 (Financial Condition) are in compliance on
a Pro Forma Basis and (C) at the date of such waiver or agreement the
Existing Borrower shall have Available Liquidity of at least €50,000,000;


 


(b)           any
Subsidiary of the Parent (other than the Existing Borrower and its Subsidiaries
if any Default or Event of Default is then in existence) may declare and pay
Dividends or make distributions to the Parent or a Wholly-Owned Subsidiary of
the Parent;


 


(c)           payments
may be made from time to time with respect to Affiliate Debt permitted to be
incurred and remain outstanding in accordance with the terms of this Agreement,
in each case so long as (x) the respective payment is permitted to be made
in accordance with the terms of the Intercreditor Deed and (y) other than
in the case of payments made by any Non-U.S. Subsidiary of the Parent (which is
not also a Subsidiary of the Existing Borrower) to the Parent and payments made
by any person to the Existing Borrower (or to any person which then transmits
such payments to the Existing Borrower or one or more other persons who
immediately transmit such payments to the Existing Borrower), no Default or
Event of Default then exists (both before and after giving effect to the
respective payment);


 


(d)           the
Parent may (i) repurchase the Parent Common Stock and/or options to
purchase the Parent Common Stock held by or (ii) make payments pursuant to
equity appreciation rights agreements to, directors, executive officers,
members of management or employees of the Parent or any of its Subsidiaries
upon the death, disability, retirement or termination of such director,
executive officers, member of management or employee, so long as (A) no
Default or Event of Default then exists or would exist after giving effect
thereto and (B) the aggregate amount of cash expended


 


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                by
the Parent pursuant to this paragraph (d) shall not exceed
€10,000,000 in any fiscal year of the Parent plus the net cash proceeds
of Parent Common Stock sold to directors, executive officers, members of
management or employees of the Parent and its Subsidiaries in such fiscal year;


 


(e)           if
any Parent Preference Shares B are issued after the Initial Borrowing Date in
accordance with the terms of the Parent’s Articles of Association as the terms
of the Parent Preference Shares B thereunder are in effect on the Initial
Borrowing Date or as thereafter amended in a manner no less favorable to the
Lenders, then at any time and from time to time thereafter, so long as no
Default or Event of Default then exists, and so long as no Default or Event of
Default will exist after giving effect to the respective redemption of Parent
Preference Shares B, the Parent may redeem its outstanding Preference Shares B,
at their issue price plus any accrued and unpaid dividends thereon, provided that at the date of the declaration of the
respective redemption of the Parent Preference Shares B (and if such redemption
is consummated within 30 days of such declaration), after giving effect to
the respective redemption, the Existing Borrower shall have Available Liquidity
of at least €50,000,000; and


 


(f)            so
long as no Default or Event of Default then exists, and so long as no Default
or Event of Default will exist after giving effect to the respective payment of
Dividends, the Parent may pay, during the first six months of any fiscal year
of the Parent regularly accruing Dividends based on the Parent’s Consolidated
Net Income for the immediately preceding fiscal year:


 


(i)            with
respect to Parent Preference Shares A (so long as there is no increase to the
number of shares of outstanding Parent Preference Shares A after the Initial
Borrowing Date), in an aggregate amount not to exceed that amount determined in
accordance with the Articles of Association of the Parent (as in effect on the
Initial Borrowing Date or as thereafter amended in a manner no less favorable
to the Lenders) and the resolution of the Executive Board of the Parent
providing for the first issuance of Parent Preference Shares A, it being
understood and agreed that the aggregate amount of Dividends paid in respect of
the Parent Preference Shares A in each fiscal year of the Parent pursuant to
this sub-paragraph (i) shall not exceed €11,200,000 for the fiscal
years ending closest to 31 December 2003 through till 2008, and thereafter
in such amount as calculated in accordance with the Articles of Association of
the Parent (referred to as the “Applicable
Preference Share A Dividend”) provided
that to the extent the aggregate amount of Dividends paid pursuant to this
sub-paragraph (i) are less than the Applicable Preference Share A
Dividend in any fiscal year of the Parent (beginning with fiscal year 2006),
the difference between the amount paid in such fiscal year and the Applicable
Preference Share A Dividend, may be carried forward and used to pay Dividends
in respect of the Parent Preference Shares A in succeeding fiscal years;


 


(ii)           with
respect to Parent Preference Shares B, if any, issued after the Initial
Borrowing Date in accordance with the terms of the Parent’s Articles of
Association as the terms of such Parent Preference Shares B thereunder are in
effect on the Initial Borrowing Date or as thereafter amended in a manner no
less favourable to the Lenders, in amounts determined in accordance with the
Articles of Association of the Parent (as in effect on the Initial Borrowing


 


141

















 


                Date
or as thereafter amended in a manner no less favourable to the Lenders); and


 


(iii)         with
respect to Parent Common Stock, provided that
the aggregate amount of all Dividends paid during any fiscal year of the Parent
pursuant to this sub-paragraph (iii) shall not exceed the aggregate
of (A) 35 per cent. of the Consolidated Net Income Available to
Common (calculated before deducting any non-cash exceptionals accrued during
such period) for the immediately preceding fiscal year and (B) the
Additional Dividend Amount,


 


provided further, that in the case
of each of foregoing sub-paragraphs (i), (ii) and (iii) (including
the provisos thereto), at the date of the declaration of the payment of such
Dividends (and if such payment is made within 30 days of such
declaration), after giving effect to the payment of such Dividends, the
Existing Borrower shall have Available Liquidity of at least €50,000,000.


 


Notwithstanding anything to the contrary contained
above, in the case of Dividends to be paid at any time pursuant to this
paragraph (f), if on the date the payment and amount of the respective
Dividends are announced, so long as the respective announcement is made within
90 days prior to the payment of the respective Dividends, no Default or
Event of Default then exists, and no Default or Event of Default would exist if
Dividends in the respective amount announced (when added to any other amounts
of Dividends announced but not yet paid) were paid on such date (including,
without limitation, pursuant to Clause 24.2(c) (Maximum Consolidated Leverage Ratio) after
giving effect to the incurrence of any Indebtedness needed to finance same) and
so long as the amount of Dividends to be paid complies with the requirements of
this paragraph (f), as the case may be, and so long as the Available
Liquidity requirements sets forth in said paragraphs would be satisfied if the
Dividends so announced (when added to any other amounts of Dividends announced
but not yet paid) were actually paid on the date of the respective announcement
(after giving effect thereto), then the respective Dividends (in the aggregate
amounts so announced) may be paid within 90 days after such announcement,
so long as no Default or Event of Default then exists or would exist after
giving effect to the payment of such Dividends, notwithstanding the failure to
satisfy the Available Liquidity requirements on the date the respective Dividends
are actually paid.


 


The foregoing
provisions of this Clause 26.3 shall in no event restrict or limit the
ability of any Obligor to make payments owing by them pursuant to the terms of
any Finance Document.


 


26.4        Indebtedness


 


Each Obligor will
not, and will not permit any of its Subsidiaries (other than a member of the
CEAL Group to which the CEAL Exception Conditions apply (save in respect of
paragraph (q) below)) to, contract, create, incur, assume or suffer
to exist any Indebtedness, except:


 


(a)           Indebtedness
incurred pursuant to this Agreement and the other Finance Documents;


 


(b)           Existing
Indebtedness outstanding on the Initial Borrowing Date, without giving effect
to any subsequent extension, renewal or refinancing thereof, except that
the


 


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                Third
Party Existing Indebtedness as set out in Section A of Part II of
Schedule 10 (Existing Indebtedness)
may be Refinanced, or successively Refinanced, through one or more issues of
Permitted Refinancing Indebtedness;


 


(c)           Indebtedness
(including, without limitation, Indebtedness of such persons evidenced by
Capitalised Lease Obligations entered into in accordance with the relevant
requirements of Clause 26.8 (Limitation
on Voluntary Payments and Modifications of Indebtedness; Modifications of
Certificate of Incorporation, By-laws and Certain Other Agreements; etc.),
Indebtedness of such persons of the type described in Clause 26.1(i) (Liens), Permitted Acquired Debt and Seller
Debt and such other Indebtedness as is incurred pursuant to this
paragraph (c)) of (i) the Parent, a Borrower and one or more
Qualified Guarantors or (ii) in the case of Permitted Acquired Debt only,
the respective Subsidiary or Subsidiaries acquired pursuant to such Permitted
Acquisition, provided that:


 


(A)          no
Default or Event of Default shall exist at the time of the incurrence of such
Indebtedness and immediately after giving effect thereto; and


 


(B)          the
aggregate principal amount of Indebtedness at any time outstanding pursuant to
this paragraph (c) does not exceed €200,000,000 (or its equivalent in
other currencies), of which no more than €75,000,000 (or its equivalent in
other currencies) shall at any time outstanding constitute Indebtedness other
than Permitted Subordinated Indebtedness, with the balance required at all
times to constitute Permitted Subordinated Indebtedness;


 


(d)           Indebtedness
under non-speculative Other Interest Hedging Agreements;


 


(e)           Indebtedness
of any Guarantor owed to the Parent or any other Subsidiary of the Parent (not
an inactive Material Subsidiary), provided that (i) any
such Indebtedness (unless owed to a Borrower) shall be subordinated as, and to
the extent, required by the last sentence of this Clause 26.4 and (ii) at
the first time that any person other than the Parent or any Subsidiary of the
Parent (not an inactive Material Subsidiary) owns or holds any such
Indebtedness or any person other than a Borrower or (other than in the case of
Indebtedness owed by a Borrower) any Qualified Obligor holds a Lien in respect
of such Indebtedness, the debtor of such Indebtedness shall be deemed to have
incurred at such time Indebtedness not permitted by this paragraph (e);


 


(f)            Indebtedness
of any Subsidiary of the Parent which is not a Guarantor owed to the Parent or
any other Subsidiary of the Parent, provided that (i) any
such Indebtedness owed to any Qualified Obligor shall (except as otherwise
provided in the Intercreditor Deed) be unsubordinated and (ii) at the
first time that any person other than the Parent or any Subsidiary thereof owns
or holds any such Indebtedness or any person (other than a Borrower or any
Qualified Obligor) holds a Lien in respect of such Indebtedness, the respective
debtor shall be deemed to have incurred at such time Indebtedness not permitted
by this paragraph (f);


 


(g)           in
addition to any Indebtedness permitted by paragraph (f) above,
Indebtedness of the Parent or any Wholly-Owned Subsidiary of the Parent to the
Parent or another Wholly-Owned Subsidiary of the Parent constituting the
purchase price in respect of intercompany transfers of assets made in the
ordinary course of business to the extent not constituting Indebtedness for
borrowed money;


 


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(h)           Indebtedness
evidenced by Other Currency/Commodities Hedging Agreements entered into
pursuant to Clause 26.5(e) (Advances,
Investments and Loans);


 


(i)            Indebtedness
of the Parent and its Subsidiaries under performance bonds, documentary credit
obligations to provide security for workers’ compensation claims and bank
overdrafts, in each case incurred in the ordinary course of business, provided that any obligations arising in connection with
such bank overdraft Indebtedness is extinguished within five Business Days;


 


(j)            Indebtedness
incurred by the Parent or any of its Subsidiaries arising from agreements
providing for indemnification related to sales of goods or adjustment of
purchase price or similar obligations in any case incurred in connection with
the disposition of any business, assets or Subsidiary of the Parent;


 


(k)           accounts
payable to vendors for goods and services obtained in the normal course of
business and under customary terms and conditions;


 


(l)            Indebtedness
of the Existing Borrower, and subordinated guarantees thereof by the Parent and
the Guarantors, under the Senior Subordinated Notes, the other Senior
Subordinated Note Documents, the Senior Subordinated Convertible Bonds and the
other Senior Subordinated Convertible Bond Documents in an aggregate principal
amount not to exceed $350,000,000 and €114,819,000 (as (x) increased, as a
result of the issuance of any additional Senior Subordinated Notes to
pay-in-kind any regularly accruing interest on any outstanding Senior
Subordinated Notes (or any Permitted Refinancing Indebtedness, other than the
Senior Subordinated Notes, issued to refinance same) in accordance with the
terms applicable to the Senior Subordinated Notes and (y) reduced by any
repayments of principal thereof except for any such repayments to the extent
made as a result of the issuance of refinancing Senior Subordinated Notes in
accordance with the definition of Senior Subordinated Notes contained herein);


 


(m)          Indebtedness
which may be deemed to exist pursuant to one or more Permitted Receivables
Transactions;


 


(n)           obligations
incurred in the ordinary course of business in respect of (i) bank
overdrafts and with respect to cash management and operating account
arrangements, provided that such arrangements are not the functional equivalent
of extensions of Indebtedness for borrowed money and (ii) amounts owed by
any member of the Group that undertakes intra-group banking or cash management
activities to the Parent or any Subsidiary of the Parent in respect of such
activities;


 


(o)           additional
unsecured Indebtedness of the Parent or the Existing Borrower consisting of (x) unsecured
guarantees by the Parent or the Existing Borrower of obligations (which
guaranteed obligations do not themselves constitute Indebtedness) of one or
more Wholly-Owned Subsidiaries of the respective guarantor that are themselves
Qualified Obligors, and (y) unsecured guarantees by the Parent or the
Existing Borrower of leases pursuant to which one or more Wholly-Owned
Subsidiaries of the respective guarantors that are themselves Qualified
Obligors are the respective lessee;


 


(p)           unsecured
Indebtedness of Subsidiaries of the Parent (which are not Subsidiaries of the
Existing Borrower) incurred from local banks which are supported by one or more


 


144

















 


                Documentary
Credit, provided that Indebtedness shall be
permitted to be incurred, and remain outstanding, pursuant to this
paragraph (p) only to the extent that the aggregate outstanding
principal amount thereof is at all times supported by a Documentary Credit
issued pursuant to this Agreement with a face amount equal to or greater than
the principal amount of the Indebtedness outstanding pursuant to this
paragraph (p);


 


(q)           Indebtedness incurred by the members of the CEAL Group provided
that:


 


(i)            no
Default or Event of Default shall exist at the time of the incurrence of each
Indebtedness and immediately after giving effect thereto;


 


(ii)           the
Parent and its Subsidiaries will be in compliance with Clause 24 (Financial Condition) on a Pro Forma Basis
after giving effect to each incurrence of such Indebtedness; and


 


(iii)         the
ratio of consolidated total net debt to consolidated EBITDA of the CEAL Group
shall not be equal to or greater than 2.00:1.00, both before and after the
incurrence of such Indebtedness; and


 


(r)           Indebtedness
of the Existing Borrower, and subordinated guarantees thereof by the Parent and
the Guarantors, under the New Senior Subordinated Notes, the other New Senior
Subordinated Note Documents, in an aggregate principal amount not to exceed
$150,000,000 (as (x) increased, as a result of the issuance of any
additional New Senior Subordinated Notes to pay-in-kind any regularly accruing
interest on any outstanding New Senior Subordinated Notes (or any Permitted
Refinancing Indebtedness, other than the New Senior Subordinated Notes, issued
to refinance same) in accordance with the terms applicable to the New Senior
Subordinated Notes and (y) reduced by any repayments of principal thereof
except for any such repayments to the extent made as a result of the issuance
of refinancing New Senior Subordinated Notes in accordance with the definition
of New Senior Subordinated Notes contained herein).


 


Notwithstanding
anything to the contrary contained above or elsewhere in this Agreement, (y) in
no event shall the Parent or the Borrowers permit any Subsidiary of the Parent
other than the Existing Borrower or any Qualified Guarantor to incur any
Indebtedness or any other obligation having any element of recourse to any
Obligor or to any of its assets or property and (z) Affiliate Debt
(excluding only Affiliate Debt where each obligee and obligor (including any
guarantors) thereof are Subsidiaries of the Parent none of which are Obligors)
shall only be permitted to be incurred and to remain outstanding if each
obligee and each obligor (including any guarantors) with respect to such
Affiliate Debt shall have become parties to the Intercreditor Deed in
accordance with the terms thereof.


 


26.5        Advances,
Investments and Loans


 


Each Obligor will
not, and will not permit any of its Subsidiaries (other than a member of the
CEAL Group to which the CEAL Exception Conditions apply) to, directly or
indirectly, lend money or credit or make advances to any person, or purchase or
acquire any stock, obligations or securities of, or any other interest in, or
make any capital contribution to, any other person (all of the foregoing, “Investments”), except that the following
shall be permitted:


 


145

















 


(a)           the
Parent and its Subsidiaries may acquire and hold accounts receivables arising
in the ordinary course of business and owing to any of them;


 


(b)           the
Parent and its Subsidiaries may acquire and hold Cash Equivalents, provided
that at any time there are Revolving Facility Outstandings and/or Swingline
Facility Outstandings, the aggregate amount of Cash Equivalents permitted to be
held by Parent and its Subsidiaries shall not exceed €50,000,000 (or its
equivalent in other currencies) for any period of five (5) consecutive Business
Days;


 


(c)           the
Parent and its Subsidiaries may make loans and advances in the ordinary course
of business to their respective employees so long as the aggregate principal
amount thereof at any time outstanding (determined without regard to any
write-downs or write-offs of such loans and advances) shall not exceed
€10,000,000 (or its equivalent in other currencies);


 


(d)           the
Parent and its Subsidiaries may enter into Other Interest Hedging Agreements to
the extent permitted in Clause 26.4(d) (Indebtedness);


 


(e)           the
Parent and its Subsidiaries may enter into and perform their obligations under
Other Currency/Commodity Hedging Agreements entered into in the ordinary course
of business so long as any such Other Currency/Commodity Hedging Agreement is
not speculative in nature and is (i) related to income derived from
foreign sales or operations of the Parent or any Subsidiary or otherwise
related to purchases permitted hereunder from foreign suppliers, (ii) entered
into to protect the Parent and/or its Subsidiaries against fluctuations in the
prices of raw materials used in their businesses or (iii) entered into to
protect the Group’s exposure to adverse movements in foreign exchange in
relation to the Facilities and any Permitted Subordinated Indebtedness;


 


(f)            provision
of Indebtedness may be made as expressly permitted by paragraphs (e) and (f) of
Clause 26.4 (Indebtedness);


 


(g)           the
Parent and its Subsidiaries may (i) sell or transfer assets to the extent
permitted by Clause 26.2 (Consolidation,
Merger, Purchase or Sale of Assets, etc.), and may acquire non-cash
consideration in respect thereof to the extent permitted by Clause 26.2 (Consolidation, Merger, Purchase or Sale of Assets,
etc.) and (ii) repurchase Equity Interests in certain of its
Subsidiaries to the extent expressly permitted pursuant to Clause 26.2(m) (Consolidation, Merger, Purchase or Sale of Assets,
etc.);


 


(h)           the
Parent may effect Permitted Acquisitions in accordance with the requirements of
Clause 26.2(p) (Consolidation,
Merger, Purchase or Sale of Assets, etc.) and an amount equal to the
cash consideration therefor may be contributed, loaned or advanced to, or
invested in, the respective person (which must be the Parent or a Wholly-Owned
Subsidiary thereof) making such Permitted Acquisition by the Parent or any of
its Wholly-Owned Subsidiaries so long as all amounts so invested are in fact
used within ten days of the respective payment to pay such consideration
owing in connection with the respective Permitted Acquisition (or if not so
used, are returned to the Parent or its respective Wholly-Owned Subsidiary at
the end of such five-day period);


 


146

















 


(i)            Investments
consisting of guarantees in existence on the Initial Borrowing Date as
disclosed in Clause 26.4 (Indebtedness)
or arising thereafter as a result of guarantees permitted pursuant to
Clause 26.4 (Indebtedness);


 


(j)            the
Parent and its Subsidiaries may, in the ordinary course of business, acquire
and own investments (including debt obligations) received in connection with
the bankruptcy or reorganisation of, or in settlement of delinquent obligations
of, their suppliers and customers;


 


(k)           in
addition to Investments otherwise permitted above, the Parent and its
Subsidiaries may hold (i) their interests in their respective Subsidiaries
and (ii) Investments as are in effect on the Initial Borrowing Date which
are set out in Part VII of Schedule 10 (Existing Investments);


 


(l)            (i) the
Parent and the Qualified Obligors may make equity contributions to the capital
of Wholly-Owned Subsidiaries of the Parent which are also Qualified Obligors, provided that in the event that any Qualified Obligor in which
an investment is made pursuant to this paragraph (l) ceases to
constitute a Wholly-Owned Subsidiary of the Parent which is a Qualified
Obligor, any remaining Investment therein by the Parent or any of its
Subsidiaries will be required to be independently justified under another
clause of this Clause 26.5 and (ii) Wholly-Owned Subsidiaries may
make equity investments (including, for this purpose, preferred equity
investments) in Non-Guarantor Subsidiaries (A) to the extent all proceeds
of such equity investment are immediately thereafter used by such Non-Guarantor
Subsidiary to repay in cash outstanding Intercompany Loans in a like amount
previously made by a Qualified Obligor (and otherwise permitted hereunder) to
such Non-Guarantor Subsidiary and (B) so long as any Equity Interest
issued as consideration for such equity investment is promptly pledged to the
Security Trustee for the benefit of the Finance Parties to the extent required
by Clause 25.7 (Additional Security and
Further Assurances)  or
any Security Document;


 


(m)          Non-Guarantor
Subsidiaries may make equity contributions to the capital of other
Non-Guarantor Subsidiaries, provided that
in the event that any Non-Guarantor Subsidiary which has received a common
equity contribution pursuant to this paragraph (m) ceases to
constitute a Subsidiary of the Parent, any remaining Investment therein by the
Parent or any of its Subsidiaries will be required to be independently
justified under another clause of this Clause 26.5;


 


(n)           so
long as no Default or Event of Default then exists or would exist after giving
effect thereto, the Parent and its Subsidiaries may make additional Investments
(which remain outstanding on any date of determination) not exceeding in
aggregate €40,000,000 (or its equivalent in other currencies), (and will remain
so after the making of each Investment made pursuant to this proviso) provided
that the acquisition cost attributable to any Investment made pursuant to this
Clause 26.5(n) will not be taken into consideration in calculating
the aggregate Investments under this Clause after the non-recourse disposal of
such Investment;


 


(o)           the
Parent or any Subsidiary of the Parent may make cash common equity
contributions to the capital of its Subsidiary with the cash proceeds of
Dividends received from such Subsidiary, provided that (i) in
the event that any Subsidiary which has received a common equity contribution
pursuant to this paragraph (o)


 


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                ceases to constitute a Subsidiary of the Parent, any remaining
Investment therein by the Parent or any of its Subsidiaries will be required to
be independently justified under another clause of this Clause 26.5, (ii) after
giving effect to each equity contribution pursuant to this paragraph (o),
the financial covenants in Clause 24 (Financial
Condition) are in compliance on a Pro Forma Basis and (iii) at
the date of the equity contribution pursuant to this paragraph (o), the
Existing Borrower shall have Available Liquidity of at least €50,000,000;


 


(p)           the
Parent or any Subsidiary of the Parent may make Investments in Receivables
Subsidiaries pursuant to Permitted Receivables Transactions (provided that,
following such Investments, such Receivables Subsidiaries remain Receivables
Subsidiaries); and


 


(q)           the
Parent or any Subsidiary of the Parent may make Investments in a person that is
not a member of the Group provided that (i) any such Investment is made
pursuant to a Permitted Receivables Transaction for the purposes of the credit
enhancement of such person and (ii) the aggregate amount of all such
Investments made does not at any one time exceed €25,000,000 provided that the
acquisition cost attributable to any Investment made pursuant to this
Clause 26.5(q) will not be taken into consideration in calculating
the aggregate Investments under this Clause after the non-recourse disposal of
such Investment.


 


26.6        Transactions with Affiliates


 


Each Obligor will
not, and will not permit any of its Subsidiaries (other than a member of the
CEAL Group to which the CEAL Exception Conditions apply) to, enter into any
transaction or series of related transactions, with any Affiliate of the Parent
or any of its Subsidiaries, other than in the ordinary course of business and
on terms and conditions substantially as favorable to the Parent or such
Subsidiary as would reasonably be obtained by the Parent or such Subsidiary at
that time in a comparable arm’s-length transaction with a person other than an
Affiliate, except that:


 


(a)           Restricted
Payments may be paid to the extent provided in Clause 26.3 (Restricted Payments);


 


(b)           loans
may be made and other transactions may be entered into between the Parent and
its Subsidiaries to the extent expressly permitted by Clauses 26.2 (Consolidation, Merger, Purchase or Sale of Assets,
etc.), 26.4 (Indebtedness)
and 26.5 (Advances, Investments and Loans);


 


(c)           customary
fees may be paid to directors of the Parent and its Subsidiaries;


 


(d)           the
Parent and its Subsidiaries may enter into employment arrangements with respect
to the procurement of services of their respective officers and employees in
the ordinary course of business, including executive compensation arrangements;


 


(e)           the
Transaction shall be permitted;


 


(f)            the
Parent and its Subsidiaries may enter into the transactions contemplated by the
Permitted Receivables Facility Documentation;


 


(g)           the
Parent and its Subsidiaries may enter into Tax Sharing Agreements; and


 


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(h)           the
Parent may issue Parent Preference Shares B to the Permitted Holder thereof in
accordance with the terms of the Parent’s Articles of Association as the terms
of the Parent Preference Shares B thereunder are in effect on the Initial
Borrowing Date or as thereafter amended in a manner no less favorable to the
Lenders.


 


In addition to the
applicable requirements provided above, any transaction or series of related
transactions (other than as described in sub-paragraphs (a) through (h) above
and excluding transactions between the Parent and/or one or more Wholly-Owned
Subsidiaries of the Parent) between or among the Parent and/or any of its
Subsidiaries (other than the members of the CEAL Group to which the CEAL
Exception Conditions apply), on the one hand, and any of their respective
Affiliates, on the other hand, with a value in excess of (A) €5,000,000
shall only be permitted if a majority of the disinterested directors of the
Parent approve the transaction as meeting the standard set forth above in this
Clause 26.6 and (B) €25,000,000 shall only be permitted if the
parties thereto provide a fairness opinion from a person, and in form, scope
and substance, reasonably satisfactory to the Agent.


 


26.7        Business


 


(a)           The
Obligors will not, and will not permit any of their Subsidiaries to, engage
(directly or indirectly) in any business other than the Group Business and
reasonable extensions thereof, provided that, for a period not extending beyond
the date which occurs one year after the date the respective Permitted
Acquisition is consummated, any Subsidiary of the Parent which was acquired by
the Parent or any of its Wholly-Owned Subsidiaries (other than the Receivables
Subsidiary) pursuant to a Permitted Acquisition shall be permitted to engage in
a business other than the Group Business and reasonable extensions thereof to
the extent so engaged by it immediately prior to such Permitted Acquisition (so
long as such other business was not undertaken in contemplation of the
respective Permitted Acquisition).


 


(b)           The
Parent will cause each Receivables Subsidiary to comply with the requirements
of Clause 26.11 (Receivables Subsidiary
and Permitted Receivables Facility).


 


26.8        Limitation
on Voluntary Payments and Modifications of Indebtedness; Modifications of
Certificate of Incorporation, By-Laws and Certain Other Agreements; etc.


 


(a)           Each Obligor will not, and will not permit any of its Subsidiaries
(other than a member of the CEAL Group to which the CEAL Exception Conditions
apply) to:


 


(i)            amend
or modify, or permit the amendment or modification of, after the incurrence or
issuance thereof, any Permitted Subordinated Indebtedness or Qualified
Preferred Stock, or of any agreement (including, without limitation, any
purchase agreement, indenture, loan agreement or security agreement) relating
thereto other than any amendments or modifications to any Permitted
Subordinated Indebtedness or any Qualified Preferred Stock or of any agreement
relating thereto which do not in any way adversely affect the interests of the
Lenders;


 


(ii)           after
entering into any Senior Subordinated Note Document, New Senior Subordinated
Note Document or Senior Subordinated Convertible Bond Document, amend or
modify, or permit the amendment or modification of, any


 


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                provision
of such Senior Subordinated Note Document, New Senior Subordinated Note
Document or Senior Subordinated Convertible Bond Document (except for
immaterial modifications to the Senior Subordinated Note Documents, New Senior
Subordinated Note Documents or Senior Subordinated Convertible Bond Documents,
which could not be adverse to the interests of the Lenders in any respect, and
which do not modify the subordination provisions applicable thereto);


 


(iii)         after
entering into any Permitted Receivables Transaction, amend or modify, or permit
the amendment or modification of, any provision of the documentation relating
thereto, except for amendments or modifications which are not materially
adverse to the interests of the Lenders or that are determined to be immaterial
by the Agent;


 


(iv)          make
(or give any notice in respect of) any voluntary or optional payment or
prepayment on or redemption or acquisition for value of (including, without
limitation, by way of depositing with the trustee with respect thereto or any
person, money or securities before due for the purpose of paying when due),
exchange or purchase, redeem or acquire for value (whether as a result of a
change of control, the consummation of asset sales or otherwise) the Senior
Subordinated Notes, the New Senior Subordinated Notes (including, for the
avoidance of doubt, any Senior Subordinated Notes or New Senior Subordinated
Notes constituting Permitted Refinancing Indebtedness) and Senior Subordinated
Convertible Bonds (except for repayments, prepayments, redemptions or
acquisitions for value to the extent resulting from (1) the issuance of
replacement Senior Subordinated Notes, New Senior Subordinated Notes and Senior
Subordinated Convertible Bonds and/or (2) the proceeds from the
Incremental Term Facility) or, after the incurrence or issuance thereof, any Permitted
Subordinated Indebtedness;


 


(v)            amend,
modify or change its certificate of incorporation (including, without
limitation, by the filing or modification of any certificate of designation)
articles of association or by-laws (or analogous organisational documents), or
any agreement entered into by it, with respect to its share capital (including
any Shareholders’ Agreement), or enter into any new agreement with respect to
its share capital, other than any amendments, modifications or changes pursuant
to this sub-paragraph (v) or any such new agreements pursuant to this
sub-paragraph (v) which the Parent reasonably concludes do not in any
way adversely affect the interests of the Lenders, provided that nothing in
this sub-paragraph (v) shall prevent the Parent or any of its
Subsidiaries from amending its certificate of incorporation or by-laws to
permit the Parent to issue such share capital as is provided in
Clause 26.9 (Limitation on Issuance of
Share Capital) or to permit the issuance of share capital otherwise
permitted to be issued pursuant to the terms of this Agreement; or


 


(vi)          amend
or modify, or permit the amendment or modification of, the Intercreditor Deed
(except for the addition of parties thereto as contemplated by this Agreement
and the Intercreditor Deed).


 


(b)           Neither
the Parent nor any of its Subsidiaries shall designate any Indebtedness, other
than the Facilities Obligations, as “Designated Senior Debt” for purposes of
the


 


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                Senior
Subordinated Notes, the other Senior Subordinated Note Documents, the New
Senior Subordinated Notes, the other New Senior Subordinated Note Documents,
the Senior Subordinated Convertible Bonds or the other Senior Subordinated
Convertible Bond Documents or, on and after the execution and delivery thereof,
in any agreement relating to Permitted Subordinated Indebtedness and Permitted
Refinancing Indebtedness.


 


26.9        Limitation
on Issuance of Share Capital


 


(a)           The
Parent shall not issue (i) any preferred stock (other than (x) Qualified
Preferred Stock and (y) Parent Preference Shares B in accordance with
the applicable provisions set forth in the Articles of Association of the
Parent to Stichting Preferente Aandelen Buhrmann N.V.) or any options, warrants
or rights to purchase preferred stock or (ii) any redeemable (except at
the option of the Parent) ordinary share capital unless, in either case, all
terms thereof are satisfactory to the Instructing Group in their sole
discretion.


 


(b)           The
Borrowers will not issue, and the Parent and the Borrowers shall not permit any
of their Subsidiaries (other than a member of the CEAL Group to which the CEAL
Exception Conditions apply) to issue, any share capital (including by way of
sales of treasury stock) or any options or warrants to purchase, or securities
convertible into, share capital, except (i) for transfers and replacements
of then outstanding share capital, (ii) for stock splits, stock dividends
and additional issuances which do not decrease the direct or indirect, as the
case may be, percentage ownership of the Parent in any class of the share
capital of the Borrowers or such Subsidiary, (iii) in the case of Non-U.S.
Subsidiaries of the Parent, to qualify directors to the extent required by
applicable law and (iv) Subsidiaries of the Parent formed after the
Initial Borrowing Date may issue share capital to the Parent or the respective
Subsidiary of the Parent which is to own such stock.  All share capital issued in accordance with
this paragraph (b) shall, to the extent required by the Security
Documents, be delivered to the Security Trustee for pledge pursuant to the
Security Documents.


 


26.10      ERISA
Compliance


 


With respect to any
Plan, the Parent shall not, nor shall it permit any of its Subsidiaries (other
than a member of the CEAL Group to which the CEAL Exception Conditions apply)
or ERISA Affiliates to:


 


(a)           engage
in any “prohibited transaction” (as such term is defined in Section 406 of
ERISA or Section 4975 of the Code) for which a civil penalty pursuant to Section 502(i) of
ERISA or a tax pursuant to Section 4975 of the Code may arise;


 


(b)           incur
an “accumulated funding deficiency” (as such term is defined in Section 302
of ERISA), whether or not waived, or permit any Unfunded Current Liability;


 


(c)           permit
the occurrence of any Termination Event;


 


(d)           except
as discussed in Part V of Schedule 10 (Plans), be an “employer” (as such term is defined in Section 3(5) of
ERISA) required to contribute to any Multiemployer Plan or a “substantial
employer” (as such term is defined in Section 4001(a)(2) of ERISA)
required to contribute to any Multiemployer Plan; or


 


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(e)           permit
the establishment or amendment of any plan or fail to comply with the
applicable provisions of ERISA and the Code with respect to any Plan which
could result in liability to the Parent, any Subsidiary of the Parent or any
ERISA Affiliate,


 


in each case which,
individually or in the aggregate, is reasonably likely to result in a Material
Adverse Effect.


 


26.11      Receivables
Subsidiary and Permitted Receivables Facility


 


(a)           After
the establishment thereof, each Receivables Subsidiary shall engage in no
business activities other than the purchase, acquisition, sale and pledge of
receivables (or interest therein) and related Receivables Facility Assets
pursuant to a Permitted Receivables Facility and borrowings thereunder and any
business activities reasonably incidental thereto, all in accordance with the
terms of the Permitted Receivables Facility, and shall have no assets or
liabilities other than Receivables Facility Assets, cash collections therefrom,
any investments of such cash collections and other assets and liabilities
reasonably incidental to the foregoing activities.


 


(b)           The
Parent and its Subsidiaries shall not cause, permit or suffer to exist
(including as a result of actions taken by the respective receivables
purchasers) any termination of a Permitted Receivables Facility on any date
prior to the Final Maturity Date relating to the D Facility, except in the
event the Permitted Receivables Facility is repaid, refinanced or otherwise
replaced in accordance with the terms hereof by a replacement Permitted
Receivables Facility.


 


26.12      Limitation
on Creation of Subsidiaries


 


(a)           Except
as otherwise specifically provided in paragraph (b) below, the Parent
will not, and will not permit any of its Subsidiaries (other than a member of
the CEAL Group to which the CEAL Exception Conditions apply) to, establish,
create or acquire after the Initial Borrowing Date any Subsidiary, provided
that the Parent and its Wholly-Owned Subsidiaries shall be permitted to
establish or create Wholly-Owned Subsidiaries so long as (i) subject to
Clauses 25.7 (Additional Security and
Further Assurances) and 25.8 (Stock
Pledges in Non-U.S. Subsidiaries of the Existing Borrower Which Are Not
Guarantors), the Equity Interests of each such new Wholly-Owned
Subsidiary is pledged pursuant to, and to the extent required by, the
applicable Security Documents and, if such Equity Interests constitute
certificated stock, the certificates representing such Equity Interests,
together with stock or other powers duly executed in blank, are delivered to
the Security Trustee for the benefit of the Finance Parties and (ii) to
the extent such new Wholly-Owned Subsidiary is required, in accordance with the
applicable provisions of Clause 25.7 (Additional
Security and Further Assurances), to become a Guarantor, (A) such
new Wholly-Owned Subsidiary executes and delivers an Accession Notice and, in each
case unless the Agent otherwise agrees based on advice of local counsel, the
Intercreditor Deed and such other Security Documents as would have been entered
into by the respective Subsidiary if same had been an Original Guarantor, and
takes all action in connection therewith as would otherwise have been required
to be taken if such new Wholly-Owned Subsidiary had been an Original Obligor
and (B) such new Wholly-Owned Subsidiary, to the extent requested by an
Agent or the Instructing Group, takes all other actions required pursuant to
Clause 25.7 (Additional Security and
Further Assurances) (including, without limitation, to, at its own
expense, execute,


 


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                acknowledge
and deliver, or cause the execution, acknowledgment and delivery of, and
thereafter register, file or record in any appropriate governmental office, any
document or instrument reasonably deemed by the Security Trustee to be
necessary or desirable for the creation and perfection of the Liens on its
assets intended to be created pursuant to the applicable Security Documents).


 


(b)           In
addition to Subsidiaries of the Parent created pursuant to preceding clause
(a), the Parent and its Subsidiaries may establish, acquire or create, and make
Investments in, Non-Wholly Owned Subsidiaries after the Initial Borrowing Date
as a result of any Permitted Acquisition (subject to the limitations contained
in the definition thereof) and Investments expressly permitted to be made
pursuant to Clause 26.5 (Advances,
Investments and Loans) and permitted under Clause 25.15(b)(iv) (Ownership of Subsidiaries), provided that, and other than in relation to a member of the
CEAL Group to which the CEAL Exception Conditions apply, (i) each such
Non-Wholly Owned Subsidiary shall not have been wholly-owned, directly or
indirectly, immediately prior to the consummation of the respective Permitted
Acquisition, (ii) all Equity Interests in each such Non-Wholly Owned
Subsidiary shall be pledged by the Obligors which own same to the extent
required by the relevant Security Document and (iii) any actions required
to be taken pursuant to Clause 25.7 (Additional
Security and Further Assurances) in connection with the
establishment, acquisition or creation of, or Investments in, the respective
Subsidiaries are taken in accordance with the requirements of said
Clause 25.7 (Additional Security and
Further Assurances). 


 


26.13      Assets and
EBITDA Attributable to Qualified Obligors


 


(a)           Each
Obligor agrees that it shall not permit, for any Test Period ended after the
Initial Borrowing Date, that portion of Consolidated EBITDA for such Test
Period directly attributable to the Qualified Obligors (determined on a Pro
Forma Basis to include any Qualified Obligors which became such, or were acquired,
established or created, after the first day of the respective Test Period) to
be less than 662/3 per cent. of Adjusted Consolidated EBITDA for such Test
Period.  For purposes of all
determinations pursuant to the immediately preceding sentence, the Consolidated
EBITDA directly attributable to the Qualified Obligors shall be that portion of
Consolidated EBITDA directly attributable to, and generated by, the Qualified
Obligors, calculated by excluding all amounts (including without limitation all
amounts representing earnings on investments or intercompany loans made to the
persons hereinafter described, as well as any Consolidated EBITDA directly
attributable to such persons) attributable to any person which is not a
Qualified Obligor.


 


(b)           Each
Obligor agrees that it shall not at any time permit that portion of
Consolidated Tangible Assets directly owned by the Qualified Obligors (and not
by their Subsidiaries or any other person who is not a Qualified Obligor) to be
less than 662/3 per cent. of Adjusted Consolidated Tangible Assets at such
time.


 


26.14      Accounting
Policy


 


The Parent agrees
that it will not adopt any accounting policy or change the consistency of
application of its accounting principles from GAAP (a) unless the revised
policy and practice adopted from time to time is generally accepted in The
Netherlands and/or in accordance with


 


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International
Accounting Standards and (b) provided that prior to any revised policy and
practice being adopted the Parent will notify the Agent thereof and, if
required by the Agent, will either (i) negotiate in good faith with the
Agent in order that the provisions of Clause 24 (Financial Condition) may be amended as may
be necessary to grant to the Lenders protection comparable to that granted on
the Effective Date or (ii) provide either financial statements on the same
basis as before or provide financial statements containing a statement
reconciling the previous and the then current accounting policy in order that
the Agent may determine the financial condition of the Group having regard to
the terms of this Agreement.


 


27.          ACCESSION OF NEW GUARANTORS AND NEW
BORROWERS


 


27.1        Accession
of New Guarantors


 


(a)           The
Parent will procure that from time to time, there is delivered to the Agent in
accordance with Clause 25.7 (Additional
Security and Further Assurances) in respect of a Subsidiary of the
Parent after the Effective Date, an Accession Notice duly executed by itself
and the relevant Subsidiary together with the documents set out in Part II
of Schedule 7 (Accession Documents),
as required by Clause 25.7 (Additional
Security and Further Assurances) and such other documents (including
any new Security Documents) as the Agent may reasonably require, in relation to
such Subsidiary all in form and substance satisfactory to the Agent.


 


(b)           Subject
to compliance with the provisions of Clause 23.5 (Know your
Client checks), the Parent may request that any of its Wholly-Owned
Subsidiaries becomes a Guarantor by duly executing an Accession Notice and
delivering the documents set out in Part II of Schedule 7 (Accession Documents) and such other documents (including any
new Security Documents) as the Agent may reasonably require in relation to such
Subsidiary, all in form and substance satisfactory to the Agent.


 


(c)           Upon
delivery of a duly executed Accession Notice to the Agent, the Subsidiary party
to it, the other Obligors and the Finance Parties, will assume such obligations
towards one another and/or acquire such rights against each other as they would
each have assumed or acquired had such Subsidiary been an original party to
this Agreement as an Original Guarantor, and such Subsidiary shall become a
party to this Agreement as an Acceding Guarantor.


 


27.2        Accession
of New Borrowers


 


(a)           Subject
to compliance with the provisions of Clause 23.5 (“Know your
Client checks”), the Parent may request that any of its Wholly-Owned
Subsidiaries (which is not a Dormant Subsidiary) becomes a Borrower.  Such Subsidiary shall become a Borrower if:


 


(i)            the
opinions delivered with the Accession Notice evidence, in the reasonable
opinion of the Agent, that there will be no adverse effect on the interests of
the Lenders;


 


(ii)           the
Parent and such Subsidiary deliver to the Agent a duly completed and executed
Accession Notice;


 


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(iii)         the
Subsidiary is (or becomes) a Guarantor prior to becoming a Borrower and the
Accession Notice shall to the extent specified therein constitute each acceding
Borrower as an acceding Guarantor;


 


(iv)          the
Parent confirms that no Default is continuing or would occur as a result of
such Subsidiary becoming an Acceding Borrower; and


 


(v)           the
Agent has received all of the documents and other evidence listed in Part 2
of Schedule 7 (Accession Documents)
in relation to such Subsidiary, each in form and substance satisfactory to the
Agent.


 


(b)           The
Agent shall notify the Parent and the Lenders promptly upon being satisfied
that it has received (in form and substance satisfactory to it) all the
documents and other evidence listed in Part II of Schedule 7 (Accession Documents).


 


28.          EVENTS OF DEFAULT


 


Each of
Clause 28.1 (Non-Payment) to Clause 28.15 (Receivables Facility) describes the circumstances which
constitute an Event of Default for the purposes of this Agreement.


 


28.1        Non-Payment


 


An Obligor fails to pay any sum due from it under any Finance Document
at the time, in the currency and in the manner specified in this Agreement:


 


(a)           in
the case of any principal amount of any Utilisation, in such time, currency and
manner as so specified unless its failure to pay is caused by a Disruption
Event and the relevant sum is paid in full within 5 Business Days of the due
date; and


 


(b)           in any other case, in such time, currency and manner as so specified
unless:


 


(i)            its failure to pay is caused by:


 


(A)          administrative
or technical error in the transmission of funds; or


 


(B)          a
Disruption Event; and


 


(ii)           the relevant sum is paid in full:


 


(A)          in
the case of (i)(A) above, 3 Business Days of its due date; or


 


(B)          in
the case of (i)(B) above, 5 Business Days of its due date.


 


28.2        Covenants


 


(a)           An
Obligor fails duly to perform or comply with any provision of Clause 26 (Negative Undertakings) (other than
Clause 26.10 (ERISA Compliance));


 


(b)           The
financial condition of the Group fails to comply with any provision of
Clause 24 (Financial Condition) or any other
requirement of Clause 24 (Financial Condition)
is not satisfied.


 


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28.3        Other
Obligations


 


An Obligor fails
duly to perform or comply with any of the obligations expressed to be assumed
by it in any of the Finance Documents (other than any of those referred to in
Clauses 28.1 (Non-Payment)
and 28.2 (Covenants)) and such failure, if capable
of remedy, is not so remedied within 30
Business Days after written notice to the Parent from the Agent.


 


28.4        Misrepresentation


 


Any representation
or statement made or deemed to have been made by an Obligor in any Finance
Document or in any notice or other document, certificate or statement delivered
by it, pursuant to it or in connection therewith is or proves to have been
incorrect or misleading in any material respect when made or deemed to have been
made.


 


28.5        Cross
Default


 


(a)           Any
Primary Indebtedness of any member of the Group is not paid when due or within
any originally applicable grace period;


 


(b)           Any
Primary Indebtedness of any member of the Group is declared (or is capable of
being declared) to be or otherwise becomes due and payable prior to its
specified maturity as a result of an event of default (however described); or


 


(c)           Any
commitment for any Primary Indebtedness of any member of the Group is cancelled
or suspended by a creditor of any member of the Group as a result of an event
of default (however described).


 


Provided that no
Event of Default will occur under this Clause 28.5 if the aggregate amount
of Primary Indebtedness and/or commitment for Primary Indebtedness falling
within paragraphs (a) to (c) above is less than €15,000,000 (or its equivalent in other
currencies).


 


For the purposes of this Clause 28.5 only, “Primary
Indebtedness” shall mean
each of the items as set out in paragraphs (a), (b), (c), (d), (f) and (g) of
the definition of “Indebtedness”.


 


28.6        Insolvency


 


Any member of the
Group is unable to pay its debts as they fall due, ceases or suspends generally
payment of its debts or announces an intention to do so, or commences
negotiations with, or makes a proposal to do so, any one or more of its
creditors (other than any of the Finance Parties) with a view to the general
readjustment or rescheduling of its Indebtedness or makes a general assignment
for the benefit of or a composition with its creditors or a moratorium is
declared in respect of the Indebtedness of any member of the Group.


 


28.7        Winding-up


 


Any member of the
Group takes any corporate action or other steps are taken or legal proceedings
are started (other than legal proceedings of a frivolous or vexatious nature
which are being contested in good faith and are stayed or discharged within
21 days) for its winding-up, dissolution, administration or
re-organisation or for the appointment of a liquidator, receiver,
administrator, administrative receiver, conservator, custodian, trustee or
similar officer of it or of any or all of its revenues and assets other than in
connection with an amalgamation or re-organisation on a solvent basis.


 


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28.8                        Execution or Distress


 


Any execution,
expropriation, attachment, sequestration or distress is levied against, or an
encumbrancer takes possession of, the whole or any part of, the property,
undertaking or assets of any member of the Group having an aggregate value of
more than €15,000,000 (or its
equivalent in other currencies) and the same is not discharged within 60 days.


 


28.9                        Similar Events


 


Any event occurs
which, under the laws of any jurisdiction, has a similar or analogous effect to
any of those events mentioned in Clause 28.6 (Insolvency),
28.7 (Winding-up) or Clause 28.8 (Execution or Distress).


 


28.10                 Change
of Control


 


(a)                                  After the Initial Borrowing Date, any Borrower ceases to be a
Wholly-Owned Subsidiary of Parent.


 


(b)                                  There is a Change of Control.


 


28.11                 Repudiation


 


Any Obligor
repudiates any of the Finance Documents to which it is party or does or causes
to be done any act or thing evidencing an intention to repudiate any of the
Finance Documents to which it is party.


 


28.12                 Illegality


 


At any time it is
or becomes unlawful for an Obligor to perform or comply with any or all of its
obligations under any of the Finance Documents to which it is party or any of
the obligations of an Obligor under any of the Finance Documents to which it is
party are not or cease to be legal, valid and binding.


 


28.13                 Qualifications
of Financial Statements


 


The auditors
qualify their report on any audited consolidated financial statements of the
Group in any regard which, in the opinion of the Agent acting on the
instructions of an Instructing Group, is material in the context of the Finance
Documents and the transactions contemplated thereby.


 


28.14                 Guarantee


 


The Guarantee or
any provision thereof shall cease to be in full force or effect as to the
relevant Guarantor (unless such Guarantor (other than the Parent) is no longer
a Subsidiary by virtue of a liquidation, sale, merger or consolidation
permitted by Clause 26.2 (Consolidation,
Merger, Purchase or Sale of Assets, etc.)), or any Guarantor or
person acting by or on behalf of such Guarantor shall deny or disaffirm such
Guarantor’s obligations under the Guarantee, or any Guarantor shall default in
the due performance or observance of any term, covenant or agreement on its
part to be performed or observed pursuant to the Guarantee.


 


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28.15                 Receivables
Facility


 


Any default
resulting in an early amortisation event or event permitting any receivables
purchaser or receivables purchasers to effect an early termination of any
Permitted Receivables Facility (or a portion thereof) shall have occurred and
be continuing (after giving effect to any legally valid written waivers of such
events adopted by the relevant receivables purchasers).


 


28.16                 Acceleration


 


Upon the occurrence
of an Event of Default and while the same is continuing at any time thereafter,
the Agent may (and, if so instructed by an Instructing Group, shall) by written
notice to the Existing Borrower:


 


(a)                                 declare all or any part of the Outstandings to be immediately due
and payable (whereupon the same shall become so payable together with accrued
interest thereon and any other sums then owed by any Obligor under the Finance
Documents) or declare all or any part of the Outstandings to be due and payable
on demand of the Agent; and/or


 


(b)                                 require the Borrowers to procure that the Outstanding L/C Amount are
promptly reduced to zero and/or provide cash collateral therefore by deposit in
such interest bearing account as the Agent may specify, in an amount specified
by the Agent and in the currency of such Outstanding L/C Amount (whereupon the
Parent shall do so); and/or


 


(c)                                 declare that any unutilised portion of the Facilities shall be
cancelled, whereupon the same shall be cancelled and the corresponding
Commitments of each Lender shall be reduced to zero; and/or


 


(d)                                 exercise or direct the Security Trustee to exercise any rights and
remedies (including any right to demand cash collateral by deposit in such
interest-bearing account as the Agent may specify).


 


28.17                 Repayment
on Demand


 


If, pursuant to
paragraph (a) of Clause 28.16 (Acceleration),
the Agent declares all or any part of the Outstandings to be due and payable on
demand of the Agent, then, and at any time thereafter, the Agent may (and, if
so instructed by an Instructing Group, shall) by written notice to the Parent:


 


(a)                                 require repayment of all or the relevant part of the Advances on
such date as it may specify in such notice (whereupon the same shall become due
and payable on such date together with accrued interest thereon and any other
sums then owed by any Obligor under the Finance Documents) or withdraw its
declaration with effect from such date as it may specify in such notice; and/or


 


(b)                                 select as the duration of any Interest Period or Term which begins
whilst such declaration remains in effect a period of 3 months or less.


 


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28.18                 Sharing
Events: Special Sharing and Conversion Provisions Applicable to Revolving
Facility Lenders


 


(a)                                  On the date of the occurrence of a Sharing Event, automatically (and
without the taking of any action):


 


(i)                                    all then Revolving Facility Outstandings then maintained in, and all
Outstanding L/C Amounts owed in, one or more currencies other than euros shall
be automatically converted into Outstandings maintained in, or owing in, euros
(in an amount equal to the Euro Amount of the aggregate principal amount of the
respective Outstandings on the date such Sharing Event first occurred, which
such Outstandings shall continue to be owed by the Borrowers and shall be
immediately due and payable on the date such Sharing Event has occurred); and


 


(ii)                                all principal, accrued and unpaid interest and other amounts owing
with respect to such Outstandings or Documentary Credit (except in respect of
Utilisations which have not yet occurred) shall be immediately due and payable
in euros, taking the Euro Amount of such principal, accrued and unpaid interest
and other amounts.


 


The occurrence of any conversion of Revolving Facility
Advances as provided above in this Clause 28.18 shall be deemed to
constitute, for purposes of Clause 33.2 (Break
Costs), a prepayment of the respective Revolving Facility
Outstandings before the last day of any Term relating thereto.


 


(b)                                  Upon the occurrence of a Sharing Event, automatically (and without
the taking of any action):


 


(i)                                    all then Swingline Facility Outstandings then maintained in one or
more currencies other than euros shall be automatically converted into
Swingline Facility Outstandings maintained in euros (in an amount equal to the
Euro Amount of the aggregate principal amount of the respective Swingline
Facility Outstandings on the date such Sharing Event first occurred, which such
Outstandings shall continue to be owed by the Borrowers and shall be immediately
due and payable on the date such Sharing Event has occurred); and


 


(ii)                                all accrued and unpaid interest and other amounts owing with respect
to such Outstandings shall be immediately due and payable in euros, taking the
Euro Amount of such accrued and unpaid interest and other amounts.


 


(c)                                  Upon the occurrence of a Sharing Event, each Revolving Facility
Lender shall (and hereby unconditionally and irrevocably agrees to) purchase
and sell (in each case in euro) undivided participating interests in the Revolving
Facility Outstandings and Outstanding L/C Amounts, in such amounts so that each
Revolving Facility Lender shall have a share of each such Outstandings equal to
its Proportion of the Revolving Facility prior to the incurrence of such
Outstandings.


 


Upon any such occurrence the Agent shall notify each
Revolving Facility Lender and shall specify the amount of euros required from
such Revolving Facility Lender in 


 


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order to effect such purchases and sales in the
amounts required above (together with accrued interest with respect to the
period for the last interest payment date through the date of the Sharing Event
plus any additional amounts payable by the Borrowers pursuant to
Clause 18 (Taxes) in respect
of such accrued but unpaid interest), provided that,
in the event that a Sharing Event shall have occurred, each such Revolving
Facility Lender shall be deemed to have purchased, automatically and without
request, such participating interests (and, as a result thereof, shall be
entitled to receive from, or shall owe to, the other Revolving Facility Lenders
the respective amounts owing as a result of the purchases and sales of
participations contemplated herein). 
Promptly upon receipt of such request, each Revolving Facility Lender
shall deliver to the Agent (in immediately available funds in euros) the net
amounts as specified by the Agent.  The
Agent shall promptly deliver the amounts so received to the various Lenders in
such amounts as are needed to effect the purchases and sales of participations
as provided above.  Promptly following
receipt thereof, each Revolving Facility Lender which has sold participations
in any of its Revolving Facility Outstandings and Outstanding L/C Amounts
(through the Agent) will deliver to each Revolving Facility Lender (through the
Agent) which has so purchased a participating interest a participation
certificate dated the date of receipt of such funds and in such amount.  It is understood that the amount of funds delivered
by each Revolving Facility Lender shall be calculated on a net basis, giving
effect to both the sales and purchases of participations by the various
Revolving Facility Lenders as required above.


 


(d)                                  Upon, and after, the occurrence of a Sharing Event:


 


(i)                                    no further Utilisations shall be made or occur;


 


(ii)                                all amounts from time to time accruing with respect to, and all
amounts from time to time payable on account of, the Revolving Facility
Advances and Swingline Facility Outstandings (including, without limitation,
any interest and other amounts which were accrued but unpaid on the date of
such purchase) shall be payable in euros as if each such Outstandings had
originally been made in euros and shall be distributed by the relevant
Revolving Facility Lenders (or their Affiliates) to the Agent for the account
of the Revolving Facility Lenders which made available such Facilities or are
participating therein; and


 


(iii)                            the Revolving Facility Commitments shall be automatically
terminated.


 


Notwithstanding anything to the contrary contained
above, the failure of any Revolving Facility Lender to purchase its
participating interest as required above in any extensions of credit upon the
occurrence of a Sharing Event shall not relieve any other Revolving Facility
Lender of its obligation hereunder to purchase its participating interests in a
timely manner, but no Revolving Facility Lender shall be responsible for the
failure of any other Revolving Facility Lender to purchase the participating
interest to be purchased by such other Revolving Facility Lender on any date.


 


(e)                                  If any amount required to be paid by any Revolving Facility Lender
pursuant to paragraph (c) above is not paid to the Agent on the date
upon which such Revolving Facility Lender receives notice from the Agent of the
amount of its participations 


 


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required to be
purchased pursuant to paragraph (c) above, such Revolving Facility
Lender shall also pay to the Agent on demand an amount equal to the product of (i) the
amount so required to be paid by such Revolving Facility Lender for the
purchase of its participations, (ii) the daily average rate which the
Agent is offering overnight deposits in euro, during the period from and
including the date of request for payment to the date on which such payment is
immediately available to the Agent and (iii) a fraction the numerator of
which is the number of days that elapsed during such period and the
denominator of which is 360.  If any such
amount required to be paid by any Revolving Facility Lender pursuant to
paragraph (c) is not in fact made available to the Agent within two
Business Days following the date upon which such Revolving Facility Lender
receives notice from the Agent as to the amount of participations required to
be purchased by it, the Agent shall be entitled to recover from such Revolving
Facility Lender on demand, such amount with interest thereon calculated from
such request date at the rate per annum applicable to Revolving Facility Advances.  A certificate of the Agent submitted to any
Revolving Facility Lender with respect to any amounts payable under this
Clause 28.18 shall be conclusive in the absence of manifest error.  Amounts payable by any Revolving Facility
Lender pursuant to this Clause 28.18 shall be paid to the Agent for the
account of the relevant Revolving Facility Lenders, provided
that, if the Agent (in its sole discretion) has elected to fund on behalf of
such Revolving Facility Lender the amounts owing to such Revolving Facility
Lenders, then the amounts shall be paid to the Agent for its own account.


 


(f)                                   Whenever, at any time after the relevant Revolving Facility Lenders
have received from any Revolving Facility Lenders purchases of participations
pursuant to this Clause 28.18, the various Revolving Facility Lenders
receive any payment on account thereof, such Revolving Facility Lenders will
distribute to the Agent, for the account of the various Revolving Facility
Lenders participating therein, such Revolving Facility Lenders’ participating
interests in such amounts (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such participations were
outstanding) in like funds as received, provided, however, that in the event that such payment received by any
Revolving Facility Lenders is required to be returned, the Revolving Facility
Lenders who received previous distributions in respect of their participating
interests therein will return to the respective Revolving Facility Lenders any
portion thereof previously so distributed to them in like funds as such payment
is required to be returned by the respective Revolving Facility Lenders.


 


(g)                                Each Revolving Facility Lender’s obligation to purchase
participating interests pursuant to this Clause 28.18 shall be absolute
and unconditional and shall not be affected by any circumstance including,
without limitation, (i) any set-off, counterclaim, recoupment, defense or
other right which such Revolving Facility Lender may have against any other
Revolving Facility Lender, the Parent, the Borrowers or any other person for
any reason whatsoever, (ii) the occurrence or continuance of an Event of
Default, (iii) any adverse change in the condition (financial or
otherwise) of the Parent, the Borrowers or any other person, (iv) any
breach of this Agreement by the Parent, the Borrowers or any Lender or any
other person, or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.


 


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(h)                                Notwithstanding anything to the contrary contained elsewhere in this
Agreement, upon any purchase of participations as required above, each
Revolving Facility Lender which has purchased such participations shall be entitled
to receive from the applicable Borrower any increased costs and indemnities
(including, without limitation, pursuant to Clauses 33 (Borrower’s Indemnities), 19 (Increased Costs) and 18 (Taxes)) directly from that Borrower to the
same extent as if it were the direct Lender as opposed to a participant
therein.  The Borrowers acknowledge and
agree that, upon the occurrence of a Sharing Event and after giving effect to
the requirements of this Clause 28.18, increased taxes may be owing by it
pursuant to Clause 18 (Taxes),
which taxes shall be paid (to the extent provided in Clause 18 (Taxes)) by the relevant Borrower, without
any claim that the increased taxes are not payable because same resulted from
the participations effected as otherwise required by this Clause 28.18.


 


29.                               DEFAULT INTEREST


 


29.1                        Consequences of Non-Payment


 


If any sum due and
payable by an Obligor under this Agreement is not paid on the due date therefor
in accordance with the provisions of Clause 35 (Payments)
or if any sum due and payable by an Obligor pursuant to a judgment of any court
in connection with this Agreement is not paid on the date of such judgment, the
period beginning on such due date or, as the case may be, the date of such
judgment and ending on the Business Day which the obligation of such Obligor to
pay the Unpaid Sum is discharged shall be divided into successive periods, each
of which (other than the first) shall start on the last day of the
preceding such period (which shall be a Business Day) and the duration of each
of which shall (except as otherwise provided in this Clause 29) be
selected by the Agent.


 


29.2                        Default Rate


 


During each such
period relating thereto as is mentioned in Clause 29.1 (Consequences of Non-Payment) an Unpaid Sum shall bear
interest at the rate per annum which is the sum from time to time of 2 per
cent., the Applicable Margin (provided that if any Unpaid Sum is not directly
referable to a particular Facility the Applicable Margin shall be the D Facilities Margin), the Associated
Costs Rate at such time and the Relevant Interbank Rate, on the Quotation Date
therefor, provided that:


 


(a)                                 if, for any such period, the Relevant Interbank Rate, cannot be
determined, the rate of interest applicable to each Lender’s portion of such
Unpaid Sum shall be the rate per annum which is the sum of 2 per cent.,
the Applicable Margin, and the Associated Costs Rate at such time and the rate
per annum shall be that notified to the Agent by such Lender as soon as
practicable after the beginning of such period as being that which expresses as
a percentage rate per annum the cost to such Lender of funding from whatever
sources it may select its portion of such Unpaid Sum during such period; and


 


(b)                                 if such Unpaid Sum is all or part of an Advance which became due and
payable on a day other than the last day of an Interest Period or
Term relating thereto, the first Interest Period applicable to it shall be of a
duration equal to the unexpired portion of that Interest Period or Term and the
rate of interest applicable thereto from time to 


 


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time during
such Interest Period shall be that which exceeds by 2 per cent. the rate
which would have been applicable to it had it not so fallen due.


 


29.3                        Maturity of Default Interest


 


Any interest which
shall have accrued under Clause 29.2 (Default Rate)
in respect of an Unpaid Sum shall be due and payable and shall be paid by the
Obligor owing such sum at the end of the period by reference to which it is
calculated or on such other dates as the Agent may specify by written notice to
such Obligor.


 


29.4                        Construction of Unpaid Sum


 


Any Unpaid Sum
shall (for the purposes of this Clause 29 (Default
Interest), Clause 19 (Increased Costs),
Clause 33 (Borrower’s Indemnities) and Schedule 6
(Associated Costs Rate)) be treated as an
advance and accordingly in those provisions the term “Advance” includes any
Unpaid Sum and the term “Interest Period” and “Term”, in relation to an Unpaid
Sum, includes each such period relating thereto as is mentioned in
Clause 29.1 (Consequences of Non-Payment).


 


30.                               GUARANTEE AND INDEMNITY


 


30.1                        Guarantee


 


Each Guarantor
irrevocably and unconditionally guarantees, jointly and severally, to each of
the Finance Parties the due and punctual payment by the Borrowers of all sums
payable under each of the Finance Documents and agrees that promptly on demand
it will pay to the Agent each and every sum of money which the Borrowers are at
any time liable to pay to any Finance Party under or pursuant to any Finance Document
which is due but unpaid.


 


30.2                        Indemnity


 


Each Guarantor
irrevocably and unconditionally agrees, jointly and severally, as primary
obligor and not only as surety, to indemnify and hold harmless each Finance
Party on demand by the Agent from and against any loss incurred by such Finance
Party as a result of any of the obligations of the Borrowers under or pursuant
to any Finance Document being or becoming void, voidable, unenforceable or
ineffective as against the Borrowers for any reason whatsoever (whether or not
known to that Finance Party or any other person) the amount of such loss being
the amount which the Finance Party suffering it would otherwise have been
entitled to recover from the Borrowers


 


30.3                        Continuing and Independent Obligations


 


The obligations of
each Guarantor under this Agreement shall constitute and be continuing
obligations which shall not be released or discharged by any intermediate
payment or settlement of all or any of the obligations of the Borrowers under
the Finance Documents, shall continue in full force and effect until the
unconditional and irrevocable payment and discharge in full of all amounts
owing by the Borrowers under each of the Finance Documents and are in addition
to and independent of, and shall not prejudice or merge with, any other
security (or right of set-off) which any Finance Party may at any time hold in
respect of such obligations or any of them.


 


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30.4                        New Accounts


 


If the Agent makes
demand of the Guarantors or any of them pursuant to this Clause 30:


 


(a)                                 the Agent may open a new account or accounts in respect of the
liabilities of the Borrowers to which this guarantee relates or any of them
(and if it does not do so it shall be treated as if it had done so at the time
it made such demand); and


 


(b)                                 thereafter any amounts paid by the Borrowers (or any other person)
to the Agent in respect of the liabilities of the Borrowers under any of the
Finance Documents shall be credited (or be treated as having been credited) to
a new account and not as having been applied in or towards payment of such
liabilities or any of them.


 


30.5                        Avoidance of Payments


 


Where any release,
discharge or other arrangement in respect of any obligation of the Borrowers,
or any Security any Finance Party may hold therefor, is given or made in
reliance on any payment or other disposition which is avoided or must be repaid
(whether in whole or in part) in an insolvency, liquidation or otherwise and
whether or not any Finance Party has conceded or compromised any claim that any
such payment or other disposition will or should be avoided or repaid (in whole
or in part), the provisions of this Clause 30 shall continue as if such
release, discharge or other arrangement had not been given or made.


 


30.6                        Immediate Recourse


 


None of the Finance
Parties shall be obliged, before exercising or enforcing any of the rights
conferred upon them in respect of the Guarantors by this Agreement or by Law,
to seek to recover amounts due from the Borrowers or to exercise or enforce any
other rights or Security any of them may have or hold in respect of any of the
obligations of the Borrowers under any of the Finance Documents.


 


30.7                        Waiver of Defences


 


Neither the
obligations of the Guarantors contained in this Agreement nor the rights,
powers and remedies conferred on the Finance Parties in respect of the
Guarantors by this Agreement or by Law shall be discharged, impaired or
otherwise affected by:


 


(a)                                 the winding-up, dissolution, administration or re-organisation of
the Borrowers or any other person or any change in the status, function,
control or ownership of the Borrowers or any such person;


 


(b)                                 any of the obligations of the Borrowers or any other person under
any Finance Document or any security held by any Finance Party therefor being
or becoming illegal, invalid, unenforceable or ineffective in any respect;


 


(c)                                 any time or other indulgence being granted to or agreed (i) to
or with the Borrowers or any other person in respect of its obligations or (ii) in
respect of any security granted under any Finance Documents;


 


(d)                                 any amendment to, or any variation, waiver or release of, any
obligation of, or any security granted by, the Borrowers or any other person
under any Finance Document;


 


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(e)                                 any total or partial failure to take, or perfect, any security
proposed to be taken in respect of the obligations of the Borrowers or any
other person under the Finance Documents;


 


(f)                                   any total or partial failure to realise the value of, or any
release, discharge, exchange or substitution of, any security held by any
Finance Party in respect of the Borrowers’ obligations under any Finance
Document; or


 


(g)                                any other act, event or omission which might operate to discharge,
impair or otherwise affect any of the obligations of any of the Guarantors
under this Agreement or any of the rights, powers or remedies conferred upon
the Finance Parties or any of them by this Agreement or by Law.


 


30.8                        No Competition


 


Any rights which
any Guarantor may at any time have by way of contribution or indemnity in
relation to any of the obligations of the Borrowers under any of the Finance
Documents or to claim or prove as a creditor of the Borrowers or any other
person or its estate in competition with the Finance Parties or any of them,
shall be exercised by such Guarantor only if and to the extent that the Agent
so requires and in such manner and upon such terms as the Agent may specify and
each Guarantor shall hold any moneys, rights or Security held or received by it
as a result of the exercise of any such rights on trust for the Agent for
application in or towards payment of any sums at any time owed by the Borrowers
under any of the Finance Documents as if such moneys, rights or Security were
held or received by the Agent under this Agreement.


 


30.9                        Appropriation


 


No Finance Party
shall be obliged to apply any sums held or received by it in respect of the
obligations of the Borrowers under any of the Finance Documents in or towards
payment of amounts owing under any of the Finance Documents, and any such sum
may, in the relevant Finance Party’s discretion, be credited to a suspense or
impersonal account and held in such account pending the application from time
to time (as the relevant Finance Party may think fit) of such sums in or
towards the discharge of such liabilities owed to it under the Finance
Documents as such Finance Party may select.


 


30.10                 Limitation
of Liabilities


 


Notwithstanding
that the guarantees of the Guarantors contained in this Clause 30 are
guarantees of the whole of each and every sum payable by the Borrowers under
each of the Finance Documents, it is agreed and acknowledged that the maximum
amount recoverable from each Guarantor under Clauses 30.1 (Guarantee) and 30.2 (Indemnity)
shall be limited to the extent set out in this Clause 30 or otherwise, as
agreed by the Agent and set out in an Accession Notice executed by an Acceding
Guarantor; for this purpose, any amount due to a Finance Party under a Finance
Document in a currency other than euro shall be converted into euro at the
Agent’s Spot Rate of Exchange on the date on which a demand is made pursuant to
either or both of such Clauses.


 


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30.11                 Matters
relating to U.S. law


 


Each U.S. Guarantor
hereby confirms that the Guarantee shall not constitute a fraudulent transfer
or conveyance for purposes of the United States Bankruptcy Code, the United
States Uniform Fraudulent Conveyance Act or any similar federal or state
law.  To effectuate the foregoing
intention, each U.S. Guarantor hereby irrevocably agrees that the obligations
guaranteed by each such Guarantor shall be limited to such amount as will,
after giving effect to such maximum amount and all other (contingent or
otherwise) liabilities of such Guarantor that are relevant under such laws,
result in the obligations of such Guarantor in respect of such maximum amount
not constituting a fraudulent transfer or conveyance.


 


30.12                 Matters
relating to Dutch law


 


Each Dutch
Guarantor hereby confirms that the Guarantee and any other acts constituted by
any of the Finance Documents to which it is a party will not or is not intended
to constitute unlawful financial assistance within the meaning of Section 2.207c
or 2.98c of the Dutch Civil Code which could be invoked by such Dutch
Guarantor.  Such acts are deemed to be
restricted or not entered into, as appropriate, if and to the extent required
not to cause such unlawful financial assistance and this Agreement and the
relevant Finance Documents shall be construed accordingly.


 


30.13                 Matters
relating to Belgian law


 


Anything herein or
in the Finance Documents to the contrary notwithstanding, the maximum liability
of the Belgian Guarantor hereunder shall be limited to the highest of (a) the
Net Assets of the Belgian Guarantor at the date hereof, (b) the Net Assets
of the Belgian Guarantor at the date of the enforcement of such liability and (c) the
total of all amounts borrowed under the Finance Documents which have been
on-lent to the Belgian Guarantor. For these purposes, “Net Assets” shall have
the meaning given to such term (“l’actif net/netto-actief”)
in Article 617 of the Belgian Company Code.


 


30.14                 Matters
relating to Luxembourg law


 


Notwithstanding
anything to the contrary in the Guarantee, the payment undertaking of the
Luxembourg Guarantor shall be limited at any time to an aggregate amount not
exceeding 85 per cent. of the greater of the Luxembourg Guarantor’s own
funds (“capitaux propres”) as mentioned in its then most recently approved
financial statements, or as mentioned in its last filed financial statements.


 


30.15                 Matters
relating to Australian law


 


Notwithstanding
anything to the contrary contained elsewhere in this Agreement (including
without limitation in this Clause 30) or any Finance Document, it is
acknowledged and agreed that, in the case of the pledge of Equity Interests in
CEAL only, the aggregate amount secured by said Equity Interests is, until such
time as otherwise required by the immediately succeeding sentence, limited to
€10,000,000.  The purpose of this
provision is to ensure that the Finance Parties remain fully secured after the
date of the pledge of Equity Interests. 
Notwithstanding anything to the contrary in this Clause 30.15, if
at any time, or from time to time, the Instructing Group specify, by written
notice to the Parent, Buhrmann International B.V. and the Security Trustee,
that the amount secured by the Equity Interests in CEAL be increased to a
specified amount, such increase shall automatically occur in accordance with 


 


166

















 


the share mortgage
of CEAL between Buhrmann International BV and the Security Trustee.  In connection with any notice given in
accordance with the immediately preceding sentence, the Lenders hereby agree
that they shall not specify that the amount secured by the Equity Interests in
CEAL be increased above an amount which is equal to 120 per cent. of the
reasonable estimate (by the Instructing Group) of the maximum fair market value
of Equity Interest so pledged, in each case as reasonably determined by the
Instructing Group; provided that the Parent and its Subsidiaries shall be bound
by any determination of such maximum fair market value by the Instructing Group
and shall have no rights against any Finance Party whatsoever for any error by
the Instructing Group in arriving at such amount.  In connection with such increase, the Parent
shall, and shall cause its respective Subsidiaries to, execute and deliver such
modifications or supplements to the Security Documents as may be requested by
the Security Trustee to evidence the increase of the amount so secured and
shall pay all stamp tax (and any other amounts) owing in connection with the
increase in the amount secured.  All
actions required in accordance with this Clause 30.15 shall be taken
within 20 days after the Parent’s receipt of any such specification.  It is understood that all stamp tax and other
charges, expenses or duties payable in connection with any of the actions taken
as described above shall be for the joint and several account of the
Obligors.  If for any reason the Parent
does not cause the actions required to be taken as described above to be taken
in accordance with any request from the Instructing Group, the Instructing
Group (or the Security Trustee at their direction) may (but shall not be
required to) take any such actions (and pay any stamp duties, taxes or charges
owing in connection therewith) and shall be entitled to immediate reimbursement
from the Obligors for any such amounts expended by them.


 


31.                               AGENT AND OBLIGORS’ AGENT


 


31.1                        Appointment of the Agent


 


Each of the other
Finance Parties appoints the Agent to act as its agent under and in connection
with the Finance Documents and authorises the Agent to exercise the rights,
powers, authorities and discretions specifically delegated to it under or in
connection with the Finance Documents together with any other incidental
rights, powers, authorities and discretions.


 


31.2                        Duties of the Agent


 


(a)                                 The Agent shall promptly inform each Lender of the contents of any
notice or document received by it in its capacity as Agent from any of the
Obligors under this Agreement.


 


(b)                                 The Agent shall promptly notify the Lenders of the occurrence of any
Event of Default or any default by an Obligor in the due performance of or
compliance with its obligations under any Finance Document upon becoming aware
of the same.


 


(c)                                 If so instructed by an Instructing Group, the Agent shall refrain
from exercising any power or discretion vested in it as agent under any Finance
Document.


 


(d)                                 The duties of the Agent under the Finance Documents are, save to the
extent otherwise expressly provided, solely mechanical and administrative in
nature.


 


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31.3                        Role of the Arrangers


 


Except as
specifically provided in the Finance Documents, the Arrangers shall have no
obligations of any kind to any other party under or in connection with any
Finance Document.


 


31.4                        No Fiduciary Duties


 


(a)                                 Nothing in the Finance Documents constitutes the Agent or any of the
Arrangers as a trustee or fiduciary of any other person.


 


(b)                                 Neither the Agent nor any of the Arrangers shall be bound to account
to any Lender for any sum or the profit element of any sum received by it for
its own account.


 


31.5                        Business with the Group


 


The Agent and the
Arrangers may accept deposits from, lend money to and generally engage in any
kind of banking or other business with any member of the Group.


 


31.6                        Discretion of the Agent


 


(a)                                  The Agent may rely on:


 


(i)                                    any representation, notice or document believed by it to be genuine,
correct and appropriately authorised; and


 


(ii)                                any statement made by a director, authorised signatory or employee
of any person regarding any matters which may reasonably be assumed to be
within his knowledge or within his power to verify.


 


(b)                                  The Agent may assume, unless it has received notice to the contrary
in its capacity as agent for the Lenders, that:


 


(i)                                    no Default has occurred;


 


(ii)                                any right, power, authority or discretion vested in this Agreement
upon any party, the Lenders or an Instructing Group has not been exercised; and


 


(iii)                            any notice or request made by the Parent is made on behalf of and
with the consent and knowledge of all the Obligors.


 


(c)                                 The Agent may engage, pay for and rely on the advice or services of
any lawyers, accountants, surveyors or other experts.


 


(d)                                 The Agent may act in relation to the Finance Documents through its
personnel and agents.


 


(e)                                 The Agent may execute on behalf of any L/C Bank any Documentary
Credit issued under this Agreement.


 


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31.7                        Instructing Group’s Instructions


 


(a)                                 Unless a contrary indication appears in a Finance Document, the Agent
shall (i) act in accordance with any instructions given to it by an
Instructing Group (or, if so instructed by an Instructing Group, refrain from
acting or exercising any right, power, authority or discretion vested in it as
Agent) and (ii) shall not be liable for any act (or omission) if it
acts (or refrains from taking any action) in accordance with such an
instruction of an Instructing Group.


 


(b)                                 Unless a contrary indication appears in a Finance Document, any
instructions given by an Instructing Group will be binding on all the Finance
Parties.


 


(c)                                 The Agent may refrain from acting in accordance with the
instructions of an Instructing Group (or, if appropriate, the Lenders) until it
has or received such security or collateral as it may require for any cost,
loss or liability which it may incur in complying with such instructions.


 


(d)                                 In the absence of instructions from an Instructing Group (or, if
appropriate, the Lenders), the Agent may act (or refrain from taking action) as
it considers to be in the best interest of the Lenders.


 


(e)                                 The Agent is not authorised to act on behalf of a Lender in any
legal or arbitration proceedings relating to any Finance Document without first
obtaining the Lender’s consent to do so.


 


31.8                        No Responsibility


 


The Agent and the
Arrangers are not:


 


(a)                                 responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by any Finance Party or an
Obligor or any other person in or in connection with any Finance Document,
including the Information Memorandum and the Agreed Business Plan; or


 


(b)                                 responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or any other agreement, arrangement or
document entered into, made or executed in anticipation of or in connection
with any Finance Document.


 


31.9                        Exclusion of Liability


 


(a)                                 Without limiting paragraph (b) of this Clause, the Agent
will not be liable for any action taken by it under or in connection with any
Finance Document, unless directly caused by its gross negligence or wilful
misconduct.


 


(b)                                 Each of the Lenders agrees that it will not take any proceedings, or
assert or seek to assert any claim, against any officer, employee or agent of
the Agent in respect of any claim it might have against the Agent or in respect
of any act or omission of any kind by that officer, employee or agent in
relation to any Finance Document and agrees that any officer, employee or agent
of the Agent may enforce this provision.


 


(c)                                 The Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required under the Finance
Documents to be paid by it if it 


 


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has taken all
necessary steps as soon as reasonably practicable to comply with the
regulations or operating procedures of any recognised clearing or settlement
system used by it for that purpose.


 


31.10                 Lender’s
Indemnity


 


Each Lender shall
(in its relevant Proportion (as determined at all times for these purposes in
accordance with paragraph (c) of the definition of “Proportion”),
indemnify the Agent from time to time on demand by the Agent against any cost,
loss or liability incurred by the Agent (otherwise than by reason of its gross
negligence or wilful misconduct) in acting as Agent under the Finance Documents
(unless it has been reimbursed therefor by an Obligor pursuant to the terms of
the Finance Documents).


 


31.11                 Resignation


 


(a)                                 The Agent may resign and appoint one of its Affiliates acting through
an office in the United Kingdom as successor Agent by giving notice to the
Lenders and the Parent.


 


(b)                                 Alternatively the Agent may resign without having designated a
successor as agent under paragraph (a) above (and shall do so if so
required by an Instructing Group) by giving notice to the Lenders and the
Parent, in which case an Instructing Group (after consultation with the Parent)
may appoint a successor Agent.


 


(c)                                 If an Instructing Group has not appointed a successor Agent in
accordance with paragraph (b) above within 30 days after notice
of resignation was given, the Agent (after consultation with the Parent) may
appoint a successor Agent (acting through an office in the United Kingdom).


 


(d)                                 The retiring Agent shall, at the Parent’s cost, make available to
its successor such documents and records and provide such assistance as its
successor may reasonably request for the purposes of performing its functions
as Agent under the Finance Documents.


 


(e)                                 The resignation notice of the Agent shall only take effect upon the
appointment of a successor Agent.


 


(f)                                   Upon the appointment of a successor, the retiring Agent shall be
discharged from any further obligation in respect of the Finance Documents but
shall remain entitled to the benefit of this Clause 31.  The Agent’s successor and each of the other
parties to this Agreement shall have the same rights and obligations amongst
themselves as they would have had if such successor Agent had been an original
party as Agent.


 


31.12                 Confidentiality


 


(a)                                 The Agent (in acting as agent for the Finance Parties) shall be
regarded as acting through its respective agency division which in each case
shall be treated as a separate entity from any other of its divisions or
departments.


 


(b)                                 If information is received by another division or department of the
Agent, it may be treated as confidential to that division or department and the
Agent shall not be deemed to have notice of it.


 


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(c)                                 Notwithstanding any other provision of any Finance Document to the
contrary, the Finance Parties are not obliged to disclose to any other person (i) any
confidential information or (ii) any other information if the disclosure
would, or might in its reasonable opinion, constitute a breach of any Law.


 


31.13                 Facility
Office


 


The Agent may treat
each Lender as a Lender, entitled to payments under this Agreement and acting
through its Facility Office unless it has received not less than 5 Business
Days’ prior notice from that Lender to the contrary in accordance with the
terms of this Agreement.


 


31.14                 Lenders’
Associated Costs Details


 


Each Lender shall
supply the Agent with any information required by the Agent in order to
calculate the Associated Costs Rate in accordance with Schedule 6 (Associated Costs Rate).


 


31.15                 Credit
Appraisal by the Lenders


 


Without affecting
the responsibility of any Obligor for information supplied by it or on its
behalf in connection with any Finance Document, each Lender confirms to the
Agent and the Arrangers that it has been, and will continue to be, solely
responsible for making its own independent appraisal and investigation of all
risks arising under or in connection with any Finance Document including but
not limited to:


 


(a)                                 the financial condition, status and nature of each member of the
Group;


 


(b)                                 the legality, validity, effectiveness, adequacy or enforceability of
any Finance Document and any other agreement, arrangement or document entered
into, made or executed in anticipation of, under or in connection with any
Finance Document;


 


(c)                                 whether that Lender has recourse, and the nature and extent of that
recourse, against any party or any of its respective assets under or in
connection with any Finance Document, the transactions contemplated by the
Finance Documents or any other agreement, arrangement or document entered into,
made or executed in anticipation of, under or in connection with any Finance
Document; and


 


(d)                                 the adequacy, accuracy and/or completeness of the Information
Memorandum and the Agreed Business Plan and any other information provided by
the Agent, the Arrangers or by any other person under or in connection with any
Finance Document, the transactions contemplated by the Finance Documents or any
other agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance Document.


 


31.16                 Deduction
from Amounts Payable by the Agent


 


If any party owes
an amount to the Agent under any Finance Document the Agent may, after giving
notice to that party, deduct an amount not exceeding that amount from any
payment to that party which the Agent would otherwise be obliged to make under
the Finance Documents and apply the amount deducted in or towards satisfaction
of the amount owed.  For the purposes of
the Finance Documents that party shall be regarded as having received such
payment without any such deduction.


 


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31.17                 Obligors’
Agent


 


(a)                                 Each Obligor (other than the Parent) irrevocably authorises the
Parent to act on its behalf as its agent in relation to the Finance Documents
and irrevocably authorises:


 


(i)                                   the Parent on its behalf to supply all information concerning
itself, its financial condition and otherwise to the relevant persons contemplated
under this Agreement and to give all notices and instructions to execute on its
behalf any Finance Document and to enter into any agreement in connection with
the Finance Documents notwithstanding that the same may affect such Obligor,
without further reference to or the consent of such Obligor; and


 


(ii)                               each Finance Party to give any notice, demand or other communication
to be given to or served on such Obligor pursuant to the Finance Documents to
the Parent on its behalf,


 


and in each such case such Obligor will be bound
thereby as though such Obligor itself had supplied such information, given such
notice and instructions, executed such Finance Document and agreement or
received any such notice, demand or other communication.


 


(b)                                 Every act, omission, agreement, undertaking, settlement, waiver,
notice or other communication given or made by the Obligors’ Agent under any
Finance Document, or in connection with this Agreement (whether or not known to
any other Obligor and whether occurring before or after such Obligor became an
Obligor under this Agreement), shall be binding for all purposes on all other
Obligors as if the other Obligors had expressly made, given or concurred with
the same.  In the event of any conflict
between any notices or other communications of the Obligors’ Agent and any
other Obligor, those of the Obligors’ Agent shall prevail.


 


31.18                 Co-operation
with the Agent


 


Each Lender and
each Obligor will co-operate with the Agent to complete any legal requirements
imposed on the Agent in connection with the performance of its duties under
this Agreement and shall supply any information requested by the Agent in
connection with the proper performance of those duties.


 


32.                               SECURITY TRUSTEE


 


32.1                        Declaration of Trust


 


To the extent the
Security Trustee does not hold the Trust Property on trust pursuant to the
terms of the Security Documents, and subject to the provisions of
Clause 32.6 (Non-Trust Jurisdictions),
the Security Trustee hereby declares itself trustee of the Trust Property for
the purpose of securing the Secured Obligations on the terms and conditions set
out in this Agreement.


 


32.2                        Rights, Duties, Powers, Discretions and Remuneration of the Security
Trustee


 


(a)                                 The Security Trustee shall have such rights, powers, authorities and
discretions as are conferred on it by this Agreement (including those set out
in Part I of Schedule 5 (Supplementary Security
Trustee Provisions) to this Agreement) and the Security


 


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Documents
together with such rights, powers and discretions as are reasonably incidental
thereto.


 


(b)           (i)                             The
Security Trustee may, in its absolute discretion refrain from taking any (or
any further) action or exercising any right, power, authority or discretion
under or in respect of this Agreement or any Security Document until it has
received instructions from the Agent as to whether (and/or the way in which)
such action, right, power, authority or discretion is to be taken or exercised.


 


(ii)                               The
Security Trustee shall act in accordance with any instructions from the Agent
in respect of this Agreement or any of the Security Documents provided that it
has been indemnified and/or provided with security to its satisfaction against
all actions, proceedings, claims and demands to which it may render itself
liable and all costs, charges, damages, expenses and liabilities which it may
incur by so doing.


 


(c)                                 The Security Trustee shall be entitled to such remuneration as it
may from time to time agree with the Parent and have approved by the Agent. The
Security Trustee shall not by virtue of receiving any such remuneration or
other payment be deprived of any rights, powers, privileges or immunities which
a gratuitous trustee would have had in relation to this Agreement or any of the
Security Documents.


 


32.3                        Indemnity to Security Trustee


 


Each Finance Party
hereby severally agrees to indemnify the Security Trustee on demand against any
action, charge, claim, cost, damage, demand, expense (including legal fees), liability,
loss or proceeding which may be brought, made or preferred against or suffered,
sustained or incurred by the Security Trustee in complying with any
instructions from the Finance Parties or otherwise sustained or incurred by the
Security Trustee in connection with this Agreement or any Finance Document or
its rights, powers, authorities, discretions, duties, obligations and
responsibilities under any such document except to the extent that the
liability or loss arises directly from the Security Trustee’s gross negligence,
breach of a Finance Document or wilful misconduct.


 


32.4                        Appointment and Retirement of the Security Trustee


 


The appointment and
retirement of the Security Trustee shall be governed by the provisions set out
in Part II of Schedule 5 (Appointment and Retirement
of Security Trustee).


 


32.5                        Release of Guarantees


 


The Security
Trustee shall and is hereby authorised by each of the Finance Parties (and to
the extent it may have any interest therein, every other party hereto) to
execute on behalf of itself and each Finance Party and other party hereto where
relevant, without the need for any further referral to, or authority from, any
Finance Party or other person, all necessary releases of any guarantees or
security given by any Obligor under any Finance Document in relation to the
disposal of any asset which is permitted under or consented to in accordance
with the relevant Finance Documents, including without limitation any release
of any guarantee or security given under any Finance Document or any other
document referred to therein where all the shares in the capital of the party
giving such guarantee or security are so disposed of in accordance with the
terms of and without any breach of the Finance Documents.


 


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32.6                        Non-Trust Jurisdictions


 


It is hereby agreed
that, in relation to any jurisdiction the courts of which would not recognise
or give effect to the trusts expressed to be created by this Agreement, the
relationship of the Finance Parties to the Security Trustee shall be construed
as one of principal and agent but, to the extent permissible under the Laws of
such jurisdiction, all the other provisions of this Agreement shall have full
force and effect between the parties hereto.


 


32.7                        Parallel Debt


 


(a)                                  Each Obligor (in this Clause, each a “Security
Party” and together the “Security Parties”)
agrees, as primary obligor and not as a surety, that promptly on demand of the
Security Trustee it will pay to the Security Trustee any Secured Obligation
which is due and unpaid from time to time in accordance with the Finance
Documents (the “Parallel Debt”) provided that:


 


(i)                                    any payment by a Security Party to the Security Trustee pursuant to
this Clause 32.7 shall satisfy pro
tanto the amounts due and payable to the Finance Parties;


 


(ii)                                any payment by a Security Party to the Finance Parties shall satisfy
pro tanto the amounts due and
payable to the Security Trustee pursuant to this Clause 32.7; and


 


(iii)                            any payment by a Security Party to the Security Trustee or the
Finance Parties, as the case may be, shall satisfy such Obligor’s obligation
under this Clause 32.7 unless such payment is subsequently avoided or
reduced by virtue of any bankruptcy, insolvency, liquidation or similar laws.


 


(b)           Each Security Party, the Security Trustee and each Finance Party
acknowledges that the Parallel Debt is enforceable by the Security Trustee on
its own behalf.  For the avoidance of
doubt, each of the parties hereto agree that this Clause 32.7 shall
continue to apply notwithstanding there has been a change in the Security
Trustee in accordance with Schedule 5 (Security
Trustee Provisions).


 


(c)                                  Neither the obligations of the Security Parties contained in this
Agreement nor the rights, powers and remedies conferred on the Security Trustee
and/or the Finance Parties in respect of the Security Parties by this Agreement
or by Law shall be discharged, impaired or otherwise affected by:


 


(i)                                    the winding-up, dissolution, administration or re-organisation of
any Security Party or any other person or any change in the status, function,
control or ownership of any Security Party or any such person;


 


(ii)                                any of the obligations of any Security Party or any other person
under any of the Finance Documents or any security held by the Security Trustee
and/or any Finance Party therefor being or becoming illegal, invalid,
unenforceable or ineffective in any respect;


 


(iii)                            any time or other indulgence being granted to or agreed (i) to
or with any Security Party or any other person in respect of its obligations or
(ii) in respect of any security granted under any of the Finance
Documents;


 


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(iv)          any amendment to, or any variation, waiver or release of, any
obligation of, or any security granted by, any Security Party or any other
person under any of the Finance Documents;


 


(v)            any total or partial failure to take, or perfect, any security
proposed to be taken in respect of the obligations of any Security Party or any
other person under any of the Finance Documents;


 


(vi)          any total or partial failure to realise the value of, or any
release, discharge, exchange or substitution of, any security held by the
Security Trustee and/or any Finance Party in respect of any Security Party’s
obligations under any of the Finance Documents; or


 


(vii)         any other act, event or omission which might operate to discharge,
impair or otherwise affect any of the obligations of any of the Security
Parties under this Agreement or any of the rights, powers or remedies conferred
upon the Security Trustee and/or any Finance Party or any of them by this
Agreement, any of the Finance Documents or by Law.


 


(d)                                 For the avoidance of doubt, the Parallel Debt of each Security Party
shall be deemed to constitute a single obligation of such Security Party.


 


33.                               BORROWERS’ INDEMNITIES


 


33.1                        General Indemnities


 


Each Borrower
undertakes to indemnify:


 


(a)                                 each of the Finance Parties against any cost, claim, loss, expense
(including legal fees) or liability, which any of them may sustain or incur as
a consequence of the occurrence of any Default; and


 


(b)                                 each Lender against any loss it may suffer or incur as a result of (i) its
funding or making arrangements to fund its portion of an Advance or (ii) its
issuing or making arrangements to issue a Documentary Credit, in each case
requested by that Borrower under this Agreement but not made by reason of the
operation of any one or more of the provisions of this Agreement (save as a
result of its own gross negligence, breach of a Finance Document or wilful
default).


 


33.2                        Break Costs


 


(a)                                 Each Borrower shall, upon demand by a Finance Party, pay to that
Finance Party its Break Costs attributable to all or any part of any Advance or
Unpaid Sum being paid by that Borrower on a day other than the
last day of an Interest Period or Term for that Advance or Unpaid Sum.


 


(b)                                 Each Lender shall, as soon as reasonably practicable after a demand
by the Agent, provide a certificate confirming the amount of its Break Costs
for any Interest Period or Term in which they accrue.


 


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34.                               CURRENCY OF ACCOUNT


 


34.1                        Currency


 


Euro is the
currency of account and payment for each and every sum at any time due from any
Obligor under this Agreement provided that:


 


(a)                                each repayment of any Outstandings or Unpaid Sum (or part of it)
shall be made in the currency in which those Outstandings or Unpaid Sum are
denominated on their due date;


 


(b)                                interest shall be payable in the currency in which the sum in
respect of which such interest is payable was denominated when that interest
accrued;


 


(c)                                each payment in respect of costs and expenses shall be made in the
currency in which the same were incurred; and


 


(d)                                each payment pursuant to Clause 18.2 (Tax Indemnity)
or Clause 19.1 (Increased Costs)
shall be made in the currency specified by the Finance Party claiming under it.


 


34.2                      Currency Indemnity


 


If any sum due from
an Obligor under this Agreement or any order or judgment given or made in
relation to this Agreement has to be converted from the currency (the “first currency”) in which the same is
payable under this Agreement or under such order or judgment into another
currency (the “second currency”)
for the purpose of (a) making or filing a claim or proof against such
Obligor, (b) obtaining an order or judgment in any court or other tribunal
or (c) enforcing any order or judgment given or made in relation to this
Agreement, the Parent shall indemnify and hold harmless each of the persons to
whom such sum is due from and against any loss suffered or incurred as a result
of any discrepancy between (x) the rate of exchange used for such purpose
to convert the sum in question from the first currency into the second currency
and (y) the rate or rates of exchange at which such person may in the
ordinary course of business purchase the first currency with the second
currency upon receipt of a sum paid to it in satisfaction, in whole or in part,
of any such order, judgment, claim or proof.


 


35.                               PAYMENTS


 


35.1                        Payment to the Agent


 


On each date on
which this Agreement requires an amount to be paid by an Obligor or any of the
Lenders under this Agreement, such Obligor or, as the case may be, such Lender
shall make the same available to the Agent by payment in same day funds
(or such other funds as may for the time being be customary for the settlement
of transactions in the relevant currency) to such account or bank as the Agent
may have specified for this purpose and any such payment which is made for the
account of another person shall be made in time to enable the Agent to make
available such person’s portion of it to such other person in accordance with
Clause 35.2 (Same Day Funds).


 


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35.2                        Same Day Funds


 


Save as otherwise
provided in this Agreement, each payment received by the Agent for the account
of another person shall be made available by the Agent to such other person (in
the case of a Lender, for the account of its Facility Office) for value the
same day by transfer to such account of such person with such bank in a
Participating Member State or London (or for payments in Optional Currencies,
in the applicable financial centre) as such person shall have previously
notified to the Agent for this purpose.


 


35.3                        Clear Payments


 


Any payment
required to be made by an Obligor under this Agreement shall be calculated
without reference to any set-off or counterclaim and shall be made free and
clear of, and without any deduction for or on account of, any set-off or counterclaim.


 


35.4                        Partial Payments


 


If the Agent
receives a payment that is insufficient to discharge all the amounts then due
and payable by an Obligor under the Finance Documents, the Agent shall, unless
otherwise instructed by an Instructing Group, apply that payment towards the
obligations of that Obligor under the Finance Documents in the following order:


 


(a)           first, in payment in or towards payment pro rata
of any unpaid fees, costs and expenses incurred by the Agent and the L/C Bank
under the Finance Documents;


 


(b)           secondly, in or towards payment pro rata of any
accrued interest or commission due but unpaid under any Finance Document;


 


(c)                                  thirdly, in or towards payment pro rata of any
principal due but unpaid under any Finance Document; and


 


(d)                                  fourthly, in or towards payment pro rata of any
other sum due but unpaid under the Finance Documents,


 


and such
application shall override any appropriation made by an Obligor.


 


35.5                        Indemnity


 


Where a sum is to
be paid under this Agreement to the Agent for the account of another person,
the Agent shall not be obliged to make the same available to that other person
(or to enter into or perform any exchange contract in connection therewith)
until it has been able to establish to its satisfaction that it has actually
received such sum, but if it does so and it proves to be the case that it had
not actually received such sum, then the person to whom such sum (or the
proceeds of such exchange contract) was (or were) so made available shall on
request refund the same to the Agent together with an amount sufficient to
indemnify and hold harmless the Agent from and against any cost or loss it may
have suffered or incurred by reason of its having paid out such sum (or the
proceeds of such exchange contract) prior to its having received such sum.


 


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35.6                        Disruption to Payment Systems etc.


 


If either the Agent
determines (in its discretion) that a Disruption Event has occurred or the
Agent is notified by the Parent that a Disruption Event has occurred:


 


(a)                                the Agent may, and shall if requested to do so by the Parent,
consult with the Parent with a view to agreeing with the Parent such changes to
the operation or administration of the Facilities as the Agent may deem necessary
in the circumstances;


 


(b)                                the Agent shall not be obliged to consult with the Parent in
relation to any changes mentioned in paragraph (a) if, in its
opinion, it is not practicable to do so in the circumstances and, in any event,
shall have no obligation to agree to such changes;


 


(c)                                the Agent may consult with the Finance Parties in relation to any
changes mentioned in paragraph (a) but shall not be obliged to do so
if, in its opinion, it is not practicable to do so in the circumstances;


 


(d)                                any such changes agreed upon by the Agent and the Parent shall
(whether or not it is finally determined that a Disruption Event has occurred)
be binding upon the Parties as an amendment to (or, as the case may be, waiver
of) the terms of the Finance Documents notwithstanding the provisions of
Clause 45 (Amendments);


 


(e)                                the Agent shall not be liable for any damages, costs or losses
whatsoever (including, without limitation for negligence, gross negligence or
any other category of liability whatsoever but not including any claim based on
the fraud of the Agent) arising as a result of its taking, or failing to take,
any actions pursuant to or in connection with this Clause 35.6; and


 


(f)                                  the Agent shall notify the Finance Parties of all changes agreed
pursuant to paragraph (d) above.


 


36.                             SET-OFF


 


36.1                      Right to Set-off


 


Each of the
Obligors authorises each Lender to apply any credit balance to which such
Obligor is entitled on any account of such Obligor with that Lender in
satisfaction of any sum due and payable from such Obligor to such Lender under
this Agreement but unpaid; for this purpose, each Lender is authorised to
purchase with the moneys standing to the credit of any such account such other
currencies as may be necessary to effect such application, provided that any
Finance Party may not apply any sums owed by such Finance Party to an Obligor
in connection with any supply of graphical systems, office products or services
directly relating to either of them to such Finance Party towards satisfaction
of any debt owed by such Obligor to that Finance Party or any other Finance
Party under the Finance Documents.  Each
Finance Party and each Obligor undertakes not to enter into any arrangements
between each other in contravention of this Clause 36.1.


 


36.2                        No Obligation


 


No Lender shall be
obliged to exercise any right given to it by Clause 36.1 (Right to Set-Off).


 


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37.                               SHARING AMONG THE FINANCE PARTIES


 


37.1                        Payments to Finance Parties


 


If a Finance Party
(a “Recovering Finance Party”)
receives or recovers any amount from an Obligor other than in accordance with
Clause 35 (Payments) and applies that amount
to a payment due under the Finance Documents then:


 


(a)                                the Recovering Finance Party shall, within 3 Business Days, notify
details of the receipt or recovery to the Agent;


 


(b)                                the Agent shall determine whether the receipt or recovery is in
excess of the amount the Recovering Finance Party would have been paid had the
receipt or recovery been received or made by the Agent and distributed in
accordance with Clause 35.4 (Partial Payments),
without taking account of any tax which would be imposed on the Agent in
relation to the receipt, recovery or distribution; and


 


(c)                                the Recovering Finance Party shall, within 3 Business Days of demand
by the Agent, pay to the Agent an amount (the “Sharing
Payment”) equal to such receipt or recovery less
any amount which the Agent determines may be retained by the Recovering Finance
Party as its share of any payment to be made, in accordance with
Clause 35.4 (Partial Payments).


 


37.2                      Redistribution of Payments


 


The Agent shall
treat the Sharing Payment as if it had been paid by the relevant Obligor and
distribute it between the Finance Parties (other than the Recovering Finance
Party) in accordance with Clause 35.4 (Partial Payments).


 


37.3                        Recovering Finance Party’s Rights


 


(a)           On a distribution by the Agent under Clause 37.2 (Redistribution of Payments), the Recovering Finance Party
will be subrogated to the rights of the Finance Parties which have shared in
the redistribution.


 


(b)           If and to the extent that the Recovering Finance Party is not able
to rely on its rights under paragraph (a) above, the relevant Obligor
shall be liable to the Recovering Finance Party for a debt equal to the Sharing
Payment which is immediately due and payable.


 


37.4                        Reversal of Redistribution


 


If any part of the
Sharing Payment received or recovered by a Recovering Finance Party becomes
repayable and is repaid by that Recovering Finance Party, then:


 


(a)                                  each Finance Party which has received a share of the relevant
Sharing Payment pursuant to Clause 37.2 (Redistribution
of Payments)  shall, upon
the request of the Agent, pay to the Agent for account of that Recovering
Finance Party an amount equal to its share of the  Sharing Payment (together with an amount as
is necessary to reimburse that Recovering Finance Party for its share of any
interest on the Sharing Payment which that Recovering Finance Party is required
to pay); and


 


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(b)                                 that Recovering Finance Party’s rights of subrogation in respect of
any reimbursement shall be cancelled and the relevant Obligor will be liable to
the reimbursing Finance Party for the amount so reimbursed.


 


37.5                        Exceptions


 


(a)           This Clause 37 shall not apply to the extent that the
Recovering Finance Party would not, after making any payment pursuant to this
Clause, have a valid and enforceable claim against the relevant Obligor.


 


(b)           A Recovering Finance Party is not obliged to share with any other
Finance Party under any amount which the Recovering Finance Party has received
or recovered as a result of taking legal or arbitration proceedings, if:


 


(i)                                    it notified such other Finance Party of the legal or arbitration
proceedings; and


 


(ii)                                such other Finance Party had an opportunity to participate in those
legal or arbitration proceedings but did not do so as soon as reasonably
practicable having received notice of it or did not take separate legal or
arbitration proceedings.


 


38.                               CALCULATIONS AND ACCOUNTS


 


38.1                        Day Count Convention


 


Interest and
commitment commission shall accrue from day to day and shall be
calculated on the basis of a year of 365 days (in the case of amounts
denominated in sterling) or 360 days (in the case of amounts denominated
in other Optional Currencies or euro) (as appropriate or, in any case where
market practice differs, in accordance with market practice) and the actual
number of days elapsed.


 


38.2                        Reductions


 


Any repayment of
any Advance denominated in an Optional Currency shall reduce the amount of such
Advance by the amount of such Optional Currency repaid and shall reduce the
Euro Amount of such Advance proportionately.


 


38.3                        Reference Banks


 


Save as otherwise
provided in this Agreement, on any occasion a Reference Bank or Lender fails to
supply the Agent with an interest rate quotation required of it under the
foregoing provisions of this Agreement, the rate for which such quotation was
required shall be determined from those quotations which are supplied to the
Agent.


 


38.4                        Maintain Accounts


 


Each Lender shall
maintain in accordance with its usual practice accounts evidencing the amounts
from time to time lent by and owing to it under this Agreement.


 


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38.5                        Control Accounts


 


The Agent shall
maintain on its books a control account or accounts in which shall be recorded:


 


(a)                                the amount and the Euro Amount of any Advance or Unpaid Sum and the
face amount and the Euro Amount of any Documentary Credit, and each Lender’s
share in it;


 


(b)                                the amount of all principal, interest and other sums due or to
become due from each of the Obligors to any of the Lenders under the Finance
Documents and each Lender’s share in it; and


 


(c)                                the amount of any sum received or recovered by the Agent under this
Agreement and each Lender’s share in it.


 


38.6                        Prima Facie Evidence


 


In any legal action
or proceeding arising out of or in connection with this Agreement, the entries
made in the accounts maintained pursuant to Clause 38.4 (Maintain Accounts) and Clause 38.5 (Control Accounts) shall be prima
facie evidence of the existence and
amounts of the specified obligations of the Obligors.


 


38.7                        Certificate of Finance Party


 


A certificate of a
Finance Party as to the amount for the time being required to indemnify it
against any Tax Liability pursuant to Clause 18.2 (Tax Indemnity) or any Increased Cost
pursuant to Clause 19.1 (Increased Costs)
shall be, save for manifest error, final and conclusive evidence of the
existence and amounts of the specified obligations of the Parent.


 


38.8                        Certificate of the Agent


 


A certificate of
the Agent as to the amount at any time due from the Borrowers under this
Agreement (or the amount which, but for any of the obligations of the Borrowers
under this Agreement being or becoming void, unenforceable or ineffective, at
any time, would have been due from the Borrowers under this Agreement) shall,
in the absence of manifest error, be prima facie evidence
for the purposes of Clause 30 (Guarantee and Indemnity).


 


38.9                        Certificate of L/C Bank


 


A certificate of an
L/C Bank as to the amount paid out or at any time due in respect of a
Documentary Credit shall, absent manifest error, be prima facie
evidence of the payment of such amounts or (as the case may be) of the amounts
outstanding in any legal action or proceedings arising in connection therewith.


 


38.10                 Calculations
in accordance with GAAP


 


All calculations
pursuant to Clause 24 (Financial
Condition) and Clause 26.13 (Assets
and EBITDA Attributable to Qualified Obligors) as well as all
calculations of Excess Cash Flow and the Consolidated Leverage Ratio
(including, without limitation, for purposes of determining the Applicable
Margin) and all other financial terms as same may be used in determining compliance
with Clause 24 (Financial Condition)
and Clause 26.13 (Assets and


 


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EBITDA
Attributable to Qualified Obligors) and calculations
of Applicable Margin and Excess Cash Flow, shall be made in accordance with
GAAP as interpreted and applied as at the Sixth Amendment and Restatement
Effective Date, it being understood that, consistent therewith, all amounts
used in making such calculations shall be determined in euros, converting all
amounts in other currencies into euros in a manner consistent with GAAP as
interpreted and applied as at the Sixth Amendment and Restatement Effective
Date, except that, for the purposes of calculating the numerator only of the
Consolidated Leverage Ratio (including, without limitation, for purposes of
determining the Applicable Margin), any amounts expressed in currencies other
than euros shall be converted into euros (as shown on Reuters ECB page 37
or, if same does not provide such exchange rates, on such other basis as may be
satisfactory to the Agent) for the exchange of such currency into euros for the
period of 30 consecutive days ended one Business Day prior to the
respective determination of the Consolidated Leverage Ratio.


 


39.                               ASSIGNMENTS AND TRANSFERS


 


39.1                        Successors and Assignees


 


This Agreement
shall be binding upon and enure to the benefit of each party to this Agreement
and its or any subsequent successors, permitted assignees and Transferees.


 


39.2                        Assignment or Transfers by Obligors


 


None of the rights,
benefits and obligations of an Obligor under this Agreement shall be capable of
being assigned or transferred and each Obligor undertakes not to seek to assign
or transfer any of its rights, benefits and obligations under this Agreement
without the consent of all the Lenders.


 


39.3                        Assignments or Transfers by Lenders


 


Any Lender may, at
any time, assign all or any of its rights and benefits under the Finance
Documents in accordance with Clause 39.4 (Assignments)
or transfer all or any of its rights, benefits and obligations under the
Finance Documents in accordance with Clause 39.5 (Transfer
Certificate) without the consent of any other party provided that
notwithstanding any other provision of this Agreement:


 


(a)                                  (x) all or a portion of its Commitments (and related
outstanding Facilities Obligations hereunder) and/or its Term Facility
Outstandings may be transferred to (i) its parent company and/or any
affiliate of such Lender or another Lender which is at least 50 per cent.
owned by such Lender or its parent company, (ii) one or more Lenders or (iii) in
the case of any Lender that is a fund that invests in bank loans, any other
fund that invests in bank loans and is managed or advised by the same
investment advisor of such Lender or another Lender or by an Affiliate of such
investment advisor or (y) all, or if less than all, a portion equal to at
least €1,000,000 in the aggregate for the assigning or transferring Lender(s),
of such Commitments (and related outstanding Obligations hereunder) and/or its
Term Facility Outstandings hereunder to one or more Eligible Institutions
(treating any fund that invests in bank loans and any other fund that invests
in bank loans and is managed or advised by the same investment advisor of such
fund or by an Affiliate of such investment advisor as a single Eligible
Institution), provided that, (i) at such time Part I of
Schedule 1 (Lenders and Commitments)
shall be deemed modified to reflect the Commitments (and/or Term 


 


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Facility
Outstandings, as the case may be) of such new Lender and of the existing
Lenders, (ii) the consent of each L/C Bank and each Swingline Facility
Lender shall be required in connection with any assignment or transfer of all
or any portion of Revolving Facility Commitments (which consents shall not be
unreasonably withheld or delayed), (iii) in the case of assignments or
transfers pursuant to clause (y) above, the consent of the Agent shall be
required (which consent shall not be unreasonably withheld or delayed) and, so
long as no Default or Event of Default then exists, the prior written consent
of the relevant Borrowers shall be required (which consent shall not be
unreasonably withheld or delayed).


 


(b)           At the time of each assignment pursuant to this Clause 39.3 to
a person which is not already a Lender hereunder and which is not a U.S. Person
(as such term is defined in Section 7701(a)(30) of the Code) for U.S.
federal income tax purposes, the respective assignee or transferee Lender shall
provide to the relevant Borrowers and the Agent the appropriate Internal
Revenue Service Forms (and, if appropriate, the form specified in
paragraph (e) of Clause 18.1 (Tax
Gross-up)).


 


(c)           To the extent that an assignment pursuant to Clause 21.1 (Replacement of Lenders) and this
Clause 39 would, at the time of such assignment or transfer, result in
increased costs under Clauses 18 (Taxes),
19.1 (Increased Costs) or 20 (Illegality) from those being charged by
the respective assigning or transferring Lender prior to such assignment or
transfer, then the relevant Borrowers shall not be obligated to pay such
increased costs (although the relevant Borrowers shall be obligated to pay any
other increased costs of the type described above resulting from changes after
the date of the respective assignment or transfer).  At the time of any such assignment or
transfer pursuant to this Clause 39.3, the assigning or transferring
Lender shall furnish notice thereof to the Agent.


 


(d)                                 Nothing
in this Agreement shall prevent or prohibit any Lender from pledging or
assigning by way of security its Outstandings hereunder to a Federal Reserve
Lender in support of borrowings made by such Lender from such Federal Reserve
Lender and, with the consent of the Agent, any Lender which is a fund may
pledge or assign by way of security all or any portion of its Outstandings to a
trustee for the benefit of investors and in support of its obligation to such
investors.  No pledge or assignment by
way of security pursuant to this paragraph (d) shall release the
transferor Lender from any of its obligations hereunder.  For the avoidance of doubt, a pledge shall
not include a charge by way of security.


 


39.4                        Assignments


 


If any Lender
wishes to assign all or any of its rights and benefits under the Finance
Documents, unless and until the relevant assignee has agreed with the other
Finance Parties that it shall be under the same obligations towards each of
them as it would have been under if it had been an original party to the
Finance Documents as a Lender, such assignment shall not become effective and
the other Finance Parties shall not be obliged to recognise such assignee as
having the rights against each of them which it would have had if it had been
such a party to this Agreement.


 


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39.5                        Transfer Certificate


 


If any Lender
wishes to transfer all or any of its rights, benefits and/or obligations under
the Finance Documents, such transfer may be effected by novation through the
delivery to the Agent of a duly completed and duly executed Transfer Certificate
in which event, on the later of the Transfer Date specified in such Transfer
Certificate and the fifth Business Day after (or such earlier Business Day
endorsed by the Agent on such Transfer Certificate falling on or after) the
date of delivery of such Transfer Certificate to the Agent:


 


(a)           to the extent that in such Transfer Certificate the Lender party to
it seeks to transfer its rights, benefits and obligations under the Finance
Documents, each of the Obligors and such Lender shall be released from further
obligations towards one another under the Finance Documents and their
respective rights against one another shall be cancelled (such rights and
obligations being referred to in this Clause 39.5 as “discharged rights and obligations”);


 


(b)           each of the Obligors and the Transferee party to it shall assume
obligations towards one another and/or acquire rights against one another which
differ from the discharged rights and obligations only insofar as such Obligor
and such Transferee have assumed and/or acquired the same in place of such
Obligor and such Lender;


 


(c)                                  subject to Clause 21.1 (Replacement
of Lenders), the other Finance Parties and the Transferee shall
acquire the same rights and benefits and assume the same obligations between
themselves as they would have acquired and assumed had such Transferee been an
original party to the Finance Documents as a Lender with the rights, benefits
and obligations acquired or assumed by it as a result of such transfer; and


 


(d)                                  such Transferee shall become a party to this Agreement as a Lender.


 


39.6                        Transfer Fee


 


On the date upon
which a transfer takes effect pursuant to Clause 39.5 (Transfer Certificate) the Transferee in respect of such
transfer shall pay to the Agent for its own account a transfer fee of €1,500
provided that this fee shall not be payable by any Lender party to this
Agreement on the date of this Agreement in respect of transfers made by such
Lender prior to the Syndication Date.


 


39.7                        Sub-participations


 


Subject to
Clause 46 (Third Party Rights)
any Lender may grant participations in its rights hereunder, such Lender shall
remain a “Lender” for all purposes hereunder (and may not otherwise transfer or
assign all or any portion of its Commitments hereunder except as provided in
Clause 39.3 (Assignments or Transfers
by Lenders)) and the participant shall not constitute a “Lender”
hereunder and provided that no Lender shall grant any participation under which
the participant shall have rights to approve any amendment to or waiver of this
Agreement or any other Finance Document except to the extent such amendment or
waiver would:


 


(a)                                  extend the final scheduled maturity of any Facility or Documentary
Credit (unless such Documentary Credit is not extended beyond the Final
Maturity Date of the Revolving Facility) in which such participant is
participating, or reduce the rate or 


 


184

















 


extend the
time of payment of interest or fees thereon (except in connection with a waiver
of applicability of any post-default increase in interest rates) or reduce the
principal amount thereof, or increase the amount of the participant’s
participation over the amount thereof then in effect (it being understood that
a waiver of any Default or Event of Default or of a mandatory repayment of Term
Facility Outstandings or a mandatory reduction in the Available Revolving
Facility shall not constitute a change in the terms of such participation, and
that an increase in any Commitment or Outstandings shall be permitted without
the consent of any participant if the participant’s participation is not
increased as a result thereof);


 


(b)           consent to the assignment or transfer by any Obligor of any of its
rights and obligations under this Agreement;


 


(c)           release all or substantially all of the Collateral under all of the
Security Documents (except as expressly provided in the Finance Documents)
supporting the Facilities Obligations hereunder in which such participant is
participating.


 


In the case of any
such participation, the participant shall not have any rights under this
Agreement or any of the other Finance Documents (the participant’s rights
against such Lender in respect of such participation to be those set forth in
the agreement executed by such Lender in favour of the participant relating
thereto) and all amounts payable by the Borrowers hereunder shall be determined
as if such Lender had not sold such participation, except that to the extent
that the participant may be required to be recognised as the owner (or
beneficial owner) for tax purposes, such participant shall be considered as the
Lender in applying any of the provisions of the Finance Documents that involve
such tax.


 


39.8                       Disclosure of Information


 


(a)                                 Subject to the provisions of paragraph (b) below, each
Lender agrees that it will treat as confidential (in accordance with normal
banking procedures) any information with respect to the Parent or any of its
Subsidiaries which is now or in the future furnished pursuant to this Agreement
or any other Finance Document, provided that
any Lender may disclose any such information:


 


(i)                                    as has become generally available to the public other than by virtue
of a breach of this paragraph (a) by the respective Lender;


 


(ii)                                as may be required or is reasonably appropriate in any report,
statement or testimony submitted to any municipal, state, Federal or foreign
regulatory body having or claiming to have jurisdiction over such Lender or to
the Federal Reserve Board or the Federal Deposit Insurance Corporation, the
NAIC or similar organizations (whether in the United States or elsewhere) or
their successors;


 


(iii)                            as may be required or reasonably appropriate in respect to any
summons or subpoena or in connection with any litigation;


 


(iv)                               in order to comply with any law, order, regulation or ruling
applicable to such Lender;


 


(v)                                   to the Agent or the Security Trustee;


 


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(vi)          to such Lender’s Affiliates, employees, auditors, advisors or
counsel or to another Lender if the Lender or such Lender’s holding or parent
company in its sole discretion determines that any such party should have
access to such information, provided such
persons shall be subject to the provisions of this Clause 39.8 to the same
extent as such Lender; and


 


(vii)         to any pledgee referred to in Section 39.3(d) or any
prospective or actual transferee or participant or their respective investment
advisors in connection with any contemplated transfer, pledge, participation,
securitisation or hedge of any of the Commitments, any interest therein by such
Lender or any other transaction under which payments are to be made by
reference to any Finance Document or Obligor, provided
that such prospective pledgee, transferee, participant or, as the case may be,
investment advisor agrees to be bound by the confidentiality provisions
contained in this Clause 39.8.


 


(b)           Each Obligor hereby
acknowledges and agrees that each Lender may share with any of its affiliates
any information related to the Parent or any of its Subsidiaries (including,
without limitation, any non-public customer information regarding the
creditworthiness of the Parent and its Subsidiaries), provided
that such Persons shall be subject to the provisions of this Clause 39.8
to the same extent as such Lender.


 


(c)                                  Notwithstanding
anything in this Agreement, any amendments to this Agreement, or any other
document, agreement or understanding relating to the transactions contemplated
by this Agreement, each party to this Agreement and its affiliates (and each
employee, representative, or other agent of such party or its affiliates) are
authorised to disclose to any and all persons, beginning immediately upon
commencement of discussions regarding the transactions contemplated by this
Agreement and without limitation of any kind, the U.S. federal, state or local
tax treatment and tax structure of such transactions, and all materials of any
kind (including opinions or other tax analyses) that are provided to such party
or its affiliates relating to such tax treatment and tax structure, except to
the extent that such disclosure is subject to restrictions reasonably necessary
to comply with securities laws.  For
purposes of this authorisation, the “tax treatment” of a transaction means the
purported or claimed tax treatment of the transaction, and the “tax structure”
of a transaction means any fact that may be relevant to understanding the
purported or claimed tax treatment of the transaction.  This paragraph is intended to reflect the
understanding of the parties that the transactions contemplated by this
Agreement have not been offered under “conditions of confidentiality”, as that
phrase is used in U.S. Treasury Regulations sections 1.601-4(b)(3) and
301.6111-2(c), and in any state or local law or regulation incorporating all or
part of such sections, and shall be interpreted in a manner consistent
therewith.  Nothing herein is intended to
imply that any party or its affiliates (or any employee, representative, or
other agent of such party or its affiliates) has made or provided to, or for
the benefit of, any other party or its affiliates any oral or written statement
as to any potential U.S. federal, state or local tax consequences that are
related to, or may result from, the transactions contemplated by this
Agreement.  None of the parties provides
accounting, tax or legal advice, and each has consulted, or will consult, its
own advisers regarding its participation in such transactions.


 


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39.9                        Register


 


The Borrowers
hereby designate the Agent to serve as the Borrowers’ agent, solely for
purposes of this Clause 39.9, to maintain a register (the “Register”) on which it will record the
Commitments from time to time of each of the Lenders, the Advances made by each
of the Lenders and each repayment in respect of the principal amount of the
Advances of each Lender.  Failure to make
any such recordation, or any error in such recordation, shall not affect the
Borrowers’ obligations in respect of such Advances.  With respect to any Lender, the transfer of
the Commitments of such Lender and the rights to the principal of, and interest
on, any Advance made pursuant to such Commitments shall be not be effective
until such transfer is recorded on the Register maintained by the Agent with
respect to ownership of such Commitments and Advances and prior to such
recordation all amounts owing to the transferor with respect to such
Commitments and Advances shall remain owing to the transferor.  The registration of assignment or transfer of
all or part of any Commitments and Advances shall be recorded by the Agent on
the Register only upon the acceptance by the Agent of a properly executed and
delivered Transfer Certificate pursuant to Clause 39.5 (Transfer Certificate).  The Borrowers agree to indemnify the Agent
from and against any and all losses, claims, damages and liabilities of
whatsoever nature which may be imposed on, asserted against or incurred by the
Agent in performing its duties under this Clause 39.9 except to the extent
resulting from the gross negligence or wilful misconduct of the Agent (as
determined by a court of competent jurisdiction in a final and non-appealable
decision).


 


40.                               COSTS AND EXPENSES


 


40.1                        Transaction Costs


 


The Parent shall,
from time to time on demand of the Agent, reimburse the Agent, the Security
Trustee and each of the Arrangers for all reasonable costs and expenses
(including legal fees) incurred by them in connection with the negotiation,
preparation and execution of the Finance Documents and the completion of the transactions
therein contemplated and primary syndication of the Facilities (including
publicity expenses).


 


40.2                        Preservation and Enforcement Costs


 


The Parent shall,
from time to time on demand of the Agent, reimburse each Finance Party for all
costs and expenses (including legal fees) incurred in or in connection with the
preservation and/or enforcement of any of the rights of such Finance Party
under the Finance Documents.


 


40.3                        Stamp Taxes


 


The Parent shall
pay (or cause the relevant Borrower to pay) all stamp, registration,
documentary and other taxes (including any penalties, additions, fines,
surcharges or interest relating thereto) to which any of the Finance Documents
or any judgment given in connection therewith is or at any time may be subject and
shall, from time to time on demand of the Agent, indemnify the Finance Parties
against any liabilities, costs, claims and expenses resulting from any failure
to pay or any delay in paying those taxes. 
The Agent shall be entitled (but not obliged) to pay those taxes
(whether or not they are its primary responsibility) and to the extent that it
does so claim under this Clause 40.3.


 


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40.4                        Compensation


 


The Parent shall,
from time to time on demand of the Agent (and without prejudice to the
provisions of Clause 40.2 (Preservation and
Enforcement Costs) and Clause 40.5 (Amendments
and Waivers)) compensate the Agent at such daily and/or hourly rates
as the Agent shall from time to time reasonably determine for all time expended
by the Agent, its directors, officers and employees, and for all costs and
expenses (including telephone, fax, copying, travel and personnel costs) they
may incur, in connection with the Agent’s taking such action as it may consider
appropriate in connection with:


 


(a)           the granting or proposed granting of any waiver or consent requested
under any of the Finance Documents by the Obligors or any of them;


 


(b)           any actual, potential or suspected breach by an Obligor of any of
its obligations under any of the Finance Documents;


 


(c)                                  the occurrence of any Default; or


 


(d)                                 any amendment or proposed amendment of any of the Finance Documents
requested by the Obligors or any of them.


 


40.5                        Amendments and Waivers


 


If an Obligor
requests any amendment or waiver in accordance with Clause 45 (Amendments), the relevant Obligor shall, on demand of the
Agent, reimburse the Finance Parties for all reasonable costs and expenses
(including legal fees) incurred by any of the Finance Parties in responding to
or complying with such request.


 


40.6                        Management Time of the Agent


 


Any amount payable
to the Agent under this Clause 40 shall include the cost of utilising its
management time or other resources and will be calculated on the basis of such
reasonable daily or hourly rates as it may notify to the Parent and the
Lenders, and is in addition to any fee paid or payable to it under
Clause 17 (Commissions and Fees).


 


40.7                        Lenders’ Indemnity


 


If any Obligor
fails to perform any of its obligations under this Clause 40, each Lender
shall indemnify and hold harmless each of the Agent, the Arrangers and/or the
Security Trustee from and against its Proportion (as determined at all times
for these purposes in accordance with paragraph (c) of the definition
of “Proportion”) of any loss incurred by any of them as a result of such
failure and the relevant Obligor shall forthwith reimburse each Lender for any
payment made by it pursuant to this Clause.


 


40.8                        Value Added Tax


 


(a)                                 All amounts expressed to be payable under any Finance Document by
any Obligor to a Finance Party shall be exclusive of any VAT.  If VAT is chargeable on any supply made by a
Finance Party to any Obligor under any Finance Document (whether that supply is
taxable pursuant to the exercise of an option or otherwise), that Obligor shall
pay to that Finance Party (in addition to and at the same time as paying that
consideration) an amount equal to the amount of the VAT as further
consideration.


 


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(b)           No payment or other consideration to be made or furnished to any
Obligor pursuant to or in connection with any Finance Document may be increased
or added to by reference to (or as a result of any increase in the rate of) any
VAT which shall be or may become chargeable in respect of any taxable supply.


 


(c)           Where a Finance Document requires any party to reimburse a Finance
Party for any costs or expenses, that party shall also pay any amount of those
costs or expenses incurred referable to VAT chargeable thereon.


 


40.9        Indemnity Payments


 


Where under any
Finance Document an Obligor has an obligation to indemnify or reimburse any
Protected Party in respect of any loss or payment, the calculation of the
amount payable by way of indemnity or reimbursement shall take account of the
likely tax treatment in the hands of that Protected Party (as determined by
that Protected Party) of the amount payable by way of indemnity or
reimbursement and of the loss or payment in respect of which that amount is
payable.


 


41.          REMEDIES AND WAIVERS


 


No failure to
exercise, nor any delay in exercising, on the part of the Finance Parties or
any of them, any right or remedy under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right or remedy
prevent any further or other exercise thereof or the exercise of any other
right or remedy.  The rights and remedies
provided in this Agreement are cumulative and not exclusive of any rights or
remedies provided by Law.


 


42.          NOTICES AND DELIVERY OF INFORMATION


 


42.1        Writing


 


Each communication
to be made under any Finance Document shall be made in writing and, unless
otherwise stated, shall be made by fax, telex or letter.


 


42.2        Giving of
Notice


 


Any communication
or document to be made or delivered by one person to another pursuant to any
Finance Document shall in the case of any person other than a Lender (unless
that other person has by 15 days’ written notice to the Agent specified
another address) be made or delivered to that other person at the address
identified with its signature below or, in the case of a Lender, at the address
from time to time designated by it to the Agent for the purpose of the Finance
Documents (or, in the case of a Transferee at the end of the Transfer
Certificate to which it is a party as Transferee) and shall be deemed to have
been made or delivered when despatched (in the case of any communication made
by fax or telex) or (in the case of any communication made by letter) when left
at the address or (as the case may be) 5 Business Days after being
deposited in the post postage prepaid in an envelope addressed to it at that
address provided that any communication or document to be made or delivered to
the Agent shall be effective only when received by the Agent and then only if
the same is expressly marked for the attention of the department or officer
identified with the Agent’s signature below (or such other department or
officer as the Agent shall from time to time specify for this purpose).


 


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42.3        Use of
Websites


 


(a)           An Obligor may satisfy its obligation under any Finance Document to
which it is a party to deliver any information in relation to those Lenders
(the “Website Lenders”) who accept this method of communication by posting this
information onto an electronic website designated by the Parent and the Agent
(the “Designated Website”) if:


 


	
  (i)

  	
   

  	
  the Agent expressly agrees
  (after consultation with each of the Lenders) that it will accept
  communication of the information by this method;

  
	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  both the Parent and the Agent
  are aware of the address of, and any relevant password specifications for,
  the Designated Website; and

  
	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  the information is in a
  format previously agreed between the Parent and the Agent.

  



 


If any Lender (a “Paper Form Lender”) does not agree to
the delivery of information electronically then the Agent shall notify the
Parent accordingly and the Parent shall supply the information to the Agent (in
sufficient copies for each Paper Form Lender) in paper form.  In any event, the Parent shall supply the
Agent with at least one copy in paper form of any information required to be
provided by it.


 


(b)           The Agent shall supply each Website Lender with the address of, and
any relevant password specifications for, the Designated Website following
designation of that website by the Parent and the Agent.


 


(c)           The Parent shall promptly upon becoming aware of its occurrence
notify the Agent if:


 


	
  (i)

  	
   

  	
  the Designated Website cannot
  be accessed due to technical failure;

  
	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  the password specifications
  for the Designated Website change;

  
	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  any new information which is
  required to be provided under this Agreement is posted onto the Designated
  Website;

  
	
   

  	
   

  	
   

  
	
  (iv)

  	
   

  	
  any existing information
  which has been provided under this Agreement and posted onto the Designated
  Website is amended; or

  
	
   

  	
   

  	
   

  
	
  (v)

  	
   

  	
  the Parent becomes aware that
  the Designated Website or any information posted onto the Designated Website
  is or has been infected by any electronic virus or similar software.

  



 


If the Parent notifies the Agent under
paragraph (c)(i) or paragraph (c)(v) above, all information
to be provided by the Parent under this Agreement after the date of that notice
shall be supplied in paper form unless and until the Agent and each Website
Lender is satisfied that the circumstances giving rise to the notification are
no longer continuing.


 


(d)           Any Website Lender may request, through the Agent, one paper copy of
any information required to be provided under this Agreement which is posted
onto the 


 


190





















 


Designated
Website.  The Parent shall comply with
any such request within 10 Business Days.


 


42.4        Electronic
Communication


 


(a)           Any communication to be made between the Agent and a Lender under or
in connection with the Finance Documents may be made by electronic mail or
other electronic means, if the Agent and the relevant Lender:


 


	
  (i)

  	
   

  	
  agree that, unless and until
  notified to the contrary, this is to be an accepted form of communication;

  
	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  notify each other in writing
  of their electronic mail address and/or any other information required to
  enable the sending and receipt of information by that means; and

  
	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  notify each other of any
  change to their address or any other such information supplied by them.

  



 


(b)           Any electronic communication made between the Agent and a Lender
will be effective only when actually received in readable form and in the case
of any electronic communication made by a Lender to the Agent only if it is
addressed in such a manner as the Agent shall specify for this purpose.


 


43.          ENGLISH LANGUAGE


 


Each communication
and document made or delivered by one party to another pursuant to any of the
Finance Documents shall be in the English language or accompanied by a
translation of it into English certified (by an officer of the person making or
delivering the same) as being a true and accurate translation of it.


 


44.          PARTIAL INVALIDITY


 


If, at any time,
any provision of this Agreement is or becomes illegal, invalid or unenforceable
in any respect under the Law of any jurisdiction, such illegality, invalidity
or unenforceability shall not affect:


 


(a)           the legality, validity or enforceability of the remaining provisions
of this Agreement; or


 


(b)           the legality, validity or enforceability of such provision under the
Law of any other jurisdiction.


 


45.          AMENDMENTS


 


45.1        Amendments


 


Except as provided
in Clauses 45.2 (Consent), 45.3
(Technical Amendments) and 45.4 (Guarantees and Security), the Agent, if it has the prior
written consent of an Instructing Group, and the Obligors affected thereby, may
from time to time agree in writing to amend this Agreement or to waive,
prospectively or retrospectively, any of the requirements of this


 


191

















 


Agreement and any
amendments or waivers so agreed shall be binding on all the Finance Parties and
the Obligors.


 


45.2                        Consent


 


(a)           An amendment or waiver relating to the following matters shall not
be made without the prior written consent of all the Lenders:


 


	
  (i)

  	
   

  	
  a reduction in the proportion
  of any amount received or recovered (whether by way of set-off, combination
  of accounts or otherwise) in respect of any amount due from an Obligor under
  this Agreement to which any Lender is entitled;

  
	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  a decrease in any Applicable
  Margin for, or the principal amount of, any Advance, any Documentary Credit
  or any interest payment, fees or other amounts due under this Agreement to
  any Lender from an Obligor or any other party to this Agreement (other than
  the result of any amendment or modification to Clause 24 (Financial Condition) where the primary
  purpose of such amendment or modification (as determined in good faith by the
  Parent and the Agent) was not to decrease the pricing pursuant to this
  Agreement);

  
	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  any change in the currency of
  account;

  
	
   

  	
   

  	
   

  
	
  (iv)

  	
   

  	
  the deferral of the date for
  payment of any principal, interest, fee or any other amount due under this
  Agreement to any Lender from an Obligor or any other party to this Agreement;

  
	
   

  	
   

  	
   

  
	
  (v)

  	
   

  	
  the deferral of any Final
  Maturity Date, any Termination Date or any Expiry Date;

  
	
   

  	
   

  	
   

  
	
  (vi)

  	
   

  	
  any reduction to the
  percentage set forth in the definition of Instructing Group as included on
  the date of this Agreement (it being understood that, with the consent of the
  Instructing Group, additional extensions of credit pursuant to this Agreement
  may be included in the determination of Instructing Group on substantially
  the same basis on the extensions of the Term Facilities and the Revolving
  Facilities as at the Effective Date);

  
	
   

  	
   

  	
   

  
	
  (vii)

  	
   

  	
  any amendments, modifications
  or waiver of any provision to this Clause;

  
	
   

  	
   

  	
   

  
	
  (viii)

  	
   

  	
  consent to the assignment or
  transfer by the Parent or any other Obligor (other than to another Obligor or
  another Wholly-Owned Subsidiary of the Parent which acceded as an Acceding
  Guarantor) of any of its rights and obligations under this Agreement; and

  
	
   

  	
   

  	
   

  
	
  (ix)

  	
   

  	
  a change to any provision
  which contemplates the need for the consent or approval of all the Lenders.

  



 


(b)           Notwithstanding paragraph (a) above, an amendment or
waiver relating to the following matters shall not be made without the prior
written consent of each Lender affected thereby:


 


192





















 


	
  (i)

  	
   

  	
  any increase in the
  Commitment of such Lender (it being understood that waivers or modifications
  of conditions precedent, covenants, Defaults or Events of Default or of a
  mandatory reduction in the Available Facility shall not constitute an
  increase of the Commitment of any Lender, and that an increase in the
  available portion of any Commitment of any Lender shall not constitute an
  increase in the Commitment of such Lender);

  
	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  in relation to any Swingline
  Facility Lender every provision of Clause 6 (Swingline Facilities) or alter its rights or obligations
  with respect to Swingline Facility Advances; and

  
	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  in relation to the L/C Bank
  every provision of Clause 5 (Documentary
  Credits) or alter its rights or obligations with respect to any
  Documentary Credits issued by it.

  



 


(c)           Notwithstanding
paragraph (a) above, an amendment or waiver relating to the following
matters shall not be made without the prior written consent of the Majority
Lenders of the respective Facility:


 


(i)            any amendment or waiver which would result in a Lender of such
Facility being allocated a lesser prepayment, repayment (or commitment
reduction) as a result of any alteration of the required application of any
prepayments or repayments (or commitment reductions), as between the various
Facilities, pursuant to Clauses 9 (Repayment
of Revolving and Swingline Facility Outstandings), 10 (Repayment of Term Facility Outstandings),
12 (Voluntary Prepayment) or 13 (Mandatory Prepayment) (although the
Instructing Group may (1) waive, in whole or in part, any such prepayment,
repayment or commitment reduction, so long as the application, as amongst the
various Facilities, of any such prepayment, repayment or commitment reduction
which is still required to be made is not altered and (2) agree to the
inclusion of additional extensions of credit made after the Initial Borrowing
Date (and not pursuant to Commitments as in effect on the Initial Borrowing
Date) on substantially the same basis as the other extensions of credit,
pursuant to Clauses 11.1 (Voluntary
Cancellation) and/or 12.1 (Voluntary
Prepayment); and


 


(ii)           any amendment to the definition of “Majority Lenders”; and


 


(d)           Notwithstanding paragraph (a) above, an amendment or
waiver which would amend, modify or waive any Scheduled Repayment applicable to
the respective Facility shall not be made without the prior written consent of
the Supermajority Lenders of the respective Facility (except that no such
consent of the Supermajority Lenders of the affected Facility shall be required
in connection with any increase in the Scheduled Repayments of such affected
Facility (including, without limitation, as a result of the making of
additional Advances pursuant to a given Facility which has the effect of
increasing the Scheduled Repayments of such affected Facility on a
proportionate basis)).


 


193





















 


45.3        Technical
Amendments


 


Notwithstanding
Clause 45.1 (Amendments), the Agent may
determine administrative matters and make technical amendments arising out of
manifest errors on the face of this Agreement, where such amendments would not
prejudice or otherwise be adverse to the position of any Lender under this
Agreement, without reference to the Lenders.


 


45.4        Guarantees
and Security


 


A waiver of
issuance or the release of any Guarantor from any of its obligations under
Clause 30 (Guarantee and Indemnity) other
than in accordance with the terms of this Agreement or a release of all or
substantially all of the Collateral subject to any Security under the Security
Documents other than in accordance with the terms of this Agreement shall
require prior written consent of all the Lenders.


 


45.5        Amendments
affecting the Agent


 


Notwithstanding any
other provision of this Agreement, the Agent shall not be obliged to agree to
any amendment or waiver if the same would:


 


(a)           amend or waive any provision of Clauses 31 (Agent and Obligors’ Agent), Clause 40 (Costs and Expenses) or this Clause 45; or


 


(b)           otherwise amend or waive any of the Agent’s rights under this
Agreement or subject the Agent to any additional obligations under this
Agreement.


 


45.6        Amendments
affecting the Security Trustee


 


Notwithstanding any
other provision of this Agreement, the Security Trustee shall not be obliged to
agree to any amendment or waiver if the same would:


 


(a)           amend or waive any provision of Clauses 31 (Agent and Obligors’ Agent), Clause 40 (Costs and Expenses) or this Clause 45; or


 


(b)           otherwise amend or waive any of the Security Trustee’s rights under
this Agreement or subject the Security Trustee to any additional obligations
under this Agreement.


 


45.7        Replacement
of non-Instructing Group Lender


 


If, in connection
with any proposed change, waiver, discharge or termination to any of the
provisions of this Agreement as contemplated by paragraph (a) of
Clause 45.2 (Consent), the
consent of the Instructing Group is obtained but the consent of one or more of
such other Lenders whose consent is required is not obtained, then the Existing
Borrower shall have the right (so long as all non-consenting Lenders whose
individual consent is required are treated as described in either paragraphs (a) or
(b) below) to either:


 


(a)           replace each such non-consenting Lender or Lenders (or, at the
option of the Existing Borrower if the respective Lender’s consent is required
with respect to less than all Outstandings (or related Commitments), to replace
only the respective Commitments and/or Outstandings of the respective
non-consenting Lender which gave rise to the need to obtain such Lender’s
individual consent) with one or more members of the Instructing Group pursuant
to Clause 21.1 (Replacement of Lenders)
so long as at the 


 


194





















 


time of such replacement, each such member of
the Instructing Group consents to the proposed change, waiver, discharge or
termination; or


 


(b)           terminate each Revolving Facility Commitment and/or Incremental
Revolving Facility Commitment of such non-consenting Lender’s Revolving
Facility Commitment (if such Lender’s consent is required as a result of its
Revolving Facility Commitment and/or Incremental Revolving Facility Commitment)
and/or repay each Term Facility Outstandings of such Lender which gave rise to
the need to obtain such Lender’s consent, in accordance with Clauses 11.1
(Voluntary Cancellation) and/or
12.1 (Voluntary Prepayment),
provided that, unless the Commitments
terminated, and Outstandings repaid, pursuant to this paragraph (b) are
immediately replaced in full at such time through the addition of new Lenders
or the increase of the Commitments and/or Outstandings of remaining lenders
(who in each case must specifically consent thereto), then in the case of any
action pursuant to this paragraph (b) the Instructing Group
(determined both (x) before giving effect to the proposed action and (y) as
if the Outstandings and Commitments being terminated (and not replaced) were
not outstanding) shall specifically consent thereto,


 


for the avoidance
of doubt, the Existing Borrower shall not have the right to replace a Lender,
terminate its Revolving Facility Commitment or repay its Outstandings solely as
a result of the exercise of such Lender’s rights (and the withholding of any
required consent by such Lender) pursuant to paragraph (b) of
Clause 45.2 (Consent).


 


46.          THIRD PARTY RIGHTS


 


(a)           A person which is not a party to this Agreement (a “third party”) shall
have no right to enforce any of its provisions except that:


 


	
  (i)

  	
   

  	
  this shall not affect any
  right or remedy of a third party which it would have had if the Contracts
  (Rights of Third Parties) Act 1999 had not come into effect; and

  
	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  each of Clause 5.9 (Exclusion of Liability),
  Clause 18.2 (Tax Indemnity),
  Clause 19 (Increased Costs)
  and Clause 31.9(b) (Exclusion of
  Liability) shall be enforceable by any third party referred to in
  such clause as if such third party were a party to this Agreement.

  



 


(b)           The parties to this Agreement may without the consent of any third
party vary or rescind this Agreement.


 


47.          COUNTERPARTS


 


This Agreement may
be executed in any number of counterparts and all of such counterparts taken
together shall be deemed to constitute one and the same instrument.


 


48.          GOVERNING LAW


 


This Agreement
shall be governed by, and construed in accordance with, English Law.


 


195

















 


49.          JURISDICTION


 


49.1        Courts of
England


 


Each of the parties
to this Agreement irrevocably agrees for the benefit of each of the Finance
Parties that the courts of England shall have exclusive jurisdiction to hear and
determine any suit, action or proceedings, and to settle any disputes, which
may arise out of or in connection with this Agreement (respectively “Proceedings” and “Disputes”) and, for such purposes,
irrevocably submits to the jurisdiction of such courts.


 


49.2        Waiver


 


Each of the
Obligors irrevocably waives any objection which it might now or hereafter have
to Proceedings being brought or Disputes settled in the courts of England and
agrees not to claim that any such court is an inconvenient or inappropriate
forum.


 


49.3        Service
of Process


 


Each of the
Obligors which is not incorporated in England agrees that the process by which
any Proceedings are begun may be served on it by being delivered in connection
with any Proceedings in England, to Buhrmann
UK Limited at Tameside Drive, Holford, Birmingham, West Midlands B6 7AY
or its registered office for the time being. 
If the appointment of the person mentioned in this Clause 49.3
ceases to be effective in respect of any of the Obligors the relevant Obligor shall
immediately appoint a further person in England to accept service of process on
its behalf in England and, failing such appointment within 15 days, the
Agent shall be entitled to appoint such person by notice to the relevant
Obligor. Nothing contained in this Agreement shall affect the right to serve
process in any other manner permitted by Law.


 


49.4        Proceedings
in Other Jurisdictions


 


Nothing in
Clause 49.1 (Courts of England) shall (and
shall not be construed so as to) limit the right of the Finance Parties or any
of them to take Proceedings against any of the Obligors in any other court of
competent jurisdiction nor shall the taking of Proceedings in any one or more
jurisdictions preclude the taking of Proceedings in any other jurisdiction
(whether concurrently or not) if and to the extent permitted by applicable Law.


 


49.5        General
Consent


 


Each of the
Obligors consents generally in respect of any Proceedings to the giving of any
relief or the issue of any process in connection with such Proceedings including
the making, enforcement or execution against any property whatsoever
(irrespective of its use or intended use) of any order or judgment which may be
made or given in such Proceedings.


 


49.6        Waiver of
Immunity


 


To the extent that
any Obligor may in any jurisdiction claim for itself or its assets or revenues
immunity from suit, execution, attachment (whether in aid of execution, before
judgment or otherwise) or other legal process and to the extent that in any
such jurisdiction there may be attributed to itself, its assets or revenues
such immunity (whether or not claimed), such Obligor irrevocably agrees not to
claim, and irrevocably waives, such immunity to the full extent permitted by
the laws of such jurisdiction.


 


196

















 


49.7        Waiver of
Jury Trial


 


EACH OBLIGOR HEREBY
WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDINGS ANYWHERE
ARISING OUT OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.


 


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


 


197

















 


SCHEDULE 1


 


PART I - LENDERS AND COMMITMENTS


 


SECTION A


 


	
  Lender

  	
   

  	
  Revolving Facility 

  Commitment 

  (€)

  	
   

  	
  A Facility 

  Commitment 

  (€)

  	
   

  	
  B1 Facility 

  Commitment 

  ($ )

  	
   

  	
  B2 Facility 

  Commitment 

  (€)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Deutsche
  Bank AG London

  	
   

  	
  37,925,000

  	
   

  	
  14,575,000

  	
   

  	
  380,000,000

  	
   

  	
  50,000,000

  	
   

  
	
  ABN
  AMRO Bank N.V.

  	
   

  	
  37,925,000

  	
   

  	
  14,575,000

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  ING
  Bank N.V.

  	
   

  	
  33,250,000

  	
   

  	
  16,500,000

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Fortis
  Capital Corp.

  	
   

  	
  33,250,000

  	
   

  	
  16,500,000

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Coöperatieve
  Centrale

  Raiffeisen-Boerenleenbank 

  B.A.

  	
   

  	
  26,750,000

  	
   

  	
  13,250,000

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  U.S.
  Bank, N.A.

  	
   

  	
  10,000,000

  	
   

  	
  5,000,000

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  The
  Bank of New York

  	
   

  	
  10,000,000

  	
   

  	
  5,000,000

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Scotiabank
  Europe plc

  	
   

  	
  10,000,000

  	
   

  	
  5,000,000

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Credit
  Industriel et 

  Commercial

  	
   

  	
  10,000,000

  	
   

  	
  5,000,000

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Natexis
  Banques Populaires

  	
   

  	
  6,000,000

  	
   

  	
  3,000,000

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  National
  City Bank

  	
   

  	
  6,250,000

  	
   

  	
  6,250,000

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Raiffeisen
  Zentralbank 

  Österreich 

  Aktiengesellschaft

  	
   

  	
  7,000,000

  	
   

  	
  7,000,000

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Banque
  LBLux S.A.

  	
   

  	
  6,650,000

  	
   

  	
  3,350,000

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  National
  Bank of Egypt

  International Limited

  	
   

  	
  10,000,000

  	
   

  	
  5,000,000

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Bank
  of Montreal

  	
   

  	
  10,000,000

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
   

  	
   

  	
  255,000,000

  	
   

  	
  120,000,000

  	
   

  	
  380,000,000

  	
   

  	
  50,000,000

  	
   

  



 


198

















 


SECTION B


 


	
  Lender

  	
   

  	
  Swingline Facility 

  Commitment 

  (€)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Deutsche
  Bank AG 

  London

  	
   

  	
  85,000,000

  	
   

  
	
   

  	
   

  	
  85,000,000

  	
   

  



 


199

















 


PART II - ORIGINAL GUARANTORS


 


	
  U.S.
  Guarantors

  	 

	
   

  	 

	
  1.

  	
   

  	
  ASAP Software
  Express, Inc.

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  BTOP USA Corp.

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  BTOPI Holding
  (U.S.)

  
	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Buhrmann Swaps, Inc.

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Corporate Express
  Document & Print Management, Inc.

  
	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Corporate Express
  Office Products, Inc.

  
	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  CE Philadelphia
  Real Estate, Inc.

  
	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Corporate Express
  Promotional Marketing, Inc.

  
	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  Corporate Express
  Real Estate, Inc.

  
	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  Corporate Express
  of Texas, Inc.

  
	
   

  	
   

  	
   

  
	
  11.

  	
   

  	
  Corporate Express, Inc.

  
	
   

  	
   

  	
   

  
	
  12.

  	
   

  	
  License
  Technologies Group, Inc.

  
	
   

  	
   

  	
   

  
	
  13.

  	
   

  	
  Moore Labels, Inc.

  
				



 


	
  Dutch
  Guarantors

  
	
   

  
	
  1.

  	
   

  	
  Buhrmann
  Financieringen B.V.

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Buhrmann Fined B.V.
  

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Buhrmann N.V.

  
	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Buhrmann II B.V.

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Buhrmann
  International B.V.

  
	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Buhrmann
  Nederland B.V.

  
	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  Buhrmann
  Nederland Holding B.V.

  
	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Tetterode-Nederland
  B.V.

  



 


200

















 


	
  9.

  	
   

  	
  Veenman B.V.
  (formerly known as Corporate Express Document Automatisering B.V.)

  
	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  Buhrmann Office
  Products Nederland B.V.

  



 


	
  Belgian
  Guarantors

  
	
   

  
	
  Buhrmann Shared
  Service Center N.V. (formerly known as Buhrmann Europcenter N.V.)

  



 


	
  Luxembourg
  Guarantors

  
	
   

  
	
  Buhrmann
  Luxembourg S.A.R.L.

  



 


201

















 


SCHEDULE 2

FORM OF TRANSFER CERTIFICATE


 


To:          Deutsche
Bank AG, London Branch as Agent


 


DEED
OF TRANSFER AND ACCESSION


 


This Deed of
Transfer and Accession (being the “Transfer
Certificate” referred to in the Facilities Agreement referred to
below) relates to:


 


	
  (a)

  	
   

  	
  the senior
  facilities agreement (as from time to time amended, varied, novated or
  supplemented, the “Facilities Agreement”)
  dated 23 December 2003 whereby certain facilities in a maximum aggregate
  amount of €730,000,000 were
  made available to Buhrmann US Inc. as Existing Borrower under the guarantee
  of the Guarantors, by a group of banks and other financial institutions on
  whose behalf Deutsche Bank AG, London Branch acted as Agent in connection
  therewith; and

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  the intercreditor
  deed (as from time to time, amended, varied, novated or supplemented, the “Intercreditor Deed”) dated 23
  December 2003 between, inter alios,
  the Parent, the Existing Borrower, the Agent, the Security Trustee, the
  Lenders as senior lenders, the Original Obligors as original obligors, the
  Intergroup Creditors named therein as intergroup creditors and the Intergroup
  Debtors named therein as intergroup debtors.

  
	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  Terms defined in
  the Facilities Agreement and/or, as the case may be, Intercreditor Deed
  shall, subject to any contrary indication, have the same meanings in this
  Deed of Transfer and Accession. The terms “Lender”, “Transferee”, “Lender’s
  Participation” and “Portion Transferred” are defined in the Schedule to
  this Deed of Transfer and Accession.

  



 


2.             The Lender:


 


	
  (a)

  	
   

  	
  confirms that the
  details in the Schedule to this Deed of Transfer and Accession are an
  accurate summary of the Lender’s participation in the Facilities Agreement
  (and, if relevant, the relevant Incremental Facility Commitment Agreement)
  and the Interest Periods or Terms (as the case may be) for existing Advances
  or, as the case may be, Tranches as at the Effective Date; and

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  requests the Transferee
  to accept and procure the transfer to the Transferee of the Portion
  Transferred by countersigning and delivering this Deed of Transfer and
  Accession to the Agent at its address for the service of notices designated
  to the Agent in accordance with the Facilities Agreement.

  



 


	
  3.

  	
   

  	
  The Transferee
  hereby requests the Agent to accept this Deed of Transfer and Accession as
  being delivered to the Agent pursuant to and for the purposes of
  Clause 39.5 (Transfer Certificate) of
  the Facilities Agreement so as to take effect in accordance with the terms of
  it on the Transfer Date or on such later date as may be determined in
  accordance with the terms of it.

  



 


202

















 


	
  4.

  	
   

  	
  The Transferee
  confirms that it has received a copy of the Facilities Agreement (and, if
  relevant, the relevant Incremental Facility Commitment
  Agreement(s) identified in the Schedule to this Agreement) and the
  Intercreditor Deed together with such other information as it has required in
  connection with this transaction and that it has not relied and will not rely
  on the Lender to check or enquire on its behalf into the legality, validity,
  effectiveness, adequacy, accuracy or completeness of any such information and
  further agrees that it has not relied and will not rely on the Lender to
  assess or keep under review on its behalf the financial condition,
  creditworthiness, condition, affairs, status or nature of any Obligor.

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  The Transferee
  undertakes with the Lender and each of the other parties to the Facilities
  Agreement that it will perform in accordance with their terms all those
  obligations which by the terms of the Facilities Agreement (and, if relevant,
  the Incremental Facility Commitment Agreement(s) identified in the
  Schedule to this Deed of Transfer and Accession) will be assumed by it
  after delivery of this Deed of Transfer and Accession to the Agent and
  satisfaction of the conditions (if any) subject to which this Deed of
  Transfer and Accession is expressed to take effect.

  
	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  The Lender makes
  no representation or warranty and assumes no responsibility with respect to
  the legality, validity, effectiveness, adequacy or enforceability of the
  Facilities Agreement (and, if relevant, the Incremental Facility Commitment
  Agreement(s) identified in the Schedule to this Deed of Transfer
  and Accession), the Intercreditor Deed, any other Finance Document or other
  document relating to it and assumes no responsibility for the financial
  condition of any Obligor or for the performance and observance by any Obligor
  of any of its obligations under the Facilities Agreement (and, if relevant,
  the Incremental Facility Commitment Agreement(s) identified in the
  Schedule to this Deed of Transfer and Accession), the Intercreditor
  Deed, any other Finance Document or any other document relating to it and any
  and all such conditions and warranties, whether express or implied by Law or
  otherwise, are excluded.

  
	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  The Lender gives
  notice that nothing in this Deed of Transfer and Accession, in the Facilities
  Agreement (and, if relevant, the Incremental Facility Commitment
  Agreement(s) identified in the Schedule to this Deed of Transfer
  and Accession), the Intercreditor Deed or any other Finance Document (or
  other document relating to it) shall oblige the Lender (a) to accept a
  re-transfer from the Transferee of the whole or any part of its rights,
  benefits and/or obligations under the Facilities Agreement (and, if relevant,
  the Incremental Facility Commitment Agreement(s) identified in the
  Schedule to this Agreement) or the Intercreditor Deed transferred
  pursuant to this Deed of Transfer and Accession or (b) to support
  any losses directly or indirectly sustained or incurred by the Transferee for
  any reason whatsoever (including the failure by any Obligor or any other
  party to the Facilities Agreement (and, if relevant, the Incremental Facility
  Commitment Agreement(s) identified in the Schedule to this Deed of
  Transfer and Accession), the Intercreditor Deed or any other Finance Document
  (or other document relating to it) to perform its obligations under any such
  document) and the Transferee acknowledges the absence of any such obligation
  as is referred to in (a) and (b) above.

  



 


203

















 


	
  8.

  	
   

  	
  This Deed of
  Transfer and Accession may be executed in any number of counterparts and by
  the different parties on separate counterparts, each of which when executed
  shall be an original, but all counterparts shall together constitute one and
  the same instrument.

  
	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  This Deed of Transfer
  and Accession and the rights, benefits and obligations of the parties under
  this Deed of Transfer and Accession shall be governed by and construed in
  accordance with English Law.

  
	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  [Name of Transferee] of [address of transferee] hereby agrees
  with each person who is or who becomes a party to the Intercreditor Deed in
  accordance with the terms thereof that with effect on and from the date
  hereof it will be bound by the Intercreditor Deed as a Senior Lender as if it
  had been party to the Intercreditor Deed in such capacity.

  



 


IN
WITNESS whereof, this Deed has been executed as a deed by the
parties hereto, and is delivered on the date written above.


 


204














 


The Schedule


 


	
  1.

  	
   

  	
  Lender:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Transferee:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Transfer
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Lender’s
  Participation in Term Facilities

  	
   

  	
  Portion
  Transferred

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (a)

  	
   

  	
  Lender’s
  Available A Facility Commitment*

  	
   

  	
  (a)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  Lender’s
  Available D1 Facility Commitment*

  	
   

  	
  (b)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  Lender’s
  Available D2 Facility Commitment*

  	
   

  	
  (c)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (d)

  	
   

  	
  Lender’s
  Available Incremental Term Facility Commitment*

  	
   

  	
  (d)

  



 


	
  5.

  	
   

  	
  Lender’s
  Participation in Term Facility Outstandings

  	
   

  	
  Interest
  Period

  	
   

  	
  Portion
  Transferred

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (a)

  	
   

  	
  A Facility
  Advances

  	
   

  	
  (a)

  	
   

  	
  (a)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  D1 Facility
  Advances

  	
   

  	
  (b)

  	
   

  	
  (b)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  D2 Facility
  Advances

  	
   

  	
  (c)

  	
   

  	
  (c)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (d)

  	
   

  	
  Incremental Term
  Facility Advances

  	
   

  	
  (d)

  	
   

  	
  (d)

  



 


	
  6.

  	
   

  	
  [(a)]

  	
   

  	
  Lender’s
  Revolving Facility Commitment

  	
  Portion
  Transferred

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [(b)

  	
   

  	
  Lender’s
  Swingline Facility Commitment

  	
  Portion
  Transferred 100percent.]

  
							



 


	
  7.

  	
   

  	
  [(a)]

  	
   

  	
  Lender’s
  Participation in Revolving Facility Outstandings 

  	
  Term

  	
  Portion
  Transferred

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [(b)

  	
   

  	
  Lender’s
  Participation in Swingline Facility Outstandings

  	
   

  	
  Portion
  Transferred

  



 


	
  [8.

  	
  Documentary
  Credits Issued

  	
  Term
  and Expiry

  Date

  	
   

  	
  Portion
  Transferred]

  



 






	
  *

  	
   

  	
  Details of the
  Lender’s Available Commitment should not be completed after the applicable
  Termination Date.

  



 


205

















 


	
  [Lender]

  	
  [Transferee]

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Date:

  	
   

  
							



 


Administrative
Details of Transferee and its Facility Office


 


	
  Facility Office
  Address:

  	
   

  
	
   

  	
   

  
	
  Contact Name:

  	
   

  
	
   

  	
   

  
	
  Account for
  Payments:

  	
   

  
	
   

  	
   

  
	
  Fax:

  	
   

  
	
   

  	
   

  
	
  [Telex:]

  	
   

  
	
   

  	
   

  
	
  Telephone:

  	
   

  



 


206

















 


SCHEDULE 3


 


PART I - CONDITIONS PRECEDENT TO FIRST
UTILISATION


 


	
  1.

  	
  Corporate
  Documents

  



 


In relation to each
Original Obligor:


 


	
  (a)

  	
   

  	
  a copy of its up
  to date constitutional documents and, if applicable, a good standing
  certificate;

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  a copy of a board
  resolution of such Original Obligor approving the execution, delivery and
  performance of the Finance Documents to which it is party and the terms and
  conditions of it and authorising a named person or persons to sign the
  Finance Documents to which it is party and any documents to be delivered by
  such Original Obligor pursuant to it;

  
	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  a copy of a
  shareholders’ resolution of all the shareholders of such Original Obligor
  approving the execution, delivery and performance of the Finance Documents to
  which it is party and the terms and conditions to it, and in relation to the
  Belgian Guarantor, evidence of due filing of an extract of each shareholders’
  resolution with the clerk of the relevant commercial court; and

  
	
   

  	
   

  	
   

  
	
  (d)

  	
   

  	
  a duly completed
  certificate of a duly authorised officer of such Original Obligor in the form
  attached in Part II of Schedule 3 (Form of
  Certificate of Obligor).

  



 


2.                                   Authorisations and Clearances


 


A copy of each Necessary
Authorisation as is, in the opinion of counsel to the Lenders, necessary to
render the Finance Documents to which each Original Obligor is party legal,
valid, binding and enforceable, to make the Finance Documents to which each
Original Obligor is party admissible in evidence in such Original Obligor’s
jurisdiction of incorporation and in England and to enable such Original
Obligor to perform its obligations thereunder.


 


	
  3.

  	
  Financial
  Statements

  



 


Copies of:


 


	
  (a)

  	
   

  	
  the Original
  Financial Statements;

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  the Agreed
  Business Plan; and

  
	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  the Projections
  for the current financial year.

  



 


	
  4.

  	
  Fees

  



 


Copies of the Fee
Letters (each duly executed) and evidence that all fees and expenses (including
legal fees) payable under this Agreement or in connection with this Agreement
as 


 


207

















 


at the Initial
Borrowing Date have been paid or, as the case may be, will be paid by or on the
Initial Borrowing Date.


 


5.                                   Finance Documents


 


Original duly
executed copies of:


 


	
  (a)

  	
   

  	
  this Agreement;

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  the Security
  Documents listed in Part III of Schedule 3 (Security Documents) (other than the
  mortgages referred to in paragraph 3 of Section A of Part III of
  Schedule 3 (Mortgage over Real
  Property located in U.S.A.)), together with all documents required
  to be delivered pursuant thereto;

  
	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  the Intercreditor
  Deed;

  
	
   

  	
   

  	
   

  
	
  (d)

  	
   

  	
  the Hedging
  Letter; and

  
	
   

  	
   

  	
   

  
	
  (e)

  	
   

  	
  the agreed form
  syndication letter between the Arrangers, the Parent and the Existing
  Borrower.

  



 


6.                                   Process Agent


 


Written
confirmation from the process agent referred to in Clause 49.3 (Service of Process) that it accepts its appointment as
process agent.


 


7.                                   Existing Liens and Indebtedness


 


Evidence
satisfactory to the Agent that:


 


	
  (a)

  	
   

  	
  all Existing
  Liens and Existing Indebtedness not permitted by the Finance Documents to
  subsist beyond the Initial Borrowing Date have been, or will promptly on the
  making of the first Advance under this Agreement be, discharged or repaid;
  and

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  all intra-group
  loans made or subsisting between Obligors or made to any Obligor by another
  member of the Group have been subordinated to the Agent’s satisfaction.

  



 


8.                                   Legal Opinions


 


An opinion of:


 


(a)                               White &
Case, legal advisers to the Agent and the Arrangers on matters of English law;


 


(b)                               Pillsbury Winthrop, legal advisers to
the Original Obligors on matters of Delaware law and New York law;


 


(c)                               General
Counsel, Thomas F. Cullen, to the Existing Borrower on matters of Delaware law;


 


(d)                               Nauta Dutilh, legal advisers to
the Agent and the Arrangers on matters of the law of The Netherlands;


 


208

















 


(e)                               Allen &
Overy, legal advisers to the Original Obligors on matters of the law of The
Netherlands;


 


(f)                                 White &
Case, legal advisers to the Agent and the Arrangers on matters of the law of
the Kingdom of Belgium;


 


(g)                              Allen &
Overy, legal advisers to the Original Obligors on matters of the law of
Luxembourg; and


 


(h)                             Allens
Arthur Robinson, legal advisers to the Agent and the Arrangers on matters of
the laws of the State of New South Wales, Australia and the Commonwealth of
Australia,


 


in each case
addressed to the Finance Parties.


 


9.                                   Rating


 


Evidence
satisfactory to the Agent that the Group has a long term rating of at least B+
by S&P and Ba3 by Moody’s.


 


10.                            Employee Benefit Plans


 


Copies of:


 


	
  (a)

  	
   

  	
  all Plans;

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  for each Plan
  that is required to file an annual report on Internal Revenue Service
  Form 5500-series, the most recent such report (including, to the extent
  required, the related financial and actuarial statements and opinions and
  other supporting statements, certifications, schedules and information);

  
	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  for each Plan
  that is a “single-employer plan” as defined in Section 4001(a)(15) of
  ERISA, the most recently prepared actuarial valuation therefor;

  
	
   

  	
   

  	
   

  
	
  (d)

  	
   

  	
  any other
  “employee benefit plans” as defined in Section 3(3) of ERISA; and

  
	
   

  	
   

  	
   

  
	
  (e)

  	
   

  	
  any other
  material agreements, plans or arrangements, with or for the benefit of
  current or former employees of any member of the Group or any ERISA Affiliate
  (provided that the foregoing shall apply in the case of any multi-employer
  plan, as defined in Section 4001(a)(3) of ERISA, only to the extent
  that any document described in it is in the possession of a member of the
  Group or any ERISA Affiliate or reasonably available to it from the sponsor
  or trustee of any such plan).

  
	
   

  	
   

  	
   

  
	
  11.

  	
   

  	
  Indebtedness
  to be Refinanced

  



 


Evidence satisfactory to the
Agent acting reasonably that as at the Initial Borrowing Date:


 


(a)                               the
Group shall have no outstanding Preferred Stock or Indebtedness other than:


 


(i)                                    Parent
Preference Shares A outstanding on 30 September 2003;


 


209

















 


	
  (ii)

  	
   

  	
  any outstanding
  Parent Preference Shares B issued after 30 September 2003 in
  accordance with the terms governing such Parent Preference Shares B as in
  effect on 30 September 2003;

  
	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  Parent Preference
  Shares C outstanding on 30 September 2003;

  
	
   

  	
   

  	
   

  
	
  (iv)

  	
   

  	
  Indebtedness
  pursuant to or in respect of any of the Finance Documents;

  
	
   

  	
   

  	
   

  
	
  (v)

  	
   

  	
  Indebtedness of
  the Existing Borrower and the Guarantors pursuant to the Senior Subordinated
  Notes or subordinated guarantees thereof in an aggregate not exceeding
  $350,000,000;

  
	
   

  	
   

  	
   

  
	
  (vi)

  	
   

  	
  Senior
  Subordinated Convertible Bonds in an aggregate principal amount of
  €114,819,000;

  
	
   

  	
   

  	
   

  
	
  (vii)

  	
   

  	
  approximately
  €85,000,000 of other existing Indebtedness (all of such Indebtedness as
  specifically listed as Third Party Existing Indebtedness in Section A (Third Party Existing Indebtedness) of
  Part II of Schedule 10 (Existing
  Indebtedness); and

  
	
   

  	
   

  	
   

  
	
  (viii)

  	
   

  	
  intercompany
  Indebtedness between one or more of the Obligors (all of such Indebtedness as
  specifically listed as Intercompany Existing Indebtedness in Section B (Intercompany Existing Indebtedness) of
  Part II of Schedule 10 (Existing
  Indebtedness);

  



 


	
  (b)

  	
   

  	
  (i)

  	
   

  	
  the total
  commitments in respect of the Indebtedness to be Refinanced shall have been
  terminated, and all loans with respect thereto shall have been repaid in
  full, together with interest thereon, all letters of credit issued thereunder
  shall have been terminated (or, in the case of letters of credit issued
  pursuant to, or existing under, the Existing Credit Agreement and outstanding
  on the Initial Borrowing Date, assumed as Existing Documentary Credits) and
  all other amounts owing pursuant to the Indebtedness to be Refinanced shall
  have been repaid in full and all documents in respect of the Indebtedness to
  be Refinanced and all guarantees with respect thereto shall have been
  terminated (except as to indemnification provisions contained therein which
  by their express terms are intended to survive such termination and as are
  reasonably satisfactory to the Agent and the Instructing Group) and to be of
  no further force and effect; and

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (ii)

  	
   

  	
  the creditors in
  respect of the Indebtedness to be Refinanced shall have terminated and
  released all security interests and Liens on the assets owned by the Parent
  and its Subsidiaries; and

  



 


(c)                                  the
aggregate amount needed to effect the refinancing of the Indebtedness to be
Refinanced, and to pay fees and expenses in connection with the Transaction,
shall not exceed the aggregate amount of the A Facility, the D Facilities, the
Revolving Facility and the Senior Subordinated Convertible Bonds.


 


12.                            Document of title to share capital of CEAL


 


Evidence
satisfactory to the Agent that Buhrmann International B.V. is the legal and
beneficial owner of at least 52 per cent. of the issued share capital of
CEAL.


 


210

















 


PART II - FORM OF CERTIFICATE OF
OBLIGOR


 


To:                              Deutsche
Bank AG, London Branch (as Agent)


 


We refer to the
€730,000,000 senior facilities agreement (the “Facilities Agreement”) dated 23 December 2003 and made
between Buhrmann N.V. as Parent, Buhrmann US Inc. as Existing Borrower, the
parties named therein as Original Guarantors, Deutsche Bank AG, London Branch
and ABN AMRO Bank N.V. as Arrangers, Deutsche Bank AG, London Branch as Agent,
Deutsche Bank AG, London Branch as Security Trustee and the financial and other
institutions named in it as Lenders. 
Terms defined in the Facilities Agreement shall have the same meanings
in this Agreement.


 


I, [name], a Director of [name of Obligor] of [address] (the “Company”)


 


CERTIFY that:


 


	
  (a)

  	
   

  	
  attached to this
  Certificate marked “A” are true,
  complete and up-to-date copies of all documents which contain or establish or
  relate to the constitution of the Company [and
  if the company is incorporated in a jurisdiction with a concept of good
  standing, a good standing certificate in respect of it];

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  attached to this
  Certificate marked “B” is a
  true, and complete copy of [resolutions
  duly passed] at [a
  meeting of the Board of Directors and/or Shareholders]
  of the Company duly convened and held on [·]
  approving the Finance Documents to which the Company is a party and
  authorising their execution, signature, delivery and performance and such
  resolutions have not been amended, modified or revoked and are in full force
  and effect;

  
	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  [attached
  to this Certificate and marked “C”
  is a true, and complete copy of all the Necessary Authorisations referred to
  in [paragraph 2 (Authorisations and Clearances) of
  Part I of Schedule 3 (Conditions Precedent to
  First Utilisation)/paragraph 3 of Part II of Schedule 7
  (Accession Documents)];

  
	
   

  	
   

  	
   

  
	
  (d)

  	
   

  	
  [attached
  to this Certificate marked “D”
  is a true, and complete copy of the acceptance by the agent in England of its
  appointment as agent of the Company for the purpose of accepting service of
  process. I confirm that such agent’s appointment remains in force as at the
  Effective Date;]

  
	
   

  	
   

  	
   

  
	
  (e)

  	
   

  	
  [attached
  to this Certificate marked “E”
  are true, complete and up-to-date copies of the Plans;]

  
	
   

  	
   

  	
   

  
	
  (f)

  	
   

  	
  the entry into
  and performance of the Finance Documents by the Company will not breach any
  borrowing or other indebtedness limit to which the Company is subject; [and]

  
	
   

  	
   

  	
   

  
	
  (g)

  	
   

  	
  [the
  execution, delivery and performance of the Accession Notice and the
  performance by the Company of its obligations under the Finance Documents and
  any other agreement or document executed pursuant thereto does not breach any
  agreement binding on the Company and all Necessary Authorisations in
  connection therewith have been obtained and are current.]

  



 


211

















 


The following
signatures are the true signatures of the persons who have been authorised to
sign the relevant Finance Documents on behalf of the Company and to give
notices and communications, (including Utilisation Requests), under or in
connection with the Finance Documents on behalf of the Company.


 


	
  Name

  	
   

  	
  Position

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [                           ]

  	
   

  	
  [                           ]

  	
   

  	
  [                           ]

  



 


 


	
  Signed:

  	
   

  	
   

  
	
   

  	
  Director

  
	
   

  	
   

  
	
  Date:

  	
  [                           ]

  



 


I, [name], a [Director/Secretary] of [name of Obligor] (the “Company”), certify that the persons whose
names and signatures are set out above are duly appointed directors of the
Company and that the signatures of each of them above are their respective
signatures.


 


 


	
  Signed:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  [Director/Secretary]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  [                           ]

  	
   

  	
   

  



 


212

















 


PART III - SECURITY DOCUMENTS


 


SECTION A
- United States of America


 


1.                                      Security Agreement


 


Security Agreement between ASAP Software Express, Inc.,
BT OP USA, Corp., BT OPI Holding (US), Buhrmann US Inc., Buhrmann Swaps Inc.,
Corporate Express Document & Print Management, Inc, Corporate Express
Office Products, Inc., CE Philadelphia Real Estate, Inc., Corporate
Express Promotional Marketing, Inc., Corporate Express Real Estate, Inc.,
Corporate Express of Texas, Inc., Corporate Express, Inc., License
Technologies Group, Inc. and Deutsche Bank AG, London Branch.


 


2.                                      Pledge over Shares


 


Pledge Agreement over ASAP Software Express, Inc.,
BT OP USA, Corp., BT OPI Holding (US), Buhrman US Inc., Buhrmann Swaps Inc.,
Corporate Express Document & Print Management, Inc., Corporate
Express Office Products, Inc., CE Philadelphia Real Estate, Inc.,
Corporate Express Promotional Marketing, Inc., Corporate Express Real
Estate, Inc., Corporate Express of Texas, Inc., Corporate Express, Inc.,
License Technologies Group, Inc., Buhrmann Silver US LLC between ASAP
Software Express, Inc., CE Philadelphia Real Estate, Inc., Corporate
Express Document & Print Management, Inc., Buhrmann Swaps Inc.,
Corporate Express Promotional Marketing, Inc., License Technologies Group, Inc.,
Corporate Express Real Estate, Inc., BT OP USA Corp, BTOPI Holding (US),
Buhrmann International BV, Buhrmann US Inc., Corporate Express Inc., Corporate
Express Office Products Inc. and Corporate Express of Texas Inc. and Deutsche
Bank AG, London Branch.


 


3.                                      Mortgage over Real Property Located in U.S.A.


 


(a)                                  Mortgage by and between Corporate Express Real Estate and Deutsche
Bank AG, London Branch for the property located at 1 Environmental Way,
Broomfield, CO.


 


(b)                                 Mortgage by and between Corporate Express Document and Print
Management, Inc. and Deutsche Bank AG, London Branch for the property
located at 10700 E. 45th Ave, Denver CO.


 


(c)                                  Mortgage by and between Corporate Express Office Products, Inc.
and Deutsche Bank AG, London Branch for the property located at 13800 E. 39th
Ave, Aurora, CO.


 


(d)                                 Mortgage by and between Corporate Express Document and Print
Management Inc. and Deutsche Bank AG, London Branch for the properties located (i) at
9503 “F” Street, Omaha NE and (ii) at 4205 S. 96th Street,
Omaha, NE.


 


(e)                                  Mortgage by and between Corporate Express Document and Print
Management, Inc. and Deutsche Bank AG, London Branch for the properties
located (i) at 3403 Dan Morton Drive, Dallas, TX and (ii) at 601 IH45
South, Hutchins, Dallas County, TX.


 


213

















 


	
  (f)

  	
   

  	
  Mortgage
  by and between Corporate Express Office Products, Inc. and Deutsche Bank
  AG, London Branch for the property located at 2655 W. Georgia Ave, Phoenix,
  AZ.

  
	
   

  	
   

  	
   

  
	
  (g)

  	
   

  	
  Mortgage
  by and between Corporate Express Office Products, Inc. and Deutsche Bank
  AG, London Branch for the property located at 1233 West County Rd E., Arden
  Hills, MN.

  
	
   

  	
   

  	
   

  
	
  (h)

  	
   

  	
  Mortgage
  by and between BT Office Products International, Inc. and Deutsche Bank
  AG, London Branch for the property located at I-79 North Industrial Park.,
  Glenfield, PA (also known as 208 Overlook Drive, Glenfield, PA).

  
	
   

  	
   

  	
   

  
	
  (i)

  	
   

  	
  Mortgage
  by and between Corporate Express Office Products, Inc. and Deutsche Bank
  AG, London Branch for the property located at 4953 South 48th West
  Avenue, Tulsa, OK.

  



 


SECTION B
- THE NETHERLANDS


 


1.                                      Pledge of Receivables


 


(a)                                  Pledge of Receivables between Buhrmann Financieringen B.V. and
Deutsche Bank AG, London Branch


 


(b)                                 Pledge of Receivables between Buhrmann Fined B.V. and Deutsche Bank
AG, London Branch


 


(c)                                  Pledge of Receivables between Buhrmann N.V. and Deutsche Bank AG,
London Branch


 


(d)                                 Pledge of Receivables between Buhrmann International B.V. and
Deutsche Bank AG, London Branch


 


(e)                                  Pledge of Receivables between Buhrmann Nederland B.V. and Deutsche
Bank AG, London Branch


 


(f)                                    Pledge of Receivables between Buhrmann Nederland Holding B.V. and
Deutsche Bank AG, London Branch


 


(g)                                 Pledge of Receivables between Tetterode-Nederland B.V. and Deutsche
Bank AG, London Branch


 


(h)                                 Pledge of Receivables between Veenman B.V. (formerly known as
Corporate Express Document Automatisering B.V.) and Deutsche Bank AG, London
Branch


 


2.                                      Pledge of Moveable Assets


 


(a)                                  Pledge of Moveable Assets between Buhrmann N.V. and Deutsche Bank
AG, London Branch


 


(b)                                 Pledge of Moveable Assets between Buhrmann Office Products Nederland
B.V. and Deutsche Bank AG, London Branch


 


214

















 


(c)                                  Pledge of Moveable Assets between Tetterode-Nederland B.V. and
Deutsche Bank AG, London Branch


 


(d)                                 Pledge of Moveable Assets between Veenman B.V. (formerly known as
Corporate Express Document Automatisering B.V.) and Deutsche Bank AG, London
Branch


 


3.                                      Pledge over Shares


 


	
  (a)

  	
   

  	
  Pledge
  over shares of Buhrmann II B.V. between the Parent and Deutsche Bank AG,
  London Branch

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  Pledge
  over shares of Buhrmann II B.V. between Buhrmann International B.V. and
  Deutsche Bank AG, London Branch

  
	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  Pledge
  over shares of Buhrmann International B.V. between the Parent and Deutsche Bank AG, London Branch

  
	
   

  	
   

  	
   

  
	
  (d)

  	
   

  	
  Pledge
  over shares of Buhrmann Nederland B.V. between Buhrmann II B.V. and Deutsche Bank AG, London Branch

  
	
   

  	
   

  	
   

  
	
  (e)

  	
   

  	
  Pledge
  over shares of Buhrmann Nederland Holding B.V. between Buhrmann Nederland B.V. and Deutsche
  Bank AG, London Branch

  
	
   

  	
   

  	
   

  
	
  (f)

  	
   

  	
  Pledge
  over shares of Buhrmann Financieringen B.V. between the Parent and Deutsche Bank AG, London Branch

  
	
   

  	
   

  	
   

  
	
  (g)

  	
   

  	
  Pledge
  over shares of Buhrmann Fined B.V. between Buhrmann II B.V. and Deutsche Bank AG, London Branch

  
	
   

  	
   

  	
   

  
	
  (h)

  	
   

  	
  Pledge
  over shares of Tetterode-Nederland B.V. between Buhrmann Nederland Holding B.V. and Deutsche Bank AG, London
  Branch

  
	
   

  	
   

  	
   

  
	
  (i)

  	
   

  	
  Pledge
  over shares of Veenman B.V. (formerly known as Corporate Express Document
  Automatisering B.V.) between Buhrmann
  Nederland Holding B.V. and Deutsche Bank AG, London Branch

  
	
   

  	
   

  	
   

  
	
  (j)

  	
   

  	
  Pledge
  over shares of Buhrmann Office Products Nederland B.V. between Buhrmann Nederland Holding B.V. and
  Deutsche Bank AG, London Branch

  



 


SECTION C
- BELGIUM


 


1.                                      Pledge of Receivables


 


Pledge of
Receivables between Buhrmann Shared Service Center N.V. (formerly known as
Buhrmann Europcenter N.V.) and Deutsche Bank AG, London Branch


 


2.                                      Pledge of Shares


 


Pledge over
shares of Buhrmann Shared Service Center N.V. (formerly known as Buhrmann
Europcenter N.V.) between Buhrmann
Luxembourg S.A.R.L. and Deutsche Bank AG, London Branch


 


215

















 


SECTION D
- LUXEMBOURG


 


1.                                      Pledge over Shares


 


Pledge over
shares of Buhrmann Silver SA between Buhrmann
Luxembourg S.A.R.L. and Deutsche Bank AG, London Branch


 


SECTION E
- AUSTRALIA


 


1.                                      Share Mortgage


 


Share Mortgage
of Corporate Express Australia Limited between Buhrmann International BV and
Deutsche Bank AG, London Branch


 


216

















 


PART IV - CONDITIONS SUBSEQUENT
DOCUMENTS


 


SECTION A
- Conditions Subsequent to be satisfied by 31 January 2004


 


1.                                      Real Property in the U.S.


 


	
  (a)

  	
   

  	
  fully executed
  counterparts of the Security Documents creating or purporting to create a
  good and insurable lien over such of the Real Property located in the U.S.
  owned by the Existing Borrower or any of its Subsidiaries (each as specified
  in the relevant Security Document (as set out in paragraph 3 of
  Section A of Part III of Schedule 3 (Mortgage over Real Property in U.S.A.),
  each a “Mortgaged Property”),
  together with evidence that counterparts of such Mortgages, together with
  such certificates, affidavits, questionnaires or returns as shall be required
  in connection with the recording or filing thereof, have been delivered to
  the title insurance company insuring the Lien of such Security Document for
  recording in all places to the extent necessary or, in the reasonable opinion
  of the Security Trustee desirable, to effectively create a valid and
  enforceable first priority mortgage lien, subject only to Permitted
  Encumbrances (as defined in each relevant Security Document), on such
  Mortgaged Property described therein in favour of the Security Trustee (or
  such other trustee as may be required or desired under local law) for the
  benefit of the Finance Parties;

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  with respect to
  the Mortgaged Properties, such consents, approvals, amendments, supplements,
  estoppels, tenant subordination agreements or other instruments as shall be
  reasonably deemed necessary by the Security Trustee in order for the owner or
  holder of the fee or leasehold interest constituting the Mortgaged Properties
  to grant the Lien contemplated by the Mortgage with respect to the Mortgaged
  Properties;

  
	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  mortgage title
  insurance policy (the “Mortgage Policies”)
  insuring the relevant Security Document on each Mortgaged Property issued by
  a title insurer reasonably satisfactory to the Security Trustee and in
  amounts satisfactory to the Security Trustee and insuring the Security
  Trustee that the relevant Security Document on the Mortgaged Properties
  referred to in paragraphs 3(a), (b), (c), (d)(i) and (g) of Section A
  of Part III of Schedule 3 (Security
  Documents) (each a “Title
  Insurance Property”) is a valid and enforceable mortgage lien on
  such Title Insurance Property and the fixtures described therein, free and
  clear of all defects and encumbrances except Permitted Encumbrances, and such
  Mortgage Policies shall otherwise be in form and substance reasonably
  satisfactory to the Security Trustee and shall include, to the extent
  available in the applicable jurisdiction, supplemental endorsements
  (including, without limitation, endorsements relating to future advances
  under this Agreement, usury, first loss, last dollar, zoning, contiguity,
  revolving credit, doing business, public road access, survey (for the Real
  Property located at Broomfield, CO only), variable rate, environmental lien
  and so-called comprehensive coverage over covenants and restrictions and for
  any other matters that the Security Trustee in its discretion may reasonably
  request) and shall not include the “standard” title exceptions, a survey
  exception (for the Real Property located at Broomfield, CO only) or an
  exception for mechanics’ liens, and shall provide for affirmative insurance
  as the Security Trustee in its discretion may reasonably request but may
  include a survey exception (other than for Broomfield, CO). In addition, for
  Mortgaged Properties

  



 


217

















 


	
   

  	
   

  	
  other than Title
  Insurance Properties, the Existing Borrower shall provide title reports
  showing status of title reasonably satisfactory to the Security Trustee;

  
	
   

  	
   

  	
   

  
	
  (d)

  	
   

  	
  with respect to
  each Mortgaged Property for which a Mortgaged Policy is to be obtained, such
  affidavits, certificates, information (including financial data) and
  instruments of indemnification (including, without limitation, a so-called
  “gap” indemnification) as shall be required to induce the title company to
  issue the Mortgage Policy referred to in paragraph (c) above;

  
	
   

  	
   

  	
   

  
	
  (e)

  	
   

  	
  evidence
  reasonably acceptable to the Security Trustee of payment by the Existing
  Borrower of all Mortgage Policy premiums, search and examination charges, and
  related charges, mortgage recording taxes, fees, charges, costs and expenses
  required for the recording of the Mortgages and issuance of the Mortgage
  Policies;

  
	
   

  	
   

  	
   

  
	
  (f)

  	
   

  	
  flood
  certificates covering each Mortgaged Property in form and substance
  acceptable to the Security Trustee, and certifying whether or not a Mortgaged
  Property is located in a flood hazard area, as determined by reference to the
  applicable FEMA map; and

  
	
   

  	
   

  	
   

  
	
  (g)

  	
   

  	
  opinions of local
  counsel to the Agent and the Arrangers reasonably satisfactory to the Agent
  practicing in those jurisdictions in which Real Properties located in the
  U.S. are subject or intended to be subject to a Security Document, such
  opinions (i) shall cover the perfection of the security interests and/or
  liens granted pursuant to the relevant Security Documents and such other
  matters incident to the transactions contemplated herein as the Agent may
  reasonably request and (ii) shall be in form and substance reasonably
  satisfactory to the Agent, in each case addressed to the Finance Parties.

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Stamp Duty

  



 


Evidence
satisfactory to the Agent that all stamp duty and other relevant taxes payable
under or in connection with any of the Finance Documents have been or as the case
may be, will be paid within the time period prescribed by applicable law and
without incurring any penalties.


 


218

















 


SECTION B
- Conditions Subsequent to be satisfied within 3 months of the Initial Borrowing
Date


 


1.                                      Landlord Lender Agreements


 


The Existing Borrower shall use reasonable efforts to
cause the Security Trustee to receive fully executed landlord waivers and/or
bailee agreements in respect of the following Leaseholds of the relevant
Obligor, each of which Landlord-Lender Agreements shall be in form and
substance reasonably satisfactory to the Security Trustee:


 


(a)                                  Manufacturing sites over 75,000 sq. ft.


 


14601 W. 99th Street, Lenexa, KS (100,940)


 


6504 E. 44th Street, Tulsa, OK (102,214)


 


(b)                                  Other sites over 100,000 sq. ft.


 


8750 Autobahn Drive, Bldg. 6, Dallas, TX (104,055)


 


16501 Trojan Way, La Mirada, CA (316,651)


 


6601 Overlake Place, Newark, CA (160,000)


 


18000 State Road 9, Miami, FL (263,000)


 


1301 Internationale Parkway, Woodridge, IL (211,949)


 


655 Andover Street, Lawrence, MA (170,930)


 


7021 Dorsey Road, Hanover, MD (200,200)


 


1834 Walton Road, Vinita Park, MO (129,506)


 


1133 Poplar Creek Road, Henderson, NC (170,000)


 


600 Jefferson Avenue, Secaucus, NJ (338,661)


 


5443 Duff Drive, Cincinnati, OH (166,400)


 


4575 Pleasant Hill Road, Suite 104, Memphis, TN (126,564)


 


2230 Avenue J, Arlington, TX (134,016)


 


6400 Hollister Road, Houston, TX (220,000)


 


4320 North 124th Street, Wauwatosa, WI (113,700)


 


1400 North Price Road, Olivette, MO (150,000)


 


3900 South American Way, Idaho Falls ID (90,310)


 


219

















 


(c)                                  Others


 


9319 Peach Palm Ave., Tampa, FL


 


306 Airline Dr., Coppell, TX


 


2.                                      Control Agreement


 


A control agreement executed by the bank at which the
main operating account of the Group Business in the United States of America is
held, substantially in the form set out in the security agreement referred to
in paragraph 1 of Section A of Part III of Schedule 3 (Security Documents).


 


220














 


SCHEDULE 4


 


PART I - FORM OF UTILISATION
REQUEST 

(TERM FACILITIES AND REVOLVING FACILITY)


 


From:    Buhrmann US Inc.


 


To:          Deutsche
Bank AG, London Branch


 


Date:


 


Dear Sirs


 


We refer to the
€730,000,000 senior facilities agreement (the “Facilities Agreement”) dated 23 December 2003 and made between Buhrmann N.V. as
Parent, Buhrmann US Inc. as Existing Borrower, the parties named therein as
Original Guarantors, Deutsche Bank AG, London Branch and ABN AMRO Bank N.V. as
Arrangers, Deutsche Bank AG, London Branch as Agent, Deutsche Bank AG, London
Branch as Security Trustee and the financial and other institutions named in it
as Lenders. Terms defined in the Facilities Agreement shall have the same
meaning in this request.


 


We give you this
irrevocable notice that, pursuant to the Facilities Agreement, we wish [the Lenders/name of L/C Bank] to [make an
Advance/issue a Documentary Credit] on the
following terms:


 


(a)           Facility
to be used: [A/D1/D2/Revolving/Incremental
Term Facility]


 


(b)           Euro
Amount: [in relation to the A
Facility] €[·]/[in relation to the D1 Facility] €[·]/[in relation to the D2 Facility] €50,000,000/[in relation to the Revolving Facility][Euro Amount: €[·] [in relation to the
Incremental Term Facility][Euro Amount: €[  ]]


 


(c)           Currency:
[·]


 


(d)           Interest
Period/Term/Expiry Date: [·] month[s]


 


(e)           Proposed
date of [Advance/issue of Documentary Credit]: [·] (or if that day is not a Business Day, the next
Business Day)


 


We confirm that, at
the date of this Utilisation Request, [the
Repeating Representations are true and no Event of Default is continuing or
would result from the Rollover Advance to which this Utilisation Request
relates]/[the Repeating
Representations are true and no Default is continuing or would result from the [Advance/issue of the Documentary Credit]
to which this Utilisation Request relates].*


 


The proceeds of
this drawdown should be credited to [insert account details]./[This Documentary Credit should be issued in favour of [insert name of Beneficiary] in the form 


 






*              Use
first option for Rollover Advances.


                Use
second option for other Advances/Documentary Credits.


 


221

















 


attached to this
Agreement and delivered to such Beneficiary at [insert address].  The purpose for which the Documentary Credit
is requested to be issued is [insert details]].


 


	
  Yours faithfully

  
	
   

  
	
   

  	
   

  
	
   

  
	
  for and on behalf
  of

  
	
   

  
	
  Buhrmann
  US Inc.

  



 


222

















 


PART II - FORM OF UTILISATION
REQUEST (SWINGLINE FACILITY)


 


From:      Buhrmann US Inc.


 


To:          Deutsche Bank AG, London Branch


 


Date:


 


Dear Sirs


 


We refer to the
€730,000,000 senior facilities agreement (the “Facilities Agreement”) dated 23  December 2003 and made between
Buhrmann N.V. as Parent, Buhrmann US Inc. as Existing Borrower, the parties
named therein as Original Guarantors, Deutsche Bank AG, London Branch and ABN
AMRO Bank N.V. as Arrangers, Deutsche Bank AG, London Branch as Agent, Deutsche
Bank AG, London Branch as Security Trustee and the financial and other
institutions named in it as Lenders. Terms defined in the Facilities Agreement
shall have the same meaning in this request.


 


We give you this
irrevocable notice that, pursuant to the Facilities Agreement, we wish a
Swingline Facility Advance to be made to us on the following terms:


 


(a)           Amount:
€[·]/$[·]


 


(b)           Term: [·] month[s]


 


(c)           Proposed
date of Swingline Facility  Advance: [·] (or if that day is not a Business Day, the next
Business Day)


 


We confirm that, at
the date of this Utilisation Request, the Repeating Representations are true
and no Default is continuing or would result from the Swingline Facility Advance to which this Utilisation Request
relates.


 


The proceeds of
this drawdown should be credited to [insert account details].


 


	
  Yours faithfully

  
	
   

  
	
   

  	
   

  
	
   

  
	
  for and on behalf
  of

  
	
   

  
	
  Buhrmann
  US Inc.

  



 


223

















 


PART III - FORM OF INCREMENTAL TERM
FACILITY COMMITMENT

AGREEMENT


 


	
  From:

  	
  [Lender(s)]

  
	
   

  	
   

  
	
  To:

  	
  [Borrower]

  



 


[·]


 


Dear Sirs


 


We refer to the
senior facilities agreement (as from time to time amended, varied, novated or
supplemented, the “Facilities Agreement”)
dated 23 December 2003 whereby certain facilities in a maximum aggregate
amount of €730,000,000 were made
available to Buhrmann US Inc. as Existing Borrower under the guarantee of the
Original Guarantors, by a group of banks and other financial institutions on
whose behalf Deutsche Bank AG, London Branch acted as Agent in connection
therewith.  Unless otherwise defined
herein, capitalised terms used herein shall have the respective meanings set forth
in the Facilities Agreement.


 


Each party (each an
“ Incremental Term Facility Lender”)
party to this letter agreement (this “Agreement”)
hereby severally agrees to provide the Incremental Term Facility Commitment set
forth opposite its name on Annex I attached hereto (for each such  Incremental Term Facility Lender, its “ Incremental Term Facility Commitment”).  Each Incremental Term Facility Commitment
provided pursuant to this Agreement shall be subject to all of the terms and
conditions set forth in the Facilities Agreement, including, without
limitation, Clause 4 (Utilisation)
and Clause 7 (Uncommitted Incremental
Facilities) thereof.


 


Each Incremental
Term Facility Lender and the Agent acknowledge and agree that the  Incremental Term Facility Commitments
provided pursuant to this Agreement shall constitute Incremental Term Facility
Commitments of the respective Tranche specified in Annex I attached hereto and,
upon the incurrence of Incremental Term Facility Advances pursuant to such
Incremental Term Facility Commitments, shall constitute Incremental Term
Facility Advances under such specified Tranche for all purposes of the
Facilities Agreement and the other applicable Finance Documents.


 


Each Incremental
Term Facility Lender, [the Existing Borrower/[insert name of other Borrower]
and the Agent further agrees that, with respect to the Incremental Term
Facility Commitment provided by each Incremental Term Facility Lender pursuant
to this Agreement, such Incremental Term Facility Lender shall receive from
[the Existing Borrower/[insert name of other Borrower] such upfront fees,
unutilised commitment fees and/or other fees, if any, as may be separately
agreed to in writing with the [the Existing Borrower/[insert name of other
Borrower], all of which fees shall be due and payable to such Incremental Term
Facility Lender on the terms and conditions set forth in each such separate
agreement.


 


Furthermore, each
of the parties to this Agreement hereby agree to the terms and conditions set
forth on Annex I hereto in respect of each Incremental Term Facility Commitment
provided pursuant to this Agreement.


 


224

















 


Each Incremental
Term Facility Lender party to this Agreement, to the extent not already a party
to the Facilities Agreement as a Lender thereunder (i) confirms that it
has received a copy of the Facilities Agreement and the other Finance
Documents, together with copies of the financial statements referred to therein
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Agreement and to become
a Lender under the Facilities Agreement, (ii) agrees that it will,
independently and without reliance upon the Agent or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Facilities Agreement and the other Finance Documents, (iii) appoints
and authorises the Agent and the Security Trustee to take such action as agent
on its behalf and to exercise such powers under the Facilities Agreement and
the other Finance Documents as are delegated to the Agent and the Security
Trustee, as the case may be, by the terms thereof, together with such powers as
are reasonably incidental thereto and (iv) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Facilities Agreement and the other Finance Documents are required to be
performed by it as a Lender.


 


Upon the date of (i) the
execution of a counterpart of this Agreement by each Incremental Term Facility
Lender, the Agent, [the Existing Borrower]/[insert name of other Borrower] and
each Obligor, (ii) the delivery to the Agent of a fully executed
counterpart (including by way of facsimile) hereof, (iii) the payment of
any fees then due and payable in connection herewith and (iv) the
satisfaction of any other conditions precedent set forth in paragraph 10 of
Annex I hereto (the “Agreement Effective Date”),
each Incremental Term Facility Lender party hereto (i) shall be obligated
to make the Incremental Term Facility Advances provided to be made by it as
provided in this Agreement on the terms, and subject to the conditions, set
forth in the Facilities Agreement and in this Agreement and (ii) to the
extent provided in this Agreement, shall have the rights and obligations of a
Lender thereunder and under the other applicable Finance Documents.


 


Existing
Borrower/[insert name of other Borrower] acknowledges and agrees that (i) it
shall be liable for all Incremental Term Facility Outstandings provided hereby
including, without limitation, all Incremental Term Facility Advances made
pursuant thereto and (ii) all such Facilities Obligations shall be
entitled to the benefits of the respective Security Documents and the Guarantee
as, and to the extent, provided in the Facilities Agreement and in such other
Finance Documents.


 


Each Obligor
acknowledges and agrees that all Facilities Obligations with respect to the
[Incremental Term Facility Commitments provided hereby and all Incremental Term
Facility Advances made pursuant thereto shall (i) be fully guaranteed
pursuant to the Guarantee and (ii) be entitled to the benefits of the
respective Security Documents to which it is a party as, and to the extent,
provided therein and in the Facilities Agreement.


 


Attached hereto as
Annex II are true and correct copies of officer’s certificates, board of
director resolutions and good standing certificates of the Obligors required to
be delivered pursuant to Clause 7.1(b)(iii) (Incremental Term Facility Commitment Agreement)
of the Facilities Agreement.


 


Attached hereto as
Annex III [is an opinion] [are opinions] of [insert name or names of counsel, including in-house
counsel, who will be delivering opinions], counsel to the [the
Existing Borrower/[insert name of the Borrower], delivered pursuant to
Clause 7.1(b)(ii) of the Facilities Agreement.


 


225

















 


Attached hereto as
Annex IV is the officer’s certificate required to be delivered pursuant to
paragraph (b)(iv) of Clause 7.1] (Incremental Term Facility Commitment Agreement) of the
Facilities Agreement certifying that the conditions set forth in paragraphs (a)(i)(A),
(B) and (C) of Clause 7.1 (Incremental
Term Facility Commitments) of the Facilities Agreement have been
satisfied.


 


[Attached
hereto as Annex V is the officer’s certificate required to be delivered
pursuant to paragraph (b)(iv) of Clause 7.1] (Incremental Term Facility Commitment Agreement)
of the Facilities Agreement certifying that the conditions set forth in
paragraphs (a)(i)(B) and (C) of Clause 7.1 (Incremental Term Facility Commitments) of
the Facilities Agreement have been satisfied (together with calculations
demonstrating same (where applicable) in reasonable detail and copies of the
certificates set forth in such paragraphs (B) and (C)).](1)


 


You may accept this
Agreement by signing the enclosed copies in the space provided below, and returning
one copy of same to us before the close of business on [·]. If you do not so accept this Agreement by such time,
our Incremental Term Facility Commitments set forth in this Agreement shall be
deemed cancelled.


 


After the execution
and delivery to the Agent of a fully executed copy of this Agreement (including
by way of counterparts and by facsimile transmission) by the parties hereto,
this Agreement may only be changed, modified or varied by written instrument in
accordance with the requirements for the modification of Finance Documents
pursuant to Clause 45 (Amendments)
of the Facilities Agreement.


 


In the event of any
conflict between the terms of this Agreement and those of the Facilities
Agreement, the terms of the Facilities Agreement shall prevail.


 


*****


 






(1)           Insert
this paragraph if any Incremental Term Facility Advances are to be incurred on
the Agreement Effective Date.  In
addition, this condition needs to be satisfied for each Incremental Term
Facility Advance Utilisation Date.


 


226

















 


This agreement shall be governed by, and construed in accordance with,
English law.


 


Yours faithfully,


 


 


For and on behalf
of


 


[Incremental
Term Facility Lender(s)]


 


 




	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Name]

  	
   

  	
  [Name]

  
	
   

  	
   

  	
   

  
	
  [Title]

  	
   

  	
  [Title]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  We Accept and
  Agree the terms of the foregoing letter

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Yours faithfully

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  For and on behalf
  of

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Buhrmann
  US Inc [insert name of other Borrower]

  	
   

  	
   

  
	
  as
  [Existing]  Borrower

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Name]

  	
   

  	
  [Name]

  
	
   

  	
   

  	
   

  
	
  [Title]

  	
   

  	
  [Title]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  For and on behalf
  of

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Deutsche
  Bank AG London

  	
   

  	
   

  
	
  as
  Agent

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Name]

  	
   

  	
  [Name]

  
	
   

  	
   

  	
   

  
	
  [Title]

  	
   

  	
  [Title]

  






 


227

















 


Each Obligor
acknowledges and agrees to each the foregoing provisions of this Incremental
Term Facility Commitment Agreement and to the incurrence of the  Incremental Term Facility Advances to be made pursuant
thereto.


 


Yours faithfully


for and on behalf
of


 


Buhrmann
N.V. 

as Parent and Obligor


 


 




	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Name]

  	
   

  	
  [Name]

  
	
   

  	
   

  	
   

  
	
  [Title]

  	
   

  	
  [Title]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [                                         ]

  	
   

  	
   

  
	
  as
  Obligor

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Name]

  	
   

  	
  [Name]

  
	
   

  	
   

  	
   

  
	
  [Title]

  	
   

  	
  [Title]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [                                         ]

  	
   

  	
   

  
	
  as
  Obligor

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Name]

  	
   

  	
  [Name]

  
	
   

  	
   

  	
   

  
	
  [Title]

  	
   

  	
  [Title]

  






 


228

















 


TERMS AND
CONDITIONS FOR 

INCREMENTAL TERM FACILITY COMMITMENT AGREEMENT


 


Dated [•] 2[•]


 


1.             Name
and jurisdiction of [Existing] Borrower:


 


2.             Applicable
Currency for the respective Tranche of Incremental Term Facility Advances:(2)


 


3.             Incremental
Term Facility Commitment Amounts (as of the Agreement Effective Date):


 


	
   

  	
  Names of Incremental Term Facility

  Lenders

  	
   

  	
  Amount of Incremental Term Facility

  Commitment stated in the Applicable

  Currency

  	
   

  
	
   

  	
  [                                                    ]

  	
   

  	
  $[                   ]

  	
   

  
	
   

  	
  Total:(3)

  	
   

  	
  $ [                   ]

  	
   

  



 


4.             Designation
of Tranche of Incremental Term Facility Commitments (and Incremental Term
Facility Advances to be funded thereunder)(4):


 


5.             Indicate
whether the Incremental Term Facility Commitments to be provided hereunder are
to be single draw commitments or multiple draw commitments and the date or
dates by which such commitments must be utilised by:(5)


 


6.             Incremental
Term Facility Maturity Date:(6)


 


7.             Dates
for, and amounts of, the Scheduled Repayments of the Incremental Term
Facility:(7)


 






(2)           Shall
be euros or dollars.


(3)           The
aggregate amount of each Tranche of Incremental Term Facility Commitments must
be at least $50,000,000 (or the Euro Amount thereof).


(4)           Designate
the respective Tranche for such Incremental Term Facility Commitments or
indicate that it is to be added to (and form part of) the D1 Facility/D2
Facility, provided in the case that the Incremental Term Facility Commitments
to be provided pursuant to this Agreement are to be added to (and form a part
of) the D1 Facility/D2 Facility and the currency for such Incremental Term
Facility Commitments shall be the same as for the D1 Facility/D2 Facility.


(5)           Date
cannot be later than Final Maturity Date of the D Facilities.


(6)           Insert
Final Maturity Date for the Incremental Term Facility Advances to be incurred
pursuant to the Incremental Term Facility Commitments provided hereunder,
provided that (i) such Incremental Term Facility Maturity Date shall be no
earlier than the Final Maturity Date of the D Facilities and (ii) in the
event the Incremental Term Facility Commitments to be provided pursuant to this
Agreement are to be added to (and form a part of) the D1 Facility/D2 Facility,
the Incremental Term Facility Final Maturity Date for the Incremental Term
Facility Advances to be incurred pursuant to such Incremental Term Facility
Commitments, shall be the same Final Maturity Date as for the D1 Facility/D2
Facility, as the case may be.


(7)           Set
forth the dates for Scheduled Repayments of the Incremental Term Facility and
the principal amount (expressed as a numerical amount or as a percentage of the
aggregate amount of Incremental Term Facility Advances to be incurred pursuant
to the Incremental Term Facility Commitments provided hereunder), provided that
(i) to the extent the Incremental Term Facility Commitments being provided
hereunder constitute a new Tranche of Incremental Term Facility, the Weighted
Average Life to Maturity of such new Tranche shall be no less than the Weighted
Average Life


 


229

















 


8.             Applicable
Margins:(8)


 


9.             The
proceeds of the Incremental Term Facility Advances to be provided hereunder are
to be used for:(9)


 


10.           Other
Conditions Precedent:(10)


 


11.           Notices:(11)


 


12.           Payments:(12)


 


13.           Amount
of Incremental Term Facility Advance:(13)


 


14.           Minimum
voluntary prepayment amount under Clause 12 (Voluntary Prepayment) of the Facilities Agreement:(14)


 


[15.          The
[Existing/other] Borrower agrees to pay compensation as, and to the extent,
provided in the last paragraph (c)  (Constitution
of each Tranche of Incremental Term Facility) of Clause 7.1 (Incremental Term Facility) of the
Facilities Agreement.](15)


 






to Maturity as then in effect for the D1 Facility/D2
Facility and (ii) in the event the Incremental Term Facility  Commitments to be provided hereunder are to
be added to (and form a part of) the D1 Facility/D2 Facility, (x) the
Scheduled Repayments for such Incremental Term Facility Advances shall be the
same (on a proportionate basis) as is theretofore applicable to the D1
Facility/D2 Facility to which such new Incremental Term Facility Advances are
being added and (y) such Incremental Term Facility Advances shall have the
same Scheduled Repayment Dates.


(8)           Insert
the Applicable Margins that shall apply to the Incremental Term Facility
Advances being provided hereunder, provided in the event the Incremental Term
Facility Commitments to be provided hereunder are to be made under (and form a
part of) the D1 Facility/D2 Facility, the Incremental Term Facility Advances to
be incurred pursuant to such Incremental Term Facility Commitments shall have
the same Applicable Margins applicable to the D1 Facility/D2 Facility.


(9)           Designate
the specific use of the proceeds of the applicable Incremental Term Facility
Advances as provided in

Clause 2.2(e) (Purpose) of the
Facilities Agreement.


(10)         Insert
any additional conditions precedent which may be required to be satisfied prior
to the Agreement Effective Date.


(11)         Notice
relating to Incremental Term Facility Advances incurred by a Borrower shall be
as required in accordance with 

Clause 42.2 (Giving Notice) of the Facilities
Agreement.


(12)         Payments
relating to Incremental Term Facility Advances incurred by a Borrower shall be
as required in accordance with Clause 35.1 (Payment to Agent)
of the Facilities Agreement.


(13)         The
Agent shall designate the amount for the respective Tranche of Incremental Term
Facility Advances, which amount shall be no less than $50,000,000 (or its
equivalent in euros).


(14)         The
Agent shall designate the minimum amount for partial voluntary prepayments
pursuant to Clause 12  (Voluntary Prepayment) of the Facilities Agreement for the
respective Tranche of the Incremental Term Facility.


(15)         Insert
if the respective Incremental Term Facility Commitments are to be added to (and
form a part of) the D1 facility/D2 Facility and to the extent any
related breakage type compensation is agreed to be paid by a Borrower.


 


230

















 


PART IV - FORM OF INCREMENTAL REVOLVING FACILITY COMMITMENT

AGREEMENT


 


	
  From:

  	
  [Lender(s)]

  
	
   

  	
   

  
	
  To:

  	
  Buhrmann US Inc.

  
	
   

  	
  One Environmental
  Way

  
	
   

  	
  Broomfield,
  Colorado 80021

  
	
   

  	
  United States of
  America

  



 


[•]


 


Dear Sirs


 


We refer to the
senior facilities agreement (as from time to time amended, varied, novated or
supplemented, the “Facilities Agreement”)
dated 23 December 2003 whereby certain facilities in a maximum aggregate
amount of €730,000,000 were made
available to Buhrmann US Inc. as Existing Borrower under the guarantee of the
Original Guarantors, by a group of banks and other financial institutions on
whose behalf Deutsche Bank AG, London Branch acted as Agent in connection
therewith.  Unless otherwise defined
herein, capitalised terms used herein shall have the respective meanings set
forth in the Facilities Agreement.


 


Each party (each an
“Incremental Revolving Facility Lender”)
party to this letter agreement (this “Agreement”)
hereby severally agrees to provide the Incremental Revolving Facility
Commitment set forth opposite its name on Annex I attached hereto (for each
such Incremental Revolving Facility Lender, its “Incremental Revolving Facility Commitment”).  Each Incremental Revolving Facility
Commitment provided pursuant to this Agreement shall be subject to all of the
terms and conditions set forth in the Facilities Agreement, including, without
limitation, Clause 4 (Utilisation)
and Clause 7 (Uncommitted Incremental
Facilities) thereof.


 


Each Incremental
Revolving Facility Lender and the Agent acknowledge and agree that the
Incremental Revolving Facility Commitments provided pursuant to this Agreement
shall constitute Incremental Revolving Facility Commitments and, upon the
incurrence of Revolving Facility Advances pursuant to such Incremental
Revolving Commitments, shall constitute Revolving Facility Advances for all
purposes of the Facilities Agreement and the other applicable Finance
Documents.


 


Each Incremental
Revolving Facility Lender, the [Existing Borrower/[insert name of other
Borrower] and the Agent further agrees that, with respect to the Incremental
Revolving Facility Commitment provided by each Incremental Revolving Facility
Lender pursuant to this Agreement, such Incremental Revolving Facility Lender
shall receive from the [Existing Borrower/[insert name of other Borrower]
Borrower such upfront fees, unutilised commitment fees and/or other fees, if
any, as may be separately agreed to in writing with the [Existing
Borrower/[insert name of other Borrower] Borrower all of which fees shall be
due and payable to such Incremental Revolving Facility Lender on the terms and
conditions set forth in each such separate agreement.


 


231

















 


Furthermore, each
of the parties to this Agreement hereby agree to the terms and conditions set
forth on Annex I hereto in respect of each Incremental Revolving Facility
Commitment provided pursuant to this Agreement.


 


Each Incremental
Revolving Facility Lender party to this Agreement, to the extent not already a
party to the Facilities Agreement as a Lender thereunder (i) confirms that
it has received a copy of the Facilities Agreement and the other Finance
Documents, together with copies of the financial statements referred to therein
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Agreement and to become
a Lender under the Facilities Agreement, (ii) agrees that it will,
independently and without reliance upon the Agent or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Facilities Agreement and the other Finance Documents, (iii) appoints
and authorises the Agent and the Security Trustee to take such action as agent
on its behalf and to exercise such powers under the Facilities Agreement and
the other Finance Documents as are delegated to the Agent and the Security
Trustee, as the case may be, by the terms thereof, together with such powers as
are reasonably incidental thereto and (iv) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Facilities Agreement and the other Finance Documents are required to be
performed by it as a Lender.


 


Upon the date of (i) the
execution of a counterpart of this Agreement by each Incremental Revolving
Facility Lender, the Agent, [Existing Borrower/[insert name of other Borrower]
and each Obligor, (ii) the delivery to the Agent of a fully executed
counterpart (including by way of facsimile) hereof, (iii) the payment of
any fees then due and payable in connection herewith and (iv) the
satisfaction of any other conditions precedent set forth in paragraph 10 of
Annex I hereto (the “Agreement Effective Date”),
each Incremental Revolving Facility Lender party hereto (i) shall be
obligated to make the Revolving Facility Advances provided to be made by it as
provided in this Agreement on the terms, and subject to the conditions, set
forth in the Facilities Agreement and in this Agreement and (ii) to the
extent provided in this Agreement, shall have the rights and obligations of a
Lender thereunder and under the other applicable Finance Documents.


 


The [Existing
Borrower/[insert name of other Borrower] acknowledges and agrees that (i) it
shall be liable for all Incremental Revolving Facility Outstandings provided
hereby including, without limitation, all Revolving Facility Advances made
pursuant thereto and (ii) all such Facilities Obligations (including all
such Revolving Facility Advances) shall be entitled to the benefits of the
respective Security Documents and the Guarantee as, and to the extent, provided
in the Facilities Agreement and in such other Finance Documents.


 


Each Obligor
acknowledges and agrees that all Facilities Obligations with respect to the
Incremental Revolving Facility Commitments provided hereby and all Revolving
Facility Advances made pursuant thereto shall (i) be fully guaranteed
pursuant to the Guarantee and (ii) be entitled to the benefits of the
respective Security Documents to which it is a party as, and to the extent,
provided therein and in the Facilities Agreement.


 


Attached hereto as
Annex II are true and correct copies of officer’s certificates, board of
director resolutions and good standing certificates of the Obligors required to
be delivered pursuant to Clause 7.2(b)(iii) (Incremental Revolving Facility Commitment Agreement)
of the Facilities Agreement.


 


232

















 


Attached hereto as
Annex III [is an opinion] [are opinions] of [insert name or names of counsel,
including in-house counsel, who will be delivering opinions], counsel to the
[Existing Borrower/[insert name of other Borrower]], delivered pursuant to
Clause 7.2(b)(ii) of the Facilities Agreement.


 


Attached hereto as
Annex IV is the officer’s certificate required to be delivered pursuant to
paragraph (b)(iv) of Clause 7.2 (Incremental Revolving Facility Commitment Agreement) of the
Facilities Agreement certifying that the conditions set forth in
paragraph (a)(i) of Clause 7.2 (Incremental
Revolving Facility Commitments) of the Facilities Agreement have
been satisfied.


 


You may accept this
Agreement by signing the enclosed copies in the space provided below, and
returning one copy of same to us before the close of business on [•]. If you do not so accept this Agreement by such
time, our Incremental Revolving Facility Commitments set forth in this
Agreement shall be deemed cancelled.


 


After the execution
and delivery to the Agent of a fully executed copy of this Agreement (including
by way of counterparts and by facsimile transmission) by the parties hereto,
this Agreement may only be changed, modified or varied by written instrument in
accordance with the requirements for the modification of Finance Documents
pursuant to Clause 45 (Amendments)
of the Facilities Agreement.


 


In the event of any
conflict between the terms of this Agreement and those of the Facilities
Agreement, the terms of the Facilities Agreement shall prevail.


 


*****


 


233

















 


This agreement shall be governed in accordance with, English law.


 


Yours faithfully,


 


 


For and on behalf
of


 


[Incremental
Revolving Facility Lender(s)]


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Name]

  	
   

  	
  [Name]

  
	
   

  	
   

  	
   

  
	
  [Title]

  	
   

  	
  [Title]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  We Accept and
  Agree the terms of the foregoing letter

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Yours faithfully

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  For and on behalf
  of

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Buhrmann
  US Inc [insert name of other Borrower]

  	
   

  	
   

  
	
  as
  [Existing/other]  Borrower

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Name]

  	
   

  	
  [Name]

  
	
   

  	
   

  	
   

  
	
  [Title]

  	
   

  	
  [Title]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  For and on behalf
  of

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Deutsche
  Bank AG London

  	
   

  	
   

  
	
  as
  Agent

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Name]

  	
   

  	
  [Name]

  
	
   

  	
   

  	
   

  
	
  [Title]

  	
   

  	
  [Title]

  



 


234

















 


Each Obligor
acknowledges and agrees to each the foregoing provisions of this Incremental
Facility Commitment Agreement and to the incurrence of the Revolving Facility
Advances to be made pursuant thereto.


 


Yours faithfully


for and on behalf
of


 


Buhrmann
N.V. 

as Parent and Obligor




	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Name]

  	
   

  	
  [Name]

  
	
   

  	
   

  	
   

  
	
  [Title]

  	
   

  	
  [Title]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [                                          ]

  	
   

  	
   

  
	
  as
  Obligor

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Name]

  	
   

  	
  [Name]

  
	
   

  	
   

  	
   

  
	
  [Title]

  	
   

  	
  [Title]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [                                          ]

  	
   

  	
   

  
	
  as
  Obligor

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Name]

  	
   

  	
  [Name]

  
	
   

  	
   

  	
   

  
	
  [Title]

  	
   

  	
  [Title]

  






 


235

















 


TERMS AND
CONDITIONS FOR 

INCREMENTAL REVOLVING FACILITY COMMITMENT AGREEMENT


 


Dated [•] 2[•]


 


1.             Name
and jurisdiction of [Existing] Borrower:


 


2.             Incremental
Revolving Facility Commitment Amounts (as of the Agreement Effective Date):


 




	
   

  	
  Names of Incremental Revolving

  Facility Lenders

  	
   

  	
  Amount of Incremental Revolving 

  Facility Commitment

  	
   

  
	
   

  	
  [               

             ]

  	
   

  	
  $[               ]

  	
   

  
	
   

  	
  Total:(16)

  	
   

  	
  $[               ]

  	
   

  






 


3.             Other
Conditions Precedent:(17)


 


4.             Notices:(18)


 


5.             Payments:(19)


 


6.             Amount
of Revolving Facility Advance:(20)


 


7.             Minimum
voluntary prepayment amount under Clause 12 (Voluntary Prepayment) of the Facilities Agreement:(21)


 






(16)         The
aggregate amount of Incremental Revolving Facility Commitments must be at least
€1,000,000 (or the Euro Amount thereof) and in integral multiples of €1,000,000
(or the Euro amount thereof).


 


(17)         Insert
any additional conditions precedent which may be required to be satisfied prior
to the Agreement Effective Date.


 


(18)         Notice
relating to Revolving Facility Advances incurred by a Borrower shall be as
required in accordance with Clause 42.2 (Giving Notice)
of the Facilities Agreement.


 


(19)         Payments
relating to Revolving Facility Advances incurred by a Borrower shall be as
required in accordance with 

Clause 35.1 (Payment to Agent) of the
Facilities Agreement.


 


(20)         The
Agent shall designate the amount for the respective Revolving Facility
Advances, which amount shall be no less than €1,000,000 (or its equivalent in
euros).


 


(21)         The
Agent shall designate the minimum amount for partial voluntary prepayments
pursuant to Clause 12 (Voluntary Prepayment)
of the Facilities Agreement for the Revolving Facility.


 


236














 


SCHEDULE 5

SECURITY TRUSTEE PROVISIONS


 


PART I - Supplementary
Security Trustee Provisions


 


In this Schedule any reference to the Security Trustee’s Rights is
a reference to the rights, powers, authorities, discretions, privileges and
immunities (a) which gratuitous trustees have or may have in England
(referred to below as the Security Trustee’s “Rights”)
and (b) which (by way of supplement to the Trustee Act 1925 and the
Trustee Act 2000), are set out below.


 


1.                                       The
Security Trustee may (without any responsibility for any resulting loss) rely
on:


 


(a)                                  any
communication, certificate, legal opinion or other document believed by it to
be genuine and correct and to have been signed by, or with the authority of,
the proper person;


 


(b)                                 any
statement made by a director, officer, partner or employee of any person
regarding any matters which may reasonably be assumed to be within his
knowledge or within his power to verify; and


 


(c)                                  a
certificate signed by any one or more persons which, or each of which, is
believed by it to be a director or other duly authorised officer of an Obligor
or of a Finance Party to the effect that any particular dealing, transaction,
step or thing is, in the opinion of the person so certifying, suitable or
expedient or as to any other fact or matter upon which the Security Trustee may
require to be satisfied and shall not be responsible for any loss that may be
occasioned by its relying on any such certificate.


 


2.                                       The
Security Trustee may obtain and pay for such legal or other expert advice or
services as it may consider necessary or desirable and may rely on the opinion
or advice of or any information obtained from any lawyer, accountant,
architect, engineer, surveyor, broker, consultant, valuer or other expert,
whether obtained by the Security Trustee or otherwise, and shall not be
responsible for any loss resulting from such reliance.


 


3.                                       Any
opinion, advice or information on which the Security Trustee relies or intends
to rely may be sent or communicated by letter, telex message, facsimile
transmission, telephone or any other means. 
The Security Trustee shall not be liable for acting on any opinion,
advice or information which is so conveyed, even if the opinion, advice or
information contains some error or is not authentic.


 


4.                                       The
Security Trustee may retain for its own benefit, without liability to account
to any other person, any fee or other sum received by it for its own account.


 


5.                                       The
Security Trustee may accept deposits from, lend money to or provide advisory or
other services to or engage in any kind of banking or other business with any
Obligor or any Finance Party or a subsidiary or associated company of any of
them and may do so without any obligation to account to or disclose any such
arrangements to any person.


 


237

















 


6.                                       The Security
Trustee may exercise any of its Rights and perform any of its duties,
obligations and responsibilities under this Agreement or any of the Security
Documents through its employees or through paid or unpaid agents, which may be
corporations, partnerships or individuals (whether or not lawyers or other
professional persons), and shall not be responsible for any misconduct or
omission on the part of, or be bound to supervise the proceedings or acts of,
any such employee or agent.  Any such
agent which is engaged in any profession or business shall be entitled to
charge and be paid all usual fees, expenses and other charges for its services.


 


7.                                       The
Security Trustee may at any time and from time to time delegate, whether by
power of attorney or otherwise, to any persons all or any of its Rights and the
rights, powers and discretions which are for the time being exercisable by the
Security Trustee under any of the Security Documents.  Any such delegation may be made upon such
terms and conditions (including the power to sub-delegate with the consent of
the Security Trustee) as the Security Trustee may think fit.  The Security Trustee shall not be in any way
be liable or responsible to any Obligor, any Finance Party or any other person
for any loss or damage arising from any act, default, omission or misconduct on
the part of any such delegate or sub-delegate.


 


8.                                       Nothing
in this Agreement shall limit the ability of the Security Trustee to exercise
any rights, powers and discretions it may have in its capacity as a Finance
Party.


 


9.                                       The
Security Trustee may refrain from doing anything which would or might in its
opinion be contrary to any law of any jurisdiction or any directive or
regulation of any agency of any state or which would or might otherwise render
it liable to any person and may do anything which is, in its absolute
discretion, necessary to comply with any such Law, directive or regulation.


 


10.                                 The
Security Trustee shall not be liable for any omission or defect in, or any
failure to preserve or perfect any or all of the Security including, without
limitation, any failure:


 


(a)                                  to
obtain any licence, consent or other authority required for the execution,
delivery, validity, legality, adequacy, performance, enforceability or
admissibility in evidence of any Security Document;


 


(b)                                 to
register or submit for registration any Security Document or other document or
any security created thereby, or to file or caused to be entered any notice,
caution or other entry, in any applicable register or with any applicable
agency or authority;


 


(c)                                  to
require the deposit with it of any deed or document certifying, evidencing or
constituting the title of any Obligor to any or all of the Trust Property; or


 


(d)                                 to
require any further assurances in relation to any of the Security.


 


11.                                 The
Security Trustee may accept without enquiry such evidence of title as any
Obligor may have to any or all of the Trust Property and shall not be liable
for any failure or omission to ascertain or investigate the title of any
Obligor or any other person to any or all of the Trust Property.


 


238

















 


12.                                      The
Security Trustee and every receiver and/or manager, delegate, sub-delegate,
attorney, agent or other person appointed under this Agreement or any of the
Security Documents may indemnify itself out of the Trust Property against all
proceedings, claims and demands which may be made or taken against it and all
costs, charges, damages, expenses and liabilities which it may suffer or incur
unless suffered or incurred by reason of its own gross negligence or wilful
misconduct.


 


13.                                      The
Security Trustee may (without any obligation to insure and at the cost and
expense of the Obligors) place this Agreement, any title deeds and other
documents certifying, evidencing or constituting the title to any of the
Collateral in any safe deposit, safe or other receptacle selected by the
Security Trustee or with any bank, financial institution or other company or
lawyer or law firm believed by it to be of good repute.  The Security Trustee may in its absolute
discretion make any such arrangements as it thinks fit for allowing any Obligor
or its lawyers or auditors or other advisers access to or possession of any
such title deeds and other documents. 
The Security Trustee shall not be responsible for any loss which may
result arising out of any such deposit, access or possession.


 


14.                                      Pending
appropriation and distribution under Clause 6.3 (Application
of Proceeds) of the Intercreditor Deed and without responsibility
for any loss or any reduction in return which may result from its so doing, the
Security Trustee may credit any sum received, recovered or held by it in
respect of the Trust Property in such a suspense or other account as the
Security Trustee thinks fit or invest or place on deposit such sum in the name
of or under the control of the Security Trustee in any investment for the time
being authorised by English law for the investment by trustees of trust moneys
or with such bank or financial institution (including the Security Trustee) as
the Security Trustee may think fit.  The
Security Trustee may at any time in its absolute discretion vary, exchange,
transfer or transpose any such investments or deposits for or into other such
investments or deposits.  Any investment
made by the Security Trustee may, at its discretion, be made or retained in the
name of a nominee.


 


15.                                      The
Security Trustee shall not be obliged to monitor or enquire as to whether or
not a Default has occurred and will not be deemed to have knowledge of the
occurrence of a Default unless it has actual knowledge or express notice
thereof.


 


16.                                      Neither
the Security Trustee nor any of its officers, employees or agents makes, or
shall at any time be deemed to make, any representation or warranty (express or
implied) as to or be responsible or liable to any person for:


 


(a)                                  the
adequacy, accuracy or completeness of any representation, warranty, statement
or information contained in this Agreement or any Security Document, notice,
report or other document, statement or information circulated, delivered or
made to any Finance Party whether orally or otherwise and whether before, on or
after the date of this Agreement;


 


(b)                                 the
execution, delivery, validity, legality, priority, ranking, adequacy,
performance, enforceability or admissibility in evidence of this Agreement or
any Security Document or any other document referred to in (a) above or of
any security created thereby or any obligations imposed thereby or assumed
thereunder; or


 


239

















 


(c)                                  anything
done or not done by it or any of them under or in connection with this
Agreement or the Security Documents save in the case of its or their gross
negligence, breach of a Finance Document or wilful misconduct.


 


17.                                 Where
the disposal of any or all of the Collateral is permitted under or consented to
in accordance with any relevant Finance Document, the Security Trustee shall
release such Trust Property from the Security to which it is subject, but the
Security Trustee shall not give such consent without the prior written consent
of or instructions from the Agent unless the Security Trustee determines that
its giving of such consent will not materially prejudice the interests of the
Finance Parties or any of them.


 


18.                                 The
Security Trustee shall not have any duty to ensure that any payment or other
financial benefit in respect of any of the Trust Property is duly and
punctually paid, received or collected as and when the same becomes due and
payable or to procure that the correct amounts (if any) are paid or received or
to ensure the taking up of any (or any offer of any) stocks, shares, rights,
moneys or other property paid, distributed, accrued or offered at any time by
way of interest, dividend, redemption, bonus, rights, preference, option,
warrant or otherwise on, or in respect of or in substitution for any of the
Trust Property.


 


19.                                 If
instructed by the Agent, the Security Trustee shall concur with the relevant
Obligor and shall exercise its Rights in making any modification to a Security
Document which (a) relates to administrative matters or is a technical
amendment arising out of a manifest error and (b) would not in the Agent’s
opinion materially prejudice the Finance Parties.


 


20.                                 The
Security Trustee as between itself and the other parties hereto shall have full
power to determine all questions and doubts arising in relation to any of the
provisions of this Agreement or any Security Document and any such
determination shall in the absence of manifest error, be conclusive and shall
bind the Security Trustee and the other parties hereto.


 


21.                                 Any
consent given by the Security Trustee for the purposes of this Agreement may be
given on such terms and subject to such conditions (if any) as the Security
Trustee may require.


 


22.                                 If
there is any conflict between the provisions of this Agreement and any Security
Document with regard to instructions to or other matters affecting the Security
Trustee, this Agreement will prevail.


 


23.                                 The
Security Trustee shall not (unless required by law or ordered so to do by a
court of competent jurisdiction) be required to (a) to disclose to any
Finance Party any credit or other information (other than information in the
Security Trustee’s possession specifically concerning the Security Documents)
with respect to the financial condition or affairs of any member of the Group
or any of their related entities whether coming into its or any of its
affiliates possession before or on the entry into this Agreement or at any time
thereafter or (b) to request any certificates or other documents from any
member of the Group unless specifically requested to do so by the Agent in
accordance with this Agreement or any of the Security Documents.


 


240

















 


24.                                 Nothing
contained in this Agreement shall require the Security Trustee to expend or
risk its own funds or otherwise incur any financial liability in the
performance of its duties or the exercise of any right, power, authority or
discretion hereunder if it has grounds for believing the repayment of such
funds or adequate indemnity against, or security for, such risk or liability is
not reasonably assured to it.


 


PART II - Appointment
and Retirement of Security Trustee


 


1.                                       The
Security Trustee shall, at any time and for any purpose or reason whatsoever,
have power to appoint any person to act either as a separate Security Trustee,
or as co-Security Trustee jointly with the Security Trustee, with (subject to
the provisions of this Agreement) such of the Security Trustee’s Rights
(including the right to reasonable remuneration and indemnity), duties and
obligations vested in the Security Trustee by this Agreement or any Security
Document as shall be conferred or imposed by the instrument of its appointment.


 


2.                                       No
more than one separate Security Trustee or co-Security Trustee may be appointed
by the Security Trustee if no Event of Default has occurred and is continuing
unless the Security Trustee reasonably considers that such appointment is
necessary or desirable for the purpose of exercising its rights under this
Agreement or otherwise due to any requirement, restriction or condition in any
applicable jurisdiction. The Security Trustee shall have power to remove any
such separate Security Trustee or co-Security Trustee for any reason
whatsoever.


 


3.                                       Whenever
there shall be more than one Security Trustee under this Agreement any
reference to “Security Trustee” shall be construed as a reference to each of
those trustees.


 


4.                                       Whenever
there shall be more than two Security Trustees under this Agreement, the
majority of such Security Trustees shall be competent to execute and exercise
all the duties, powers, authorities and discretions vested in the Security Trustee
by this Agreement, the Security Documents and general law.


 


5.                                       A
Security Trustee may, save as provided below, retire at any time upon giving
not less than 30 days’ notice in writing to the Agent without assigning
any reason therefor and without being responsible for the costs occasioned by
such retirement.


 


6.                                       The
retirement of a sole Security Trustee shall not take effect until (i) the
appointment of a successor Security Trustee has been made and accepted by way
of execution of an Accession Notice; and (ii) the Agent is satisfied that
all things required to be done in order that the Security Documents or
replacements therefor shall provide for perfected and enforceable security in
favour of the successor Security Trustee have been done.


 


7.                                       If
such a notice of resignation has been given and, within 30 days after such
notice of resignation, no successor Security Trustee shall have (i) been
appointed by the Finance Parties and (ii) accepted such appointment, the
retiring Security Trustee, after consultation with the Parent and the Agent,
shall have the right to appoint a successor Security Trustee which shall be a
reputable and experienced bank.


 


241

















 


If a successor to the Security Trustee is appointed under the
provisions of this Schedule above the retiring Security Trustee shall be
discharged from any further obligations under, but shall remain entitled to the
benefits of, this Agreement.


 


242

















 


SCHEDULE 6

ASSOCIATED COSTS RATE


 


1.                                      On
the first day of each Interest Period or Term (or as soon as possible
thereafter) the Agent shall determine:


 


(a)                                  for
each Lender the percentage rate per annum for such Interest Period or Term
which is the applicable “Additional Costs
Rate” (as calculated in paragraph 2 or 3 below); and


 


(b)                                  the “Associated Costs Rate” for such period,
which shall be the rate per annum which is the weighted average of the Lenders’
Additional Costs Rates (weighted in proportion to the percentage participation
of each Lender in the Advance to which such Interest Period or Term relates).


 


2.                                      (a)                                  The
Additional Costs Rate for a Lender lending from a Facility Office in a
Participating Member State shall be the percentage certified by that Lender to
the Agent as being its reasonable determination of the cost (expressed as a
percentage of that Lender’s participation in all Advances made from that
Facility Office) to such Lender of complying with the minimum reserve
requirements of the European Central Bank in respect of Advances made from that
Facility Office.


 


(b)                                 The
Additional Costs Rate for a Lender lending from a Facility Office in the U.S.
shall be the percentage certified by that Lender to the Agent as being its
reasonable determination of the cost (expressed as a percentage of that Lender’s
participation in all Advances made from that Facility Office) to such Lender of
complying with the minimum reserve requirements of the Federal Reserve Bank of
New York in respect of Advances made from that Facility Office.


 


3.                                      The
Additional Costs Rate for a Lender lending from a Facility Office in the United
Kingdom shall be calculated as follows:


 


(a)                                  In
relation to an Advance denominated in sterling:


 


	
   

  	
  AB + C(B - D) + Ex 0.01

  	
  

   per cent. per annum

  
	
   

  	
          100 - (A+C)

  



 


(b)                                  In
relation to an Advance denominated in euro or an Optional Currency other than
sterling:


 


	
   

  	
  Ex 0.01

  	
  

   per cent. per annum

  
	
   

  	
    300

  



 


where:


 


A                                       is
the percentage of Eligible Liabilities (assuming these to be in excess of any
stated minimum) which that Lender is from time to time required to maintain as
an interest free cash ratio deposit with the Bank of England to comply with
cash ratio requirements.


 


243

















 


B                                       is
the percentage rate of interest (excluding the Applicable Margin and the
Associated Costs Rate and, if the relevant amount is an Unpaid Sum, the
additional rate of interest specified in Clause 29.2 (Default Rate)),
payable for the relevant Interest Period or Term in respect of the relevant
Advance.


 


C                                       is
the percentage (if any) of Eligible Liabilities which that Lender is required
from time to time to maintain as interest bearing Special Deposits with the
Bank of England.


 


D                                       is
the percentage rate per annum payable by the Bank of England to that Lender on
interest bearing Special Deposits.


 


E                                         is
designed to compensate Lenders for amounts payable under the Fees Rules and
is calculated by the Agent as being the average of the most recent rates of
charge supplied by the Reference Banks to the Agent pursuant to paragraph 6
below and expressed in pounds per £1,000,000.


 


4.                                      For
the purposes of this Schedule:


 


(a)                                  “Eligible Liabilities”  and “Special
Deposits”  have the
meanings given to them from time to time under or pursuant to the Bank of
England Act 1998 or (as the case may be appropriate) by the Bank of England;
and


 


(b)                                  “Fees Rules”  means the rules on periodic fees contained in the FSA
Supervision Manual or such other law or regulation as may be in force from time
to time in respect of the payment of fees for the acceptance of deposits.


 


5.                                      In
application of the above formulae, A, B, C and D will be included in the
formulae as percentages (i.e. 5 per cent. will be included in the formula
as 5 and not as 0.05).  A negative result
obtained by subtracting D from B shall be taken as zero.  The resulting figures shall be rounded to 4
decimal places.


 


6.                                      If
requested by the Agent, each Reference Bank shall, as soon as practicable after
publication by the Financial Services Authority, supply to the Agent, the rate
of charge payable by that Reference Bank to the Financial Services Authority
pursuant to the Fees Rules in respect of the relevant financial year of
the Financial Services Authority (calculated for this purpose by that Reference
Bank as being the average of the Fee Tariffs applicable to that Reference Bank
for that financial year) and expressed in pounds per £1,000,000 of the Tariff
Base of that Reference Bank.


 


7.                                      For
the purposes of paragraph 6 of this Schedule:


 


(a)                                  “Fee Tariffs”  means the fee tariffs specified in the Fees Rules under
the activity group A.1 Deposit acceptors (ignoring any minimum fee or zero
rated fee required pursuant to the Fees Rules but taking into account any
applicable discount rate); and


 


(b)                                  “Tariff Base”  has the meaning given to it, and is calculated in accordance
with, the Fees Rules.


 


244

















 


8.                                      Each
Lender shall supply any information required by the Agent for the purposes of
calculating the Additional Costs Rate, including the following information
which such Lender shall provide to the Agent on or before the date on which it
becomes a Lender:


 


(a)           the jurisdiction of its Facility Office; and


 


(b)                                  any
other information that the Agent may reasonably require for such purpose,


 


and shall promptly notify the Agent in writing of any change to the
information provided by it pursuant to this paragraph.


 


9.                                      The
percentages of each Lender for the purpose of A and C above and the rates of
charge of each Reference Bank for the purpose of E above shall be determined by
the Agent based upon the information supplied to it pursuant to paragraphs 6
and 8 above and on the assumption that, unless a Lender notifies the Agent to
the contrary, each Lender’s obligations in relation to cash ratio deposits and
Special Deposits are the same as those of a typical bank from its jurisdiction
of incorporation with a Facility Office in the same jurisdiction as its
Facility Office.


 


10.                               The
Agent shall have no liability to any person if any determination by it of an
Additional Costs Rate and/or an Associated Costs Rate over or under compensates
a Lender and shall be entitled to assume that the information provided by any
Lender or Reference Bank pursuant to paragraphs 2, 6 and 8 above is true and
correct in all respects.


 


11.                               The
Agent shall distribute amounts received by it in respect of an Interest Period
or Term and attributable to the Associated Costs Rate to the Lenders on the
basis of the Additional Costs Rate for each such Interest Period or Term and
each Lender determined by the Agent pursuant to the provisions of this
Schedule.


 


12.                               Any
determination by the Agent pursuant to this Schedule in relation to a
formula, an Additional Costs Rate or an Associated Costs Rate or any amount
payable to a Lender shall, in the absence of manifest error, be conclusive and
binding on all the parties to this Agreement.


 


13.                               The
Agent may from time to time, after consultation with the Parent and the
Lenders, specify any amendments which are required to be made to this
Schedule in order to comply with any change in Law, regulation or any
requirements from time to time imposed by the Bank of England, the Financial
Services Authority or the European Central Bank (or, in any case, any other
authority which replaces all or any of their functions) and any such
determination shall, in the absence of manifest error, be conclusive and
binding on all the parties to this Agreement.


 


245

















 


SCHEDULE 7


 


PART I - FORM OF
ACCESSION NOTICE


 


THIS ACCESSION NOTICE is entered into
on [·] by [insert name of subsidiary] (the “Subsidiary”)
and Buhrmann N.V. by way of a deed in favour of the Agent, the Arrangers and
the Lenders (each as defined in the Facilities Agreement referred to below).


 


BACKGROUND


 


A                                       By a
€730,000,000 senior facilities agreement (the “Facilities Agreement”) dated 23 December 2003 and
made between Buhrmann N.V. as Parent, Buhrmann US Inc. as Existing Borrower,
the parties named therein as Original Guarantors, Deutsche Bank AG, London Branch
and ABN AMRO Bank N.V. as Arrangers, Deutsche Bank AG, London Branch as Agent,
Deutsche Bank AG, London Branch as Security Trustee and the financial and other
institutions named in it as Lenders, the Lenders agreed to make certain
facilities available to the Existing Borrower.


 


B                                       By
an intercreditor deed (the “Intercreditor
Deed”) dated 23 December 2003 and made between the parties
named therein (the “Obligors”) as
Obligors and Deutsche Bank AG, London Branch as Agent and Security Trustee, the
Obligors agreed to subordinate certain debts and obligations in favour of the
Security Trustee.


 


C                                       The
Parent has requested that the
Subsidiary become an Acceding Guarantor [and an Acceding Borrower]
pursuant to Clause 27.1 (Accession of New
Guarantors) [and Clause 27.2 (Accession of
New Borrowers)]of the Facilities Agreement.


 


NOW THIS DEED WITNESS AS FOLLOWS:


 


1.             Terms defined in the Facilities Agreement have the same
meanings in this Agreement.


 


2.                                      The
Subsidiary is a company duly organised under the laws of [insert relevant jurisdiction].


 


3.                                      The
Subsidiary confirms that it has received from the Parent a true and up-to-date
copy of the Facilities Agreement and the other Finance Documents.


 


4.                                      The
Subsidiary undertakes, upon its becoming a Guarantor [and Borrower], to perform
all the obligations expressed to be undertaken under the Facilities Agreement,
the Intercreditor Deed, and the other Finance Documents by a Guarantor [and
Borrower] and agrees that it shall be bound by the Facilities Agreement, the
Intercreditor Deed and the other Finance Documents in all respects as if it had
been an original party to it as an Original Guarantor [and Borrower]. [Provided that [make such exceptions as may be necessary to limit the obligations of an
Acceding Guarantor and/or Acceding Borrower to ensure that such obligations are
enforceable in accordance with applicable Law]].


 


5.                                      The
Parent confirms (for itself and as Obligors’ Agent for the other Obligors)
that, if the Subsidiary is accepted as an Acceding Guarantor[and Acceding
Borrower], the Parent’s guarantee and indemnity obligations and the guarantee
and indemnity obligations of the other Obligors pursuant to Clause 30 (Guarantee and Indemnity) of the Facilities Agreement will
apply to all of the obligations of the Subsidiary under 


 


246

















 


the Finance Documents as an Acceding Guarantor [and Acceding Borrower]
in all respects in accordance with the terms of the Facilities Agreement as if
such Subsidiary had been party to the Facilities Agreement as an Original
Guarantor and Borrower.


 


6.                                      The
Parent:


 


(a)                                  repeats
the Repeating Representations; and


 


(b)                                  confirms
that no Default is continuing or will occur as a result of the Subsidiary
becoming an Acceding Guarantor [and Acceding Borrower].


 


7.                                      The
Subsidiary makes, in relation to itself, the representations and warranties set
out in Clause 22 (Representations and
Warranties) of the Facilities Agreement.


 


8.                                      The
Subsidiary confirms that it has appointed [·] of [·] to be its process agent for the purposes of
accepting service of Proceedings on it.


 


9.                                      The
Subsidiary’s administrative details for the purposes of the Facilities
Agreement are as follows:


 


Address:


 


Contact:


 


Telephone No:


 


Fax No:


 


10.                               This
Accession Notice and the rights, benefits and obligations of the parties under
this Accession Notice shall be governed by and construed in accordance with
English law.


 


This Accession Notice has been executed as a Deed by the Parent and the
Subsidiary and signed by the Agent on the date written at the beginning of this
Accession Notice.


 


EXECUTED as a DEED by


 


[Name of Subsidiary]


 


acting by


 


EXECUTED as a DEED by


 


BUHRMANN N.V.


 


acting by


 


THE AGENT


 


DEUTSCHE BANK AG LONDON


 


By:


 


247

















 


PART II - ACCESSION
DOCUMENTS


 


1.                                      Corporate Documents


 


In relation to any proposed Acceding Guarantor [and/or Acceding
Borrower], a copy of:


 


(a)                                  its
up-to-date constitutional documents and, if applicable, a good standing
certificate in respect thereof;


 


(b)                                  a board
resolution of such Acceding Guarantor [and/or Acceding Borrower] approving the
execution and delivery of the relevant Accession Notice, its accession to the
Facilities Agreement as a Guarantor [and/or Borrower] (as the case may be) and
the performance of its obligations under the Finance Documents and authorising
a named person to sign such Accession Notice and any other documents to be
delivered by it pursuant thereto;


 


(c)                                  a
duly completed certificate, of a duly authorised officer of such Acceding Guarantor
[and/or Acceding Borrower] in the form of Part II of Schedule 3 (Form of Certificate of Obligor); and


 


(d)                                  the
latest annual audited (if available) financial statements of such Acceding
Guarantor [and/or Acceding Borrower] available as at the date of the relevant
Accession Notice.


 


2.                                      Legal Opinions


 


Legal opinions of such legal advisers as may be acceptable to the Agent
acting reasonably as to the relevant Law (including any tax matters applicable
to such Acceding Guarantor [and/or Acceding Borrower]).


 


3.                                      Necessary Authorisations


 


A copy of any Necessary Authorisation as is in the opinion of counsel
to the Lenders necessary to render the Transaction Documents to which such
Acceding Guarantor [and/or Acceding Borrower] is (or is to be) party legal, valid,
binding and enforceable to make the Finance Documents to which such Acceding
Guarantor [and/or Acceding Borrower] is (or is to be) party admissible in
evidence in such Acceding Guarantor’s [and/or Acceding Borrower’s] jurisdiction
of incorporation and (if different) in England and to enable such Acceding
Guarantor [and/or Acceding Borrower] to perform its obligations thereunder.


 


4.                                      Security Documents


 


At least 2 original copies of any Security Documents required by the
Agent duly executed by the proposed Acceding Guarantor [and/or Acceding
Borrower] together with all documents required to be delivered pursuant to it.


 


5.                                      Process Agent


 


Written confirmation from any process agent referred to in the relevant
Accession Notice that it accepts its appointment as process agent.


 


248

















 


SCHEDULE 8


 


PART I - FORM OF
AUDITORS’ CONFIRMATION


 


	
  To:

  	
  Deutsche Bank AG, London Branch

  
	
   

  	
   

  
	
  Date:

  	
  [·]

  



 


Dear Sirs


 


We refer to the €730,000,000 senior facilities agreement (the “Facilities Agreement”), dated 23 December 2003
and made between Buhrmann N.V. as Parent, Buhrmann US Inc. as Existing
Borrower, the parties named therein as
Original Guarantors, Deutsche Bank AG, London Branch and ABN AMRO Bank N.V. as
Arrangers, Deutsche Bank AG, London
Branch as Agent, Deutsche Bank AG, London Branch as Security Trustee and
the financial and other institutions named in it as Lenders.  Terms defined in the Facilities Agreement
have the same meanings in this Agreement.


 


We refer to the audited financial statements of [        ] for the period ended [        ] (the “Relevant Accounts”)
and the attached certificate of the directors of the Parent, amongst other
things, setting out computations to establish compliance with the financial
covenants set out in Clause 24 (Financial Condition)
of the Facilities Agreement.


 


We confirm that the numbers on which those computations are based have
been properly calculated, based on generally accepted accounting standards,
from the Relevant Accounts.  We further
confirm that [we obtained no knowledge insofar as related to accounting matters
of any Default or Event of Default which has occurred or is continuing/insofar
as related to accounting matters, the following [Default]/[Event of Default]
has occurred and is continuing:] [details of
Default/Event of Default].


 


The confirmation contained in this letter is given on the basis of work
carried out as part of the annual audit of the Parent and the Group and no
additional enquiry or investigation has been made relating to the matters
covered by this confirmation.


 


Yours faithfully


 


 


[Auditors]


 


249

















 


PART II - FORM OF
DIRECTORS’ COMPLIANCE CERTIFICATE


 


To:                              Deutsche Bank AG, London Branch


 


Dear Sirs


 


Certificate dated
[        ] in respect of the period
ended [        ] (the “Certification
Date”)


 


We refer to the €730,000,000 senior facilities agreement (the “Facilities Agreement”) dated 23 December 2003
and made between Buhrmann N.V. as Parent, Buhrmann US Inc. as Existing Borrower, the parties named therein as Original Guarantors, Deutsche Bank AG,
London Branch and ABN AMRO Bank N.V. as Arrangers, Deutsche Bank AG, London
Branch as Agent, Deutsche Bank AG, London Branch as Security Trustee and the
financial and other institutions named in it as Lenders.  Terms defined in the Facilities Agreement have
the same meanings in this Agreement.


 


1.                                      This
Compliance Certificate is provided in accordance with Clause 23.1(d) (Officer’s Certificates) of the Facilities
Agreement.


 


2.                                      We, [        ], being Directors of the Parent as at the Effective Date,
confirm on behalf of the Parent that the financial covenants contained in
Clause 24 (Financial Condition) and the
provisions set out in Clause 25.2 (Conduct
of Business), 25.7 (Additional
Security and Further Assurances), 26.2 (Consolidation, Merger, Purchase or Sale of Assets, etc.),
26.3 (Restricted Payments), 26.4
(Indebtedness), 26.5 (Advances, Investments and Loans) and 26.13
(Assets and EBITDA Attributable to Qualified
Obligors) of the Facilities Agreement have been complied with as at
the Certification Date.


 


3.                                      Our
confirmation is based on the following:


 


[Set out confirmations of Clauses 24 (Financial Condition), 25.2
(Conduct of Business), 25.7 (Additional Security and Further Assurances),
26.2 (Consolidation, Merger, Purchase or Sale of Assets, etc.), 26.3
(Restricted Payments), 26.4 (Indebtedness), 26.5 (Advances, Investments and
Loans) and 26.13 (Assets and EBITDA Attributable to Qualified Obligors) and of
each element required to determine by such clause]


 


4.                                      We
further confirm that no Default is continuing as at the Certification Date.


 


	
  For and on behalf of Parent

  	
   

  
	
   

  	
   

  
	
  Signed:

  	
  Signed:

  
	
   

  	
   

  
	
  Name:

  	
  Name:

  
	
   

  	
   

  
	
  Title:

  	
  Title:

  
	
   

  	
   

  
	
  Date:

  	
  Date:

  



 


250














 


SCHEDULE 9

GROUP STRUCTURE


 


	
   

  	
  Buhrmann Structure – the
  Netherlands 

   Holding, staff and dormant companies

  



 





 








	
   

  	
  * branchar office in United Kingdom

  
	
   

  	
  (1) 1% held by each of Buhrmann
  International B V and Plantin S A

  






 


251

















 


Buhrman Structure – the Netherlands 

              Operational
companies


 





 


252

















 


	
   

  	
  Buhrmann
  Structure – Belgium, France, Luxembourg

  



 





 


253

















 


	
   

  	
  Buhrmann
  Structure Germany

  



 





 


254

















 


	
   

  	
  Buhrmann
  Structure – Austria and Switzerland

  
	
   

  	
   

  






 


255

















 


	
   

  	
  Buhrmann
  Structure – United Kingdom and Ireland

   (excluding dormant Corporate Express companies)

  



 





 


256

















 


	
   

  	
  Buhrmann
  Structure – Sourthern Europe
          Italy,
  Spain, Portugal, Greece

  
	
   

  	
   

  






 


257

















 


	
   

  	
  Buhrmann
  Structure – Sweden, Finland and Poland

  



 





 


258

















 


	
   

  	
  Strictly confidential – for internal use only

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Buhrmann
  Structure – Rest of the World

  	
   

  
	
   

  	
  Central
  Europe, South East Asia, South Africa, Antilles

  	
   

  






 


259

















 


	
   

  	
    Strictly confidential – for internal use
  only

  
	
   

  	
   

  






 


260

















 


	
   

  	
  Strictly confidential – for internal use only

  	
   

  
	
   

  	
  Buhrmann Structure – Austra lia/New
  Zealand

  	
   

  



 





 


261














 


SCHEDULE 10


 


PART I - EXISTING LIENS


 


	
  Debtor Name

  	
   

  	
  Jurisdiction

  Searched

  	
   

  	
  File

  Date

  	
   

  	
  File Number

  	
   

  	
  Type

  	
   

  	
  Secured Party

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ASAP Software Express, Inc.

  	
   

  	
  California SOS

  	
   

  	
  11/01/99

  	
   

  	
  9930860694

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
  ASAP Software Express, Inc.

  	
   

  	
  Indiana SOS

  	
   

  	
  11/01/99

  	
   

  	
  2287909

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
  ASAP Software Express, Inc.

  	
   

  	
  Colorado SOS

  	
   

  	
  11/01/99

  	
   

  	
  19992060826

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  01/02/01

  	
   

  	
  20012000382

  	
   

  	
  UCC

  	
   

  	
  Heller Financial Leasing

  
	
   

  	
   

  	
   

  	
   

  	
  03/02/01

  	
   

  	
  20012016614

  	
   

  	
  UCC

  	
   

  	
  Heller Financial Leasing

  
	
   

  	
   

  	
   

  	
   

  	
  04/13/01

  	
   

  	
  20012028803

  	
   

  	
  UCC

  	
   

  	
  Heller Financial Leasing

  
	
   

  	
   

  	
   

  	
   

  	
  05/25/01

  	
   

  	
  20012041256

  	
   

  	
  UCC

  	
   

  	
  Fleet Capital Corp.

  
	
   

  	
   

  	
   

  	
   

  	
  06/27/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  05/25/01

  	
   

  	
  20012041257

  	
   

  	
  UCC

  	
   

  	
  Fleet Capital Corp.

  
	
   

  	
   

  	
   

  	
   

  	
  06/27/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  05/25/01

  	
   

  	
  20012041258

  	
   

  	
  UCC

  	
   

  	
  Fleet Capital Corp.

  
	
   

  	
   

  	
   

  	
   

  	
  06/27/01

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
  ASAP Software Express, Inc.

  	
   

  	
  Massachusetts SOS

  	
   

  	
  11/01/99

  	
   

  	
  99671684

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
  ASAP Software Express, Inc.

  	
   

  	
  Marlborough, MA

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  CLEAR

  
	
  ASAP Software Express, Inc.

  	
   

  	
  Maryland SOS

  	
   

  	
  03/27/00

  	
   

  	
  0000000181040299

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  06/07/00

  	
   

  	
  0000000181048572

  	
   

  	
  UCC

  	
   

  	
  Fleet Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  07/24/02

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  06/14/00

  	
   

  	
  0000000181049467

  	
   

  	
  UCC

  	
   

  	
  Fleet Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  06/23/00

  	
   

  	
  0000000181050648

  	
   

  	
  UCC

  	
   

  	
  Fleet Capital Corporation

  
	
  ASAP Software Express, Inc.

  	
   

  	
  Michigan SOS

  	
   

  	
  11/01/99

  	
   

  	
  08292C

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
  ASAP Software Express, Inc.

  	
   

  	
  Middlesex, MA, Southern District

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  CLEAR

  
	
  ASAP Software Express, Inc.

  	
   

  	
  St. Louis City, MO

  	
   

  	
  11/01/99

  	
   

  	
  6996

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
  ASAP Software Express, Inc.

  	
   

  	
  St. Louis, MO

  	
   

  	
  11/01/99

  	
   

  	
  12215

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
  ASAP Software Express, Inc.

  	
   

  	
  Arizona SOS

  	
   

  	
  11/01/99

  	
   

  	
  1090976

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
  ASAP Software Express, Inc.

  	
   

  	
  Florida SOS

  	
   

  	
  11/01/99

  	
   

  	
  990000248433

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
  ASAP Software Express, Inc.

  	
   

  	
  Minnesota SOS

  	
   

  	
  11/01/99

  	
   

  	
  2174458

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
  ASAP Software Express, Inc.

  	
   

  	
  Missouri-SOS

  	
   

  	
  11/01/99

  	
   

  	
  3089262

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  05/19/00

  	
   

  	
  4047897

  	
   

  	
  UCC

  	
   

  	
  Fleet Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  06/27/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  05/19/00

  	
   

  	
  4047898

  	
   

  	
  UCC

  	
   

  	
  Fleet Capital Corporation

  



 


262

















 


	
  Debtor Name

  	
   

  	
  Jurisdiction

  Searched

  	
   

  	
  File

  Date

  	
   

  	
  File Number

  	
   

  	
  Type

  	
   

  	
  Secured Party

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  05/19/00

  	
   

  	
  4047899

  	
   

  	
  UCC

  	
   

  	
  Fleet Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  06/27/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
  ASAP Software Express, Inc.

  	
   

  	
  New Jersey SOS

  	
   

  	
  11/01/99

  	
   

  	
  1938710

  	
   

  	
  UCC1

  	
   

  	
  Bankers Trust Company as Collateral Agent

  
	
   

  	
   

  	
   

  	
   

  	
  04/27/01

  	
   

  	
  2038414

  	
   

  	
  UCC1

  	
   

  	
  Fleet Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  04/27/01

  	
   

  	
  2038415

  	
   

  	
  UCC1

  	
   

  	
  Fleet Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  04/27/01

  	
   

  	
  2038416

  	
   

  	
  UCC1

  	
   

  	
  Fleet Capital Corporation

  
	
  ASAP Software Express, Inc.

  	
   

  	
  New York SOS

  	
   

  	
  11/01/99

  	
   

  	
  219747

  	
   

  	
  UCC1

  	
   

  	
  Bankers Trust Company as Collateral Agent

  
	
  ASAP Software Express, Inc.

  	
   

  	
  New York County, NY County Clerk

  	
   

  	
  11/04/99

  	
   

  	
  99PN60129

  	
   

  	
  UCC1

  	
   

  	
  Bankers Trust Company as Collateral Agent

  
	
  ASAP Software Express, Inc.

  	
   

  	
  North Carolina SOS

  	
   

  	
  05/26/00

  	
   

  	
  20000054086

  	
   

  	
  UCC1

  	
   

  	
  Fleet Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  05/26/00

  	
   

  	
  20000054087

  	
   

  	
  UCC1

  	
   

  	
  Fleet Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  05/26/00

  	
   

  	
  20000054088

  	
   

  	
  UCC1

  	
   

  	
  Fleet Capital Corporation

  
	
  ASAP Software Express, Inc.

  	
   

  	
  Ohio SOS

  	
   

  	
  11/01/99

  	
   

  	
  AP0192629

  	
   

  	
  UCC1

  	
   

  	
  Bankers Trust Company as Collateral Agent

  
	
  ASAP Software Express, Inc.

  	
   

  	
  Cuyahoga County, OH County Recorder

  	
   

  	
  11/01/99

  	
   

  	
  199911019108

  	
   

  	
  UCC1

  	
   

  	
  Bankers Trust Company as Collateral Agent

  
	
  ASAP Software Express, Inc.

  	
   

  	
  Franklin County, OH County Recorder

  	
   

  	
  11/01/99

  	
   

  	
  199911010273821

  	
   

  	
  UCC1

  	
   

  	
  Bankers Trust Company as Collateral Agent

  
	
   

  	
   

  	
   

  	
   

  	
  12/11/03

  	
   

  	
  97TX-05-008987

  	
   

  	
  JL

  	
   

  	
  Ohio State Department Taxation

  
	
  ASAP Software Express, Inc.

  	
   

  	
  Hamilton County, OH County Recorder

  	
   

  	
  11/02/99

  	
   

  	
  8110-1011

  	
   

  	
  UCC1

  	
   

  	
  Bankers Trust Company as Collateral Agent

  
	
  ASAP Software Express, Inc.

  	
   

  	
  Texas SOS

  	
   

  	
  11/01/99

  	
   

  	
  9900218668

  	
   

  	
  UCC1

  	
   

  	
  Bankers Trust Company as Collateral Agent

  
	
  ASAP Software Express, Inc.

  	
   

  	
  Washington SOS

  	
   

  	
  11/01/99

  	
   

  	
  993050008

  	
   

  	
  UCC1

  	
   

  	
  Bankers Trust Company as Collateral Agent

  
	
  ASAP Software Express, Inc.

  	
   

  	
  Wisconsin SOS

  	
   

  	
  11/01/99

  	
   

  	
  07501895534

  	
   

  	
  UCC1

  	
   

  	
  Bankers Trust Company as Collateral Agent

  
	
  Buhrmann Silver US LLC

  	
   

  	
  Delaware SOS

  	
   

  	
  10/04/01

  	
   

  	
  11165807

  	
   

  	
  UCC

  	
   

  	
  Bankers Trustee Company

  
	
   

  	
   

  	
   

  	
   

  	
  07/18/02

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
  Buhrmann US Holdings, Inc.

  	
   

  	
  Delaware SOS

  	
   

  	
  11/18/02

  	
   

  	
  22898074

  	
   

  	
  UCC

  	
   

  	
  Deutsche Bank Trust Company

  
	
  CE Philadelphia Real Estate, Inc.

  	
   

  	
   

  	
   

  	
  11/18/02

  	
   

  	
  22898090

  	
   

  	
  UCC

  	
   

  	
  Deutsche Bank Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  11/18/02

  	
   

  	
  22898132

  	
   

  	
  UCC

  	
   

  	
  Deutsche Bank Trust Company

  
	
  CE Philadelphia Real Estate, Inc.

  	
   

  	
  Colorado-SOS

  	
   

  	
  03/15/01

  	
   

  	
  20012020383

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
  Corporate Express Document & Print Management, Inc.

  	
   

  	
  Arkansas SOS

  	
   

  	
  11/02/99

  	
   

  	
  00-01214702

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  



 


263

















 


	
  Debtor Name

  	
   

  	
  Jurisdiction

  Searched

  	
   

  	
  File

  Date

  	
   

  	
  File Number

  	
   

  	
  Type

  	
   

  	
  Secured Party

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Corporate Express Document & Print Management, Inc.

  	
   

  	
  Pulaski, AR

  	
   

  	
  11/02/99

  	
   

  	
  99086471

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
  Corporate Express Document & Print Management, Inc.

  	
   

  	
  California SOS

  	
   

  	
  11/02/99

  	
   

  	
  9930961109

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  02/18/00

  	
   

  	
  0005360278

  	
   

  	
  UCC

  	
   

  	
  LaSalle Equipment LP

  
	
   

  	
   

  	
   

  	
   

  	
  05/12/00

  	
   

  	
  0013760230

  	
   

  	
  UCC

  	
   

  	
  LaSalle Equipment LP

  
	
   

  	
   

  	
   

  	
   

  	
  06/26/00

  	
   

  	
  0018060442

  	
   

  	
  UCC

  	
   

  	
  Wells Fargo Equipment Finance

  
	
   

  	
   

  	
   

  	
   

  	
  08/02/00

  	
   

  	
  0021760360

  	
   

  	
  UCC

  	
   

  	
  LaSalle Equipment LP

  
	
   

  	
   

  	
   

  	
   

  	
  08/22/00

  	
   

  	
  0023660928

  	
   

  	
  UCC

  	
   

  	
  Heller Financial

  
	
  Corporate Express Document & Print Management, Inc.

  	
   

  	
  Delaware SOS

  	
   

  	
  04/11/03

  	
   

  	
  31063976

  	
   

  	
  UCC

  	
   

  	
  UPS Capital Corp.

  
	
  Corporate Express Document & Print Management, Inc.

  	
   

  	
  Illinois SOS

  	
   

  	
  11/02/99

  	
   

  	
  4117539

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  12/15/99

  	
   

  	
  4132642

  	
   

  	
  UCC

  	
   

  	
  LaSalle Equipment LP

  
	
   

  	
   

  	
   

  	
   

  	
  01/20/00

  	
   

  	
  “

  	
   

  	
  Assgn

  	
   

  	
  Wells Fargo Equipment Finance

  
	
   

  	
   

  	
   

  	
   

  	
  05/19/00

  	
   

  	
  4215145

  	
   

  	
  UCC

  	
   

  	
  Fleet Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  05/12/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  06/27/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  05/19/00

  	
   

  	
  4215146

  	
   

  	
  UCC

  	
   

  	
  Fleet Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  05/12/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  06/27/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  05/19/00

  	
   

  	
  4215147

  	
   

  	
  UCC

  	
   

  	
  Fleet Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  05/12/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  06/27/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
  Corporate Express Document & Print Management, Inc.

  	
   

  	
  Kansas SOS

  	
   

  	
  12/11/98

  	
   

  	
  2513415

  	
   

  	
  UCC

  	
   

  	
  Fleet Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  05/04/99

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  11/02/99

  	
   

  	
  2967461

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  02/05/01

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  Fleet Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  02/06/01

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  



 


264

















 


	
  Debtor Name

  	
   

  	
  Jurisdiction

  Searched

  	
   

  	
  File

  Date

  	
   

  	
  File Number

  	
   

  	
  Type

  	
   

  	
  Secured Party

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  05/22/00

  	
   

  	
  3639374

  	
   

  	
  UCC

  	
   

  	
  Fleet Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  07/09/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  05/22/00

  	
   

  	
  3639408

  	
   

  	
  UCC

  	
   

  	
  Fleet Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  07/09/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  05/22/00

  	
   

  	
  3639424

  	
   

  	
  UCC

  	
   

  	
  Fleet Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  07/09/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  06/22/03

  	
   

  	
  3739208

  	
   

  	
  UCC

  	
   

  	
  Wells Fargo Equipment Finance

  
	
   

  	
   

  	
   

  	
   

  	
  08/24/00

  	
   

  	
  3926722

  	
   

  	
  UCC

  	
   

  	
  Heller Financial

  
	
   

  	
   

  	
   

  	
   

  	
  01/31/01

  	
   

  	
  4397006

  	
   

  	
  UCC

  	
   

  	
  Fleet Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  07/16/01

  	
   

  	
  4950914*

  	
   

  	
  UCC

  	
   

  	
  Primesource Corporation

  
	
  Corporate Express Document & Print Management, Inc.

  	
   

  	
  Colorado-SOS

  	
   

  	
  03/11/03

  	
   

  	
  20032026474

  	
   

  	
  UCC

  	
   

  	
  UPS Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  04/30/03

  	
   

  	
  20032046260

  	
   

  	
  UCC

  	
   

  	
  UPS Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  05/02/03

  	
   

  	
  20032046988

  	
   

  	
  UCC

  	
   

  	
  UPS Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  05/28/03

  	
   

  	
  20032056465

  	
   

  	
  UCC

  	
   

  	
  UPS Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  07/23/03

  	
   

  	
  20032079850

  	
   

  	
  UCC

  	
   

  	
  UPS Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  09/19/03

  	
   

  	
  20032102792

  	
   

  	
  UCC

  	
   

  	
  UPS Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  10/10/03

  	
   

  	
  20032111005

  	
   

  	
  UCC

  	
   

  	
  UPS Capital Corporation

  
	
  Corporate Express Document & Print Management, Inc.

  	
   

  	
  Caddo, LA

  	
   

  	
  11/08/99

  	
   

  	
  09-982181

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
  Corporate Express Document & Print Management, Inc.

  	
   

  	
  Massachusetts, SOS

  	
   

  	
  11/02/99

  	
   

  	
  99672013

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
  Corporate Express Document & Print Management, Inc.

  	
   

  	
  Norfolk, MA

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  CLEAR

  
	
  Corporate Express Document & Print Management, Inc.

  	
   

  	
  Needham, MA

  	
   

  	
  11/02/99

  	
   

  	
  368

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
  Corporate Express Document & Print Management, Inc.

  	
   

  	
  Maryland SOS

  	
   

  	
  03/27/00

  	
   

  	
  0000000181040296

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  



 


265

















 


	
  Debtor Name

  	
   

  	
  Jurisdiction

  Searched

  	
   

  	
  File

  Date

  	
   

  	
  File Number

  	
   

  	
  Type

  	
   

  	
  Secured Party

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  06/07/00

  	
   

  	
  0000000181048572

  	
   

  	
  UCC

  	
   

  	
  Fleet Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  07/24/02

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  06/14/00

  	
   

  	
  0000000181049467

  	
   

  	
  UCC

  	
   

  	
  Fleet Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  06/23/00

  	
   

  	
  0000000181050648

  	
   

  	
  UCC

  	
   

  	
  Fleet Capital Corporation

  
	
  Corporate Express Document & Print Management, Inc.

  	
   

  	
  Fulton, GA

  	
   

  	
  11/02/99

  	
   

  	
  60-99-21176

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
  Corporate Express Document & Print Management, Inc.

  	
   

  	
  Mississippi SOS

  	
   

  	
  11/02/99

  	
   

  	
  1376808

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
  Corporate Express Document & Print Management, Inc.

  	
   

  	
  Hinds, MS

  	
   

  	
  11/02/99

  	
   

  	
  381780

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
  Corporate Express Document & Print Management, Inc.

  	
   

  	
  Greene, MO

  	
   

  	
  11/02/99

  	
   

  	
  005412

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
  Corporate Express Document & Print Management, Inc.

  	
   

  	
  St. Louis City, MO

  	
   

  	
  11/17/99

  	
   

  	
  7306

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
  Corporate Express Document & Print Management, Inc.

  	
   

  	
  St. Louis, MO

  	
   

  	
  11/02/99

  	
   

  	
  12281

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
  Corporate Express Document & Print Management, Inc.

  	
   

  	
  Michigan SOS

  	
   

  	
  11/02/99

  	
   

  	
  08327C

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  12/17/03

  	
   

  	
  “

  	
   

  	
  Correction

  	
   

  	
  “

  
	
  Corporate Express Document & Print Management, Inc.

  	
   

  	
  Arizona SOS

  	
   

  	
  11/02/99

  	
   

  	
  1091308

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  



 


266

















 


	
  Debtor Name

  	
   

  	
  Jurisdiction

  Searched

  	
   

  	
  File

  Date

  	
   

  	
  File Number

  	
   

  	
  Type

  	
   

  	
  Secured Party

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Corporate Express Document & Print Management, Inc.

  	
   

  	
  Connecticut SOS

  	
   

  	
  11/02/99

  	
   

  	
  0001959074

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  12/04/00

  	
   

  	
  0002038531

  	
   

  	
  UCC

  	
   

  	
  LaSalle Equipment LP

  
	
  Corporate Express Document & Print Management, Inc.

  	
   

  	
  Iowa SOS

  	
   

  	
  11/02/99

  	
   

  	
  P053053

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
  Corporate Express Document & Print Management, Inc.

  	
   

  	
  Minnesota SOS

  	
   

  	
  11/02/99

  	
   

  	
  2174744

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  06/22/00

  	
   

  	
  2238365

  	
   

  	
  UCC

  	
   

  	
  Wells Fargo Equipment Finance

  
	
  Corporate Express Document & Print Management, Inc.

  	
   

  	
  Missouri SOS

  	
   

  	
  11/02/99

  	
   

  	
  3089541

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  05/19/00

  	
   

  	
  4047897

  	
   

  	
  UCC

  	
   

  	
  Fleet Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  06/27/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  05/19/00

  	
   

  	
  4047899

  	
   

  	
  UCC

  	
   

  	
  Fleet Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  06/27/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
  Corporate Express Document & Print Management, Inc.

  	
   

  	
  Nebraska SOS

  	
   

  	
  11/12/99

  	
   

  	
  9999909605

  	
   

  	
  UCC1

  	
   

  	
  LaSalle Equipment Limited Partnership

  
	
   

  	
   

  	
   

  	
   

  	
  11/24/99

  	
   

  	
  9999919486

  	
   

  	
  UCC1

  	
   

  	
  LaSalle Equipment Limited Partnership

  
	
   

  	
   

  	
   

  	
   

  	
  12/13/99

  	
   

  	
  9999932544

  	
   

  	
  UCC1

  	
   

  	
  LaSalle Systems Leasing

  
	
   

  	
   

  	
   

  	
   

  	
  01/26/00

  	
   

  	
  “

  	
   

  	
  Assign

  	
   

  	
  Wells Fargo Equipment Inc.

  
	
   

  	
   

  	
   

  	
   

  	
  12/13/99

  	
   

  	
  9999932545

  	
   

  	
  UCC1

  	
   

  	
  LaSalle Systems Leasing

  
	
   

  	
   

  	
   

  	
   

  	
  01/26/00

  	
   

  	
  “

  	
   

  	
  Assign

  	
   

  	
  Wells Fargo Equipment Finance, Inc

  
	
   

  	
   

  	
   

  	
   

  	
  12/13/99

  	
   

  	
  9999932546

  	
   

  	
  UCC1

  	
   

  	
  LaSalle Systems Leasing

  
	
   

  	
   

  	
   

  	
   

  	
  01/26/00

  	
   

  	
  “

  	
   

  	
  Assign

  	
   

  	
  Wells Fargo Equipment Finance, Inc

  
	
   

  	
   

  	
   

  	
   

  	
  12/13/99

  	
   

  	
  9999932547

  	
   

  	
  UCC1

  	
   

  	
  LaSalle Systems Leasing

  
	
   

  	
   

  	
   

  	
   

  	
  01/26/00

  	
   

  	
  “

  	
   

  	
  Assign

  	
   

  	
  Wells Fargo Equipment Finance, Inc

  
	
   

  	
   

  	
   

  	
   

  	
  01/26/00

  	
   

  	
  9900018659

  	
   

  	
  UCC1

  	
   

  	
  Forsythe/McArthur Associates, Inc.

  



 


267

















 


	
  Debtor Name

  	
   

  	
  Jurisdiction

  Searched

  	
   

  	
  File

  Date

  	
   

  	
  File Number

  	
   

  	
  Type

  	
   

  	
  Secured Party

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  02/22/00

  	
   

  	
  9900027086

  	
   

  	
  UCC1

  	
   

  	
  LaSalle Equipment Limited Partnership

  
	
   

  	
   

  	
   

  	
   

  	
  03/31/00

  	
   

  	
  9900040540

  	
   

  	
  UCC1

  	
   

  	
  LaSalle Equipment Limited Partnership

  
	
   

  	
   

  	
   

  	
   

  	
  05/15/00

  	
   

  	
  9900054225

  	
   

  	
  UCC1

  	
   

  	
  LaSalle Equipment Limited Partnership

  
	
   

  	
   

  	
   

  	
   

  	
  05/19/00

  	
   

  	
  9900056160

  	
   

  	
  UCC1

  	
   

  	
  Fleet Capital Corporation for itself and as agent

  
	
   

  	
   

  	
   

  	
   

  	
  06/27/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  05/19/00

  	
   

  	
  9900056164

  	
   

  	
  UCC1

  	
   

  	
  Fleet Capital Corporation for itself and as agent

  
	
   

  	
   

  	
   

  	
   

  	
  06/27/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  05/19/00

  	
   

  	
  9900056179

  	
   

  	
  UCC1

  	
   

  	
  Fleet Capital Corporation for itself and as agent

  
	
   

  	
   

  	
   

  	
   

  	
  06/27/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  05/22/00

  	
   

  	
  9900056280

  	
   

  	
  UCC1

  	
   

  	
  LaSalle Equipment Limited Partnership

  
	
   

  	
   

  	
   

  	
   

  	
  06/23/00

  	
   

  	
  9900065233

  	
   

  	
  UCC1

  	
   

  	
  Wells Fargo Equipment Finance, Inc

  
	
   

  	
   

  	
   

  	
   

  	
  08/04/00

  	
   

  	
  9900073913

  	
   

  	
  UCC1

  	
   

  	
  LaSalle Equipment Limited Partnership

  
	
   

  	
   

  	
   

  	
   

  	
  08/04/00

  	
   

  	
  9900073917

  	
   

  	
  UCC1

  	
   

  	
  LaSalle Equipment Limited Partnership

  
	
   

  	
   

  	
   

  	
   

  	
  01/05/01

  	
   

  	
  9901106807

  	
   

  	
  UCC1

  	
   

  	
  Fleet Capital Corporation for itself and as agent

  
	
   

  	
   

  	
   

  	
   

  	
  05/05/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  01/05/01

  	
   

  	
  9901106810

  	
   

  	
  UCC1

  	
   

  	
  Fleet Capital Corporation for itself and as agent

  
	
   

  	
   

  	
   

  	
   

  	
  05/05/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  06/25/01

  	
   

  	
  9901151414

  	
   

  	
  UCC1

  	
   

  	
  LaSalle Systems Leasing

  
	
   

  	
   

  	
   

  	
   

  	
  09/19/01

  	
   

  	
  9901167244-5

  	
   

  	
  UCC1

  	
   

  	
  Bankers Trust Company as Collateral Agent

  
	
   

  	
   

  	
   

  	
   

  	
  09/19/01

  	
   

  	
  9901167286-3

  	
   

  	
  UCC1

  	
   

  	
  Bankers Trust Company as Collateral Agent

  
	
   

  	
   

  	
   

  	
   

  	
  11/16/01

  	
   

  	
  9901178029-2

  	
   

  	
  UCC1

  	
   

  	
  LaSalle Systems Leasing

  
	
   

  	
   

  	
   

  	
   

  	
  11/16/01

  	
   

  	
  “

  	
   

  	
  Assign

  	
   

  	
  LaSalle Equipment Limited Partnership

  
	
   

  	
   

  	
   

  	
   

  	
  01/22/02

  	
   

  	
  9902190403-4

  	
   

  	
  UCC1

  	
   

  	
  Fleet Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  03/13/02

  	
   

  	
  “

  	
   

  	
  Assign

  	
   

  	
  General Electric Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  02/12/03

  	
   

  	
  9903257823-6

  	
   

  	
  UCC1

  	
   

  	
  UPS Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  05/05/03

  	
   

  	
  9903273594-9

  	
   

  	
  UCC1

  	
   

  	
  Fleet Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  06/27/03

  	
   

  	
  9903283139-7

  	
   

  	
  UCC1

  	
   

  	
  Fleet Capital Corporation

  
	
  Corporate Express Document & Print Management, Inc.

  	
   

  	
  New Jersey SOS

  	
   

  	
  11/03/99

  	
   

  	
  1938916

  	
   

  	
  UCC1

  	
   

  	
  Bankers Trust Company as Collateral Agent

  
	
   

  	
   

  	
   

  	
   

  	
  05/12/00

  	
   

  	
  1974443

  	
   

  	
  UCC1

  	
   

  	
  LaSalle Equipment Limited Partnership

  



 


268














 


	
  Debtor Name

  	
   

  	
  Jurisdiction

  Searched

  	
   

  	
  File

  Date

  	
   

  	
  File Number

  	
   

  	
  Type

  	
   

  	
  Secured Party

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Corporate Express
  Document & Print Management, Inc.

  	
   

  	
  New Mexico SOS

  	
   

  	
  11/02/99

  	
   

  	
  991102034

  	
   

  	
  UCC1

  	
   

  	
  Bankers Trust Company as
  Collateral Agent

  
	
   

  	
   

  	
   

  	
   

  	
  12/09/99

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
  Corporate Express
  Document & Print Management, Inc.

  	
   

  	
  New York SOS

  	
   

  	
  11/02/99

  	
   

  	
  220870

  	
   

  	
  UCC1

  	
   

  	
  Bankers Trust Company as
  Collateral Agent

  
	
  Corporate Express
  Document & Print Management, Inc.

  	
   

  	
  Nassau County, NY County
  Clerk

  	
   

  	
  11/04/99

  	
   

  	
  UC99-18002

  	
   

  	
  UCC1

  	
   

  	
  Bankers Trust Company as
  Collateral Agent

  
	
  Corporate Express
  Document & Print Management, Inc.

  	
   

  	
  North Carolina SOS

  	
   

  	
  05/26/00

  	
   

  	
  20000054086

  	
   

  	
  UCC1

  	
   

  	
  Fleet Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  05/26/00

  	
   

  	
  20000054087

  	
   

  	
  UCC1

  	
   

  	
  Fleet Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  05/26/00

  	
   

  	
  20000054088

  	
   

  	
  UCC1

  	
   

  	
  Fleet Capital Corporation

  
	
  Corporate Express
  Document & Print Management, Inc.

  	
   

  	
  Wake County, NC Recorder
  of Deeds

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  CLEAR

  
	
  Corporate Express
  Document & Print Management, Inc.

  	
   

  	
  Ohio SOS

  	
   

  	
  11/02/99

  	
   

  	
  AP0192894

  	
   

  	
  UCC1

  	
   

  	
  Bankers Trust Company as
  Collateral Agent

  
	
  Corporate Express
  Document & Print Management, Inc.

  	
   

  	
  Cuyahoga County, OH County
  Recorder

  	
   

  	
  11/02/99

  	
   

  	
  199911029121

  	
   

  	
  UCC1

  	
   

  	
  Bankers Trust Company as
  Collateral Agent

  
	
  Corporate Express
  Document & Print Management, Inc.

  	
   

  	
  Mahoning County, OH County
  Recorder

  	
   

  	
  11/02/99

  	
   

  	
  1999-7970

  	
   

  	
  UCC1

  	
   

  	
  Bankers Trust Company as
  Collateral Agent

  
	
  Corporate Express
  Document & Print Management, Inc

  	
   

  	
  Oklahoma County County
  Clerk

  	
   

  	
  11/02/99

  	
   

  	
  N-7651

  	
   

  	
  UCC1

  	
   

  	
  Bankers Trust Company

  



 


269

















 


	
  Debtor Name

  	
   

  	
  Jurisdiction

  Searched

  	
   

  	
  File

  Date

  	
   

  	
  File Number

  	
   

  	
  Type

  	
   

  	
  Secured Party

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Corporate Express Document & Print
  Management, Inc.

  	
   

  	
  Oregon SOS

  	
   

  	
  11/02/99

  	
   

  	
  488251

  	
   

  	
  UCC1

  	
   

  	
  Bankers
  Trust Company as Collateral Agent

  
	
   

  	
   

  	
   

  	
   

  	
  11/02/99

  	
   

  	
  551791

  	
   

  	
  UCC1

  	
   

  	
  LaSalle
  Systems Leasing, Inc

  
	
  Corporate Express Document & Print
  Management, Inc.

  	
   

  	
  Franklin
  County, NC Recorder of Deeds

  	
   

  	
  11/02/99

  	
   

  	
  99-1081

  	
   

  	
  UCC1

  	
   

  	
  Bankers
  Trust Company as Collateral Agent

  
	
  Corporate Express Document & Print
  Management, Inc.

  	
   

  	
  Pennsylvania
  SOS

  	
   

  	
  02/01/00

  	
   

  	
  31231288

  	
   

  	
  UCC1

  	
   

  	
  Bankers
  Trust Company as Collateral Agent

  
	
  Corporate Express Document & Print
  Management, Inc.

  	
   

  	
  Chester
  County, PA

  	
   

  	
  11/03/99

  	
   

  	
  ST993661

  	
   

  	
  UCC1

  	
   

  	
  Bankers
  Trust Company as Collateral Agent

  
	
  Corporate Express Document & Print Management, Inc.

  	
   

  	
  South Dakota
  SOS

  	
   

  	
  11/08/99

  	
   

  	
  993121102372

  	
   

  	
  UCC1

  	
   

  	
  Bankers
  Trust Company as Collateral Agent

  
	
  Corporate Express Document & Print
  Management, Inc.

  	
   

  	
  Tennessee
  SOS

  	
   

  	
  01/08/99

  	
   

  	
  993001746

  	
   

  	
  UCC1

  	
   

  	
  Bankers
  Trust Company as Collateral Agent

  
	
   

  	
   

  	
   

  	
   

  	
  02/17/99

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  03/22/00

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  03/22/00

  	
   

  	
  300017072

  	
   

  	
  UCC1

  	
   

  	
  Bankers
  Trust Company as Collateral Agent

  
	
  Corporate Express Document & Print
  Management, Inc.

  	
   

  	
  Texas SOS

  	
   

  	
  11/03/99

  	
   

  	
  9900220911

  	
   

  	
  UCC1

  	
   

  	
  Bankers
  Trust Company as Collateral Agent

  
	
   

  	
   

  	
   

  	
   

  	
  11/10/99

  	
   

  	
  9900226174

  	
   

  	
  UCC1

  	
   

  	
  LaSalle
  Systems Leasing, Inc

  
	
   

  	
   

  	
   

  	
   

  	
  11/10/99

  	
   

  	
  “

  	
   

  	
  Assign

  	
   

  	
  LaSalle
  Equipment Limited Partnership

  
	
   

  	
   

  	
   

  	
   

  	
  05/19/00

  	
   

  	
  0000201151

  	
   

  	
  UCC1

  	
   

  	
  LaSalle
  Systems Leasing, Inc

  
	
   

  	
   

  	
   

  	
   

  	
  05/19/00

  	
   

  	
  “

  	
   

  	
  Assign

  	
   

  	
  LaSalle
  Equipment Limited Partnership

  



 


270

















 


	
  Debtor Name

  	
   

  	
  Jurisdiction

  Searched

  	
   

  	
  File

  Date

  	
   

  	
  File Number

  	
   

  	
  Type

  	
   

  	
  Secured Party

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  08/22/00

  	
   

  	
  0000568289

  	
   

  	
  UCC1

  	
   

  	
  Forsythe/McArthur
  Associates, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
  10/09/00

  	
   

  	
  “

  	
   

  	
  Assign

  	
   

  	
  Heller
  Financial

  
	
  Corporate Express Document & Print
  Management, Inc.

  	
   

  	
  Utah SOS

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  CLEAR

  
	
  Corporate Express Document & Print
  Management, Inc.

  	
   

  	
  Virginia

  	
   

  	
  11/02/99

  	
   

  	
  9911027839

  	
   

  	
  UCC1

  	
   

  	
  Bankers
  Trust Company as Collateral Agent

  
	
  Corporate Express Document & Print
  Management, Inc.

  	
   

  	
  Hanover
  County, VA County Clerk

  	
   

  	
  11/03/99

  	
   

  	
  99-1136

  	
   

  	
  UCC1

  	
   

  	
  Bankers
  Trust Company as Collateral Agent

  
	
  Corporate Express Document & Print
  Management, Inc.

  	
   

  	
  Henrico
  County, VA Clerk of the Circuit Court

  	
   

  	
  11/02/99

  	
   

  	
  99-2040

  	
   

  	
  UCC1

  	
   

  	
  General
  Electric Capital Corporation

  
	
  Corporate Express Document & Print
  Management, Inc.

  	
   

  	
  Washington
  SOS

  	
   

  	
  11/02/99

  	
   

  	
  993060124

  	
   

  	
  UCC1

  	
   

  	
  Bankers
  Trust Company as Collateral Agent

  
	
   

  	
   

  	
   

  	
   

  	
  12/09/99

  	
   

  	
  993430032

  	
   

  	
  UCC1

  	
   

  	
  LaSalle
  Equipment Limited Partnership

  
	
   

  	
   

  	
   

  	
   

  	
  01/24/00

  	
   

  	
  “

  	
   

  	
  Assign

  	
   

  	
  Wells Fargo
  Equipment Finance, Inc

  
	
  Corporate Express Document & Print
  Management, Inc.

  	
   

  	
  Wisconsin
  SOS

  	
   

  	
  11/02/99

  	
   

  	
  07501895802

  	
   

  	
  UCC1

  	
   

  	
  Bankers
  Trust Company as Collateral Agent

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Alabama SOS

  	
   

  	
  11/01/99

  	
   

  	
  1999-45199

  	
   

  	
  UCC

  	
   

  	
  Bankers Trust
  Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Arkansas SOS

  	
   

  	
  11/01/99

  	
   

  	
  00-01214596

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Pulaski Co.,
  AR

  	
   

  	
  11/01/99

  	
   

  	
  99086175

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Washington
  Co., AR

  	
   

  	
  05/11/00

  	
   

  	
  2000-1499

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  



 


271

















 


	
  Debtor Name

  	
   

  	
  Jurisdiction

  Searched

  	
   

  	
  File

  Date

  	
   

  	
  File Number

  	
   

  	
  Type

  	
   

  	
  Secured Party

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  California
  SOS

  	
   

  	
  11/01/99

  	
   

  	
  9930960474

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  01/02/01

  	
   

  	
  0100660695

  	
   

  	
  UCC

  	
   

  	
  Heller
  Financial Leasing, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
  03/02/01

  	
   

  	
  0106460432

  	
   

  	
  UCC

  	
   

  	
  Heller
  Financial Leasing, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
  04/13/01

  	
   

  	
  0110761113

  	
   

  	
  UCC

  	
   

  	
  Heller
  Financial Leasing, Inc.

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Washington
  DC

  	
   

  	
  05/17/01

  	
   

  	
  2001045625

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Illinois SOS

  	
   

  	
  11/02/99

  	
   

  	
  4117538

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  06/28/01

  	
   

  	
  “

  	
   

  	
  Prel

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  05/19/00

  	
   

  	
  4215145

  	
   

  	
  UCC

  	
   

  	
  Fleet
  Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  05/12/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  06/27/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  05/19/00

  	
   

  	
  4215146

  	
   

  	
  UCC

  	
   

  	
  Fleet
  Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  05/12/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  06/27/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  05/19/00

  	
   

  	
  4215147

  	
   

  	
  UCC

  	
   

  	
  Fleet
  Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  05/12/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  06/27/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  04/13/01

  	
   

  	
  4369942

  	
   

  	
  UCC

  	
   

  	
  Heller
  Financial Leasing, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
  03/02/01

  	
   

  	
  4348366

  	
   

  	
  UCC

  	
   

  	
  Heller
  Financial Leasing, Inc.

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Idaho SOS

  	
   

  	
  11/01/99

  	
   

  	
  B852070

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  04/13/01

  	
   

  	
  B897541

  	
   

  	
  UCC

  	
   

  	
  Heller
  Financial Leasing, Inc.

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Indiana SOS

  	
   

  	
  11/01/99

  	
   

  	
  2287913

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  11/03/99

  	
   

  	
  2288114

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Kansas SOS

  	
   

  	
  11/01/99

  	
   

  	
  2964096

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  05/22/00

  	
   

  	
  3639374

  	
   

  	
  UCC

  	
   

  	
  Fleet
  Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  07/09/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  05/22/00

  	
   

  	
  3639408

  	
   

  	
  UCC

  	
   

  	
  Fleet
  Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  07/09/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  05/22/00

  	
   

  	
  3639424

  	
   

  	
  UCC

  	
   

  	
  Fleet
  Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  07/09/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  01/31/01

  	
   

  	
  4397006

  	
   

  	
  UCC

  	
   

  	
  Fleet
  Capital Corporation

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Colorado SOS

  	
   

  	
  11/29/84

  	
   

  	
  19872757413

  	
   

  	
  UCC

  	
   

  	
  Colorado
  National Bank of Denver

  
	
   

  	
   

  	
   

  	
   

  	
  04/24/86

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  04/24/86

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  05/15/89

  	
   

  	
  “

  	
   

  	
  Rel

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  10/13/89

  	
   

  	
  “

  	
   

  	
  Cont

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  03/02/90

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  10/21/91

  	
   

  	
  “

  	
   

  	
  Rel

  	
   

  	
  “

  



 


272

















 


	
  Debtor Name

  	
   

  	
  Jurisdiction

  Searched

  	
   

  	
  File

  Date

  	
   

  	
  File Number

  	
   

  	
  Type

  	
   

  	
  Secured Party

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  11/23/94

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  11/23/94

  	
   

  	
  “

  	
   

  	
  Cont

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  11/23/94

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  06/22/95

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  12/18/97

  	
   

  	
  “

  	
   

  	
  Cont

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  07/22/98

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  08/17/98

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  01/02/01

  	
   

  	
  20012000382

  	
   

  	
  UCC

  	
   

  	
  Heller
  Financial Leasing

  
	
   

  	
   

  	
   

  	
   

  	
  03/02/01

  	
   

  	
  20012016614

  	
   

  	
  UCC

  	
   

  	
  Heller
  Financial Leasing

  
	
   

  	
   

  	
   

  	
   

  	
  04/13/01

  	
   

  	
  20012028803

  	
   

  	
  UCC

  	
   

  	
  Heller
  Financial Leasing

  
	
   

  	
   

  	
   

  	
   

  	
  05/25/01

  	
   

  	
  20012041256

  	
   

  	
  UCC

  	
   

  	
  Fleet
  Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  06/27/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  05/25/01

  	
   

  	
  20012041257

  	
   

  	
  UCC

  	
   

  	
  Fleet
  Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  06/27/01

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  05/25/01

  	
   

  	
  20012041258

  	
   

  	
  UCC

  	
   

  	
  Fleet
  Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  06/27/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  04/08/03

  	
   

  	
  20032037176

  	
   

  	
  UCC

  	
   

  	
  UPS Capital
  Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  04/23/03

  	
   

  	
  20032043206

  	
   

  	
  UCC

  	
   

  	
  UPS Capital
  Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  04/30/03

  	
   

  	
  20032046259

  	
   

  	
  UCC

  	
   

  	
  UPS Capital
  Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  05/28/03

  	
   

  	
  20032056407

  	
   

  	
  UCC

  	
   

  	
  UPS Capital
  Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  05/28/03

  	
   

  	
  20032056464

  	
   

  	
  UCC

  	
   

  	
  UPS Capital
  Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  07/08/03

  	
   

  	
  20032073348

  	
   

  	
  UCC

  	
   

  	
  UPS Capital
  Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  07/30/03

  	
   

  	
  20032083212

  	
   

  	
  UCC

  	
   

  	
  UPS Capital
  Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  09/02/03

  	
   

  	
  20032095677

  	
   

  	
  UCC

  	
   

  	
  UPS Capital
  Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  09/02/03

  	
   

  	
  20032096111

  	
   

  	
  UCC

  	
   

  	
  UPS Capital
  Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  10/13/03

  	
   

  	
  20032111494

  	
   

  	
  UCC

  	
   

  	
  UPS Capital
  Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  11/26/03

  	
   

  	
  20032128522

  	
   

  	
  UCC

  	
   

  	
  UPS Capital
  Corporation

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Kentucky SOS

  	
   

  	
  11/01/99

  	
   

  	
  1999-1602202

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Hopkins, KY

  	
   

  	
  05/17/01

  	
   

  	
  320214

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Jefferson,
  KY

  	
   

  	
  11/01/99

  	
   

  	
  99-08372

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Warren, KY

  	
   

  	
  05/18/01

  	
   

  	
  129902

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  E Baton
  Rouge, LA

  	
   

  	
  11/03/99

  	
   

  	
  1181256

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  01/02/01

  	
   

  	
  1207069

  	
   

  	
  UCC

  	
   

  	
  Heller
  Financial Leasing

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Massachusetts
  SOS

  	
   

  	
  11/01/99

  	
   

  	
  99671686

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  11/02/99

  	
   

  	
  99672011

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Lawrence, MA

  	
   

  	
  11/01/99

  	
   

  	
  36526

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Norfolk, MA

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  CLEAR

  



 


273

















 


	
  Debtor Name

  	
   

  	
  Jurisdiction

  Searched

  	
   

  	
  File

  Date

  	
   

  	
  File Number

  	
   

  	
  Type

  	
   

  	
  Secured Party

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Needham, MA

  	
   

  	
  05/11/00

  	
   

  	
  190

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Maryland SOS

  	
   

  	
  03/27/00

  	
   

  	
  0000000181040295

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  06/07/00

  	
   

  	
  0000000181048572

  	
   

  	
  UCC

  	
   

  	
  Fleet
  Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  07/24/02

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  06/14/00

  	
   

  	
  0000000181049467

  	
   

  	
  UCC

  	
   

  	
  Fleet
  Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  06/23/00

  	
   

  	
  0000000181050648

  	
   

  	
  UCC

  	
   

  	
  Fleet
  Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  11/20/00

  	
   

  	
  0000000181065842

  	
   

  	
  UCC

  	
   

  	
  Bay National
  Bank

  
	
   

  	
   

  	
   

  	
   

  	
  01/02/01

  	
   

  	
  0000000181069687

  	
   

  	
  UCC

  	
   

  	
  Heller
  Financial Leasing

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Michigan SOS

  	
   

  	
  11/01/99

  	
   

  	
  08310C

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  11/02/99

  	
   

  	
  08329C

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  03/02/01

  	
   

  	
  22156C

  	
   

  	
  UCC

  	
   

  	
  Heller
  Financial Leasing

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Sebastian,
  AR

  	
   

  	
  05/17/01

  	
   

  	
  01-537A&B

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Essex, MA

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  CLEAR

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Dekalb, GA

  	
   

  	
  05/12/00

  	
   

  	
  044-2000-004187

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Fulton, GA

  	
   

  	
  11/02/99

  	
   

  	
  60-99-21178

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  03/02/01

  	
   

  	
  60-01-4196

  	
   

  	
  UCC

  	
   

  	
  Heller
  Financial

  
	
   

  	
   

  	
   

  	
   

  	
  04/20/01

  	
   

  	
  60-01-7408

  	
   

  	
  UCC

  	
   

  	
  Heller
  Financial

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Gwinnett, GA

  	
   

  	
  05/11/00

  	
   

  	
  67-00-5203

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Mississippi
  SOS

  	
   

  	
  11/01/99

  	
   

  	
  1376581

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Forrest, MS

  	
   

  	
  05/17/01

  	
   

  	
  94940

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Lee, MS

  	
   

  	
  11/01/99

  	
   

  	
  99-5347

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Leflore, MS

  	
   

  	
  05/17/01

  	
   

  	
  01-0783

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  



 


274

















 


	
  Debtor Name

  	
   

  	
  Jurisdiction

  Searched

  	
   

  	
  File

  Date

  	
   

  	
  File Number

  	
   

  	
  Type

  	
   

  	
  Secured Party

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Lowndes, MS

  	
   

  	
  05/17/01

  	
   

  	
  130322

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Rankin, MS

  	
   

  	
  05/17/01

  	
   

  	
  01-000-1620

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Harrison, MS
  1st District

  	
   

  	
  05/17/01

  	
   

  	
  002918

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Jones, MS
  2nd District

  	
   

  	
  05/17/01

  	
   

  	
  112,145

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Boone, MO

  	
   

  	
  05/11/00

  	
   

  	
  163645

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Clay, MO

  	
   

  	
  11/01/99

  	
   

  	
  H170772

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Cape
  Girardeau, MO

  	
   

  	
  05/17/01

  	
   

  	
  95192

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Cole, MO

  	
   

  	
  11/03/99

  	
   

  	
  19990956

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Greene, MO

  	
   

  	
  05/11/00

  	
   

  	
  002389

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Jackson, MO

  	
   

  	
  11/03/99

  	
   

  	
  1999J0416538

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  04/16/01

  	
   

  	
  2001J0433598

  	
   

  	
  UCC

  	
   

  	
  Heller
  Financial Leasing

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Marion, MO

  	
   

  	
  05/17/01

  	
   

  	
  047689

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  St. Louis
  City, MO

  	
   

  	
  11/01/99

  	
   

  	
  06997

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  St. Louis,
  MO

  	
   

  	
  05/11/00

  	
   

  	
  6137

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Arizona SOS

  	
   

  	
  11/01/99

  	
   

  	
  1090975

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Connecticut
  SOS

  	
   

  	
  11/01/99

  	
   

  	
  0001958988

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Florida SOS

  	
   

  	
  11/01/99

  	
   

  	
  990000248429

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  03/02/01

  	
   

  	
  200100046882

  	
   

  	
  UCC

  	
   

  	
  Heller
  Financial Leasing

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Iowa SOS

  	
   

  	
  05/11/00

  	
   

  	
  P103992

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Maine SOS

  	
   

  	
  11/01/99

  	
   

  	
  1990001339698

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  



 


275

















 


	
  Debtor Name

  	
   

  	
  Jurisdiction

  Searched

  	
   

  	
  File

  Date

  	
   

  	
  File Number

  	
   

  	
  Type

  	
   

  	
  Secured Party

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Minnesota
  SOS

  	
   

  	
  11/01/99

  	
   

  	
  2174457

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  11/02/99

  	
   

  	
  2174741

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  11/05/99

  	
   

  	
  2175802

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  01/02/01

  	
   

  	
  2286477

  	
   

  	
  UCC

  	
   

  	
  Heller
  Financial Leasing

  
	
   

  	
   

  	
   

  	
   

  	
  04/13/01

  	
   

  	
  2315581

  	
   

  	
  UCC

  	
   

  	
  Heller
  Financial Leasing

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Missouri SOS

  	
   

  	
  11/02/99

  	
   

  	
  3089544

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
  05/19/00

  	
   

  	
  4047897

  	
   

  	
  UCC

  	
   

  	
  Fleet
  Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  06/27/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  05/19/00

  	
   

  	
  4047899

  	
   

  	
  UCC

  	
   

  	
  Fleet
  Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  06/27/03

  	
   

  	
  “

  	
   

  	
  Amend

  	
   

  	
  “

  
	
   

  	
   

  	
   

  	
   

  	
  04/13/01

  	
   

  	
  4153955

  	
   

  	
  UCC

  	
   

  	
  Heller
  Financial Leasing

  
	
  Corporate Express Office Products, Inc.

  	
   

  	
  Montana SOS

  	
   

  	
  11/01/99

  	
   

  	
  572981-00

  	
   

  	
  UCC

  	
   

  	
  Bankers
  Trust Company

  



 


PART II - EXISTING INDEBTEDNESS


 


SECTION A


 


Third Party Existing Indebtedness


 


Existing Indebtedness Buhrmann


 


	
  Borrower

  	
   

  	
  Lender

  	
   

  	
  Description

  	
   

  	
  Cur

  	
   

  	
  Balance*

  30-Nov-03

  	
   

  
	
  Buhrmann
  Shared Service Center

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  N.V. (formerly known as Buhrmann Europcenter N.V.)

  	
   

  	
  Wellenfoam

  	
   

  	
  Lease Office

  	
   

  	
  EUR

  	
   

  	
  243,101

  	
   

  
	
  Buhrmann UK
  Ltd

  	
   

  	
  M6 Loan
  Stock Holders

  	
   

  	
  Loan Stock
  Deed

  	
   

  	
  GBP

  	
   

  	
  1,843,000

  	
   

  
	
  Buhrmann US
  Inc.

  	
   

  	
  Deutsche
  Bank NY

  	
   

  	
  Senior
  Subordinated Note

  	
   

  	
  USD

  	
   

  	
  350,000,000

  	
   

  
	
  Buhrmann US
  Inc.

  	
   

  	
  Deutsche
  Bank NY

  	
   

  	
  Term Loan A

  	
   

  	
  USD

  	
   

  	
  102,362,206

  	
   

  
	
  Buhrmann US
  Inc.

  	
   

  	
  Deutsche
  Bank NY

  	
   

  	
  Term Loan A
  Eur

  	
   

  	
  EUR

  	
   

  	
  207,614,505

  	
   

  
	
  Buhrmann US
  Inc.

  	
   

  	
  Deutsche
  Bank NY

  	
   

  	
  Term Loan B

  	
   

  	
  USD

  	
   

  	
  262,168,796

  	
   

  
	
  Buhrmann US
  Inc.

  	
   

  	
  Deutsche
  Bank NY

  	
   

  	
  Term Loan B
  Eur

  	
   

  	
  EUR

  	
   

  	
  43,912,877

  	
   

  
	
  Buhrmann
  Silver US LLC

  	
   

  	
  Silver
  Funding

  	
   

  	
  MTN Note

  	
   

  	
  USD

  	
   

  	
  85,000,000

  	
   

  
	
  Burhmann
  Silver US LLC

  	
   

  	
  Silver
  Funding

  	
   

  	
  MTN Note

  	
   

  	
  USD

  	
   

  	
  15,337,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CORPORATE
  EXPRESS

  	
   

  	
  Anne Arundel
  Developm. Corporation

  	
   

  	
  Promissory
  note

  	
   

  	
  USD

  	
   

  	
  86,467

  	
   

  
	
  Faison
  Office Products LLC

  	
   

  	
  Colorado
  State Bank and Trust

  	
   

  	
  Notes

  	
   

  	
  USD

  	
   

  	
  2,700,000

  	
   

  



 


276

















 


SECTION B


 


Intercompany
Existing Indebtedness


 


InHouseBank Loans Buhrmann Group


 


	
  Borrower

  	
   

  	
  Lender

  	
   

  	
  Currency

  	
   

  	
  Balance*

  30-Nov-03

  	
   

  
	
  Buhrmann Office Products Nederland B.V.

  	
   

  	
  Buhrmann
  Shared Service Center N.V. (formerly known as Buhrmann Europcenter N.V.)

  	
   

  	
  EUR

  	
   

  	
  1,548,021

  	
   

  
	
  Buhrmann Office Products Nederland B.V.

  	
   

  	
  Buhrmann
  Shared Service Center N.V. (formerly known as Buhrmann Europcenter N.V.)

  	
   

  	
  EUR

  	
   

  	
  -11,418,494

  	
   

  
	
  Buhrmann
  Financiëringen BV

  	
   

  	
  Buhrmann
  Shared Service Center N.V. (formerly known as Buhrmann Europcenter N.V.)

  	
   

  	
  EUR

  	
   

  	
  285,764,471

  	
   

  
	
  Buhrmann Financieringen Capital - account 

  	
   

  	
  Buhrmann
  Shared Service Center N.V. (formerly known as Buhrmann Europcenter N.V.)

  	
   

  	
  EUR

  	
   

  	
  -340,732,143

  	
   

  
	
  Buhrmann
  Fined BV

  	
   

  	
  Buhrmann
  Europcenter N.V.

  	
   

  	
  EUR

  	
   

  	
  6,918,050

  	
   

  
	
  Buhrmann II
  BV

  	
   

  	
  Buhrmann
  Shared Service Center N.V. (formerly known as Buhrmann Europcenter N.V.)

  	
   

  	
  EUR

  	
   

  	
  -494,429

  	
   

  
	
  Buhrmann
  Nederland BV

  	
   

  	
  Buhrmann
  Shared Service Center N.V. (formerly known as Buhrmann Europcenter N.V.)

  	
   

  	
  EUR

  	
   

  	
  2,363,929

  	
   

  
	
  Buhrmann
  Nederland Holding BV

  	
   

  	
  Buhrmann
  Shared Service Center N.V. (formerly known as Buhrmann Europcenter N.V.)

  	
   

  	
  EUR

  	
   

  	
  -121,597,612

  	
   

  
	
  Burhmann US
  inc.

  	
   

  	
  Buhrmann
  Shared Service Center N.V. (formerly known as Buhrmann Europcenter N.V.)

  	
   

  	
  EUR

  	
   

  	
  -81,080,627

  	
   

  
	
  Buhrmann Office Products Nederland B.V.

  	
   

  	
  Buhrmann Shared
  Service Center N.V. (formerly known as Buhrmann Europcenter N.V.)

  	
   

  	
  EUR

  	
   

  	
  3,439,665

  	
   

  
	
  Corporate Express Doc. Automatisering BV

  	
   

  	
  Buhrmann
  Shared Service Center N.V. (formerly known as Buhrmann Europcenter N.V.)

  	
   

  	
  EUR

  	
   

  	
  -3,586,166

  	
   

  



 


277

















 


	
  Buhrmann Office Products Nederland B.V.

  	
   

  	
  Buhrmann
  Shared Service Center N.V. (formerly known as Buhrmann Europcenter N.V.)

  	
   

  	
  EUR

  	
   

  	
  2,775,683

  	
   

  
	
  Buhrmann Office Products Nederland B.V.

  	
   

  	
  Buhrmann
  Shared Service Center N.V. (formerly known as Buhrmann Europcenter N.V.)

  	
   

  	
  EUR

  	
   

  	
  -5,088,674

  	
   

  
	
  Buhrmann Office Products Nederland B.V.

  	
   

  	
  Buhrmann
  Shared Service Center N.V. (formerly known as Buhrmann Europcenter N.V.)

  	
   

  	
  EUR

  	
   

  	
  9,001,061

  	
   

  
	
  Tetterode
  Nederland

  	
   

  	
  Buhrmann
  Shared Service Center N.V. (formerly known as Buhrmann Europcenter N.V.)

  	
   

  	
  EUR

  	
   

  	
  19,689,355

  	
   

  
	
  Buhrmann US
  Inc.

  	
   

  	
  Buhrmann
  Shared Service Center N.V. (formerly known as Buhrmann Europcenter N.V.)

  	
   

  	
  USD

  	
   

  	
  -13,437,799

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  0

  	
   

  
	
  Buhrmann
  International BV

  	
   

  	
  Buhrmann
  Financieringen B.V.

  	
   

  	
  EUR

  	
   

  	
  457,150,046

  	
   

  
	
  Buhrmann NV

  	
   

  	
  Buhrmann
  Financieringen B.V.

  	
   

  	
  EUR

  	
   

  	
  -1,243,483,099

  	
   

  
	
  Buhrmann NV

  	
   

  	
  Buhrmann
  Financieringen B.V.

  	
   

  	
  EUR

  	
   

  	
  487,870,094

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  0

  	
   

  
	
  BT OP USA
  Corp.

  	
   

  	
  Buhrmann US
  Inc

  	
   

  	
  USD

  	
   

  	
  0

  	
   

  
	
  BT OPI
  Holding US

  	
   

  	
  Buhrmann US
  Inc

  	
   

  	
  USD

  	
   

  	
  34,854,124

  	
   

  
	
  Buhrmann
  Swaps Inc.

  	
   

  	
  Buhrmann US
  Inc

  	
   

  	
  USD

  	
   

  	
  91,092,465

  	
   

  
	
  Buhrmann US
  Holdings Inc.

  	
   

  	
  Buhrmann US
  Inc

  	
   

  	
  USD

  	
   

  	
  0

  	
   

  
	
  Buhrmann
  Silver US LLC

  	
   

  	
  Buhrmann US
  Inc

  	
   

  	
  USD

  	
   

  	
  -99,185,551

  	
   

  
	
  Corporate
  Express Inc.

  	
   

  	
  Buhrmann US
  Inc

  	
   

  	
  USD

  	
   

  	
  -20,599,820

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  0

  	
   

  
	
  Corporate
  Express Inc.

  	
   

  	
  Buhrmann
  Silver US LLC

  	
   

  	
  USD

  	
   

  	
  5,868,878

  	
   

  



 






* (   )
reflects amounts lended by borrower


 


Intercompany Loans Buhrmann Group


 


	
  Borrower

  	
   

  	
  Lender

  	
   

  	
  Currency

  	
   

  	
  30-Nov-03

  	
   

  
	
  BT OPI Holding

  	
   

  	
  Buhrmann International B.V

  	
   

  	
  USD

  	
   

  	
  15,000,000

  	
   

  
	
  BT OPI Holding

  	
   

  	
  Buhrmann International B.V

  	
   

  	
  USD

  	
   

  	
  1,562,686,525

  	
   

  
	
  Buhrmann Shared Service Center N.V. (formerly known
  as Buhrmann Europcenter N.V.)

  	
   

  	
  BTOPI
  Holding (US)

  	
   

  	
  USD

  	
   

  	
  243,788,881

  	
   

  



 


278

















 


	
  Buhrmann Shared Service Center N.V. (formerly known
  as Buhrmann Europcenter N.V.)

  	
   

  	
  Buhrmann US Inc

  	
   

  	
  USD

  	
   

  	
  36,547,886

  	
   

  
	
  Buhrmann Shared Service Center N.V. (formerly known
  as Buhrmann Europcenter N.V.)

  	
   

  	
  Buhrmann US Inc

  	
   

  	
  USD

  	
   

  	
  225,168,595

  	
   

  
	
  Buhrmann Financieringen B.V.

  	
   

  	
  Buhrmann N.V.

  	
   

  	
  EUR

  	
   

  	
  326,721,756

  	
   

  
	
  Buhrmann Fined B.V.

  	
   

  	
  Buhrmann
  Shared Service Center N.V. (formerly known as Buhrmann Europcenter N.V.)

  	
   

  	
  EUR

  	
   

  	
  173,000,000

  	
   

  
	
  Buhrmann Fined B.V.

  	
   

  	
  Buhrmann
  Shared Service Center N.V. (formerly known as Buhrmann Europcenter N.V.)

  	
   

  	
  EUR

  	
   

  	
  202,000,000

  	
   

  
	
  Buhrmann Fined B.V.

  	
   

  	
  Buhrmann
  Shared Service Center N.V. (formerly known as Buhrmann Europcenter N.V.)

  	
   

  	
  EUR

  	
   

  	
  18,000,000

  	
   

  
	
  Buhrmann Fined B.V.

  	
   

  	
  Buhrmann
  Shared Service Center N.V. (formerly known as Buhrmann Europcenter N.V.)

  	
   

  	
  EUR

  	
   

  	
  70,740,000

  	
   

  
	
  Buhrmann Fined B.V.

  	
   

  	
  Buhrmann
  Shared Service Center N.V. (formerly known as Buhrmann Europcenter N.V.)

  	
   

  	
  EUR

  	
   

  	
  225,168,595

  	
   

  
	
  Buhrmann Fined B.V.

  	
   

  	
  Buhrmann
  Shared Service Center N.V. (formerly known as Buhrmann Europcenter N.V.)

  	
   

  	
  EUR

  	
   

  	
  7,700,000

  	
   

  
	
  Buhrmann Fined B.V.

  	
   

  	
  Buhrmann
  Shared Service Center N.V. (formerly known as Buhrmann Europcenter N.V.)

  	
   

  	
  EUR

  	
   

  	
  35,000,000

  	
   

  
	
  Buhrmann Fined B.V.

  	
   

  	
  Buhrmann Nederland Holding B.V.

  	
   

  	
  EUR

  	
   

  	
  158,823,076

  	
   

  
	
  Buhrmann Fined B.V.

  	
   

  	
  Buhrmann II B.V.

  	
   

  	
  EUR

  	
   

  	
  288,078,222

  	
   

  
	
  Buhrmann Fined B.V.

  	
   

  	
  Buhrmann II B.V.

  	
   

  	
  EUR

  	
   

  	
  460,000,000

  	
   

  
	
  Buhrmann International B.V

  	
   

  	
  Buhrmann Financieringen B.V.

  	
   

  	
  EUR

  	
   

  	
  499,158,238

  	
   

  
	
  Buhrmann International B.V

  	
   

  	
  Buhrmann Financieringen B.V.

  	
   

  	
  EUR

  	
   

  	
  18,151,209

  	
   

  
	
  Buhrmann International B.V

  	
   

  	
  Buhrmann Financieringen B.V.

  	
   

  	
  EUR

  	
   

  	
  14,865,840

  	
   

  
	
  Buhrmann International B.V

  	
   

  	
  Buhrmann Financieringen B.V.

  	
   

  	
  EUR

  	
   

  	
  5,847,364

  	
   

  
	
  Buhrmann International B.V

  	
   

  	
  Buhrmann Financieringen B.V.

  	
   

  	
  EUR

  	
   

  	
  27,226,813

  	
   

  
	
  Buhrmann International B.V

  	
   

  	
  Buhrmann Financieringen B.V.

  	
   

  	
  EUR

  	
   

  	
  2,521,073

  	
   

  
	
  Buhrmann International B.V

  	
   

  	
  Buhrmann Financieringen B.V.

  	
   

  	
  EUR

  	
   

  	
  257,579

  	
   

  
	
  Buhrmann International B.V

  	
   

  	
  Buhrmann Financieringen B.V.

  	
   

  	
  EUR

  	
   

  	
  800,667

  	
   

  
	
  Buhrmann International B.V

  	
   

  	
  Buhrmann Financieringen B.V.

  	
   

  	
  EUR

  	
   

  	
  7,047,266

  	
   

  
	
  Buhrmann International B.V

  	
   

  	
  Buhrmann Financieringen B.V.

  	
   

  	
  EUR

  	
   

  	
  32,265,956

  	
   

  
	
  Buhrmann International B.V

  	
   

  	
  Buhrmann Financieringen B.V.

  	
   

  	
  EUR

  	
   

  	
  4,199,886

  	
   

  
	
  Buhrmann International B.V

  	
   

  	
  Buhrmann Financieringen B.V.

  	
   

  	
  EUR

  	
   

  	
  257,579

  	
   

  
	
  Buhrmann International B.V

  	
   

  	
  Buhrmann Financieringen B.V.

  	
   

  	
  EUR

  	
   

  	
  800,667

  	
   

  
	
  Buhrmann International B.V

  	
   

  	
  Buhrmann Financieringen B.V.

  	
   

  	
  EUR

  	
   

  	
  48,710,087

  	
   

  
	
  Buhrmann International B.V

  	
   

  	
  Buhrmann Financieringen B.V.

  	
   

  	
  GBP

  	
   

  	
  150,000,000

  	
   

  
	
  Buhrmann International B.V.

  	
   

  	
  Buhrmann N.V.

  	
   

  	
  USD

  	
   

  	
  128,000,000

  	
   

  



 


279

















 


	
  Buhrmann Nederland Holding B.V.

  	
   

  	
  Buhrmann
  Shared Service Center N.V. (formerly known as Buhrmann Europcenter N.V.)

  	
   

  	
  EUR

  	
   

  	
  16,000,000

  	
   

  
	
  Buhrmann Nederland Holding B.V.

  	
   

  	
  Buhrmann
  Shared Service Center N.V. (formerly known as Buhrmann Europcenter N.V.)

  	
   

  	
  EUR

  	
   

  	
  19,860,000

  	
   

  
	
  Buhrmann Nederland Holding B.V.

  	
   

  	
  Buhrmann Fined B.V.

  	
   

  	
  EUR

  	
   

  	
  45,378,022

  	
   

  
	
  Buhrmann Nederland Holding B.V.

  	
   

  	
  Buhrmann Fined B.V.

  	
   

  	
  EUR

  	
   

  	
  6,176,856

  	
   

  
	
  Corporate Express Inc

  	
   

  	
  Buhrmann US Inc

  	
   

  	
  USD

  	
   

  	
  3,008,811,591

  	
   

  
	
  Buhrmann International B.V.

  	
   

  	
  Buhrmann N.V.

  	
   

  	
  EUR

  	
   

  	
  117,649,684

  	
   

  



 


SECTION C


 


Existing
Documentary Credits


 


as of November 30, 2003


 


	
  L/C No.

  	
   

  	
  Current

  US$ Total

  	
   

  	
  Effective

  Date

  	
   

  	
  Expiration

  Date

  	
   

  	
  Beneficiary Name & Address

  	
   

  	
  Phone

  	
   

  	
  Business Unit

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  S12650

  	
   

  	
  107,259.00

  	
   

  	
  8/6/98

  	
   

  	
  2/28/04

  	
   

  	
  City of
  Broomfield ATTN: City Attorney One Descombes Place Broomfield, CO 80038

  	
   

  	
  303-438-6300

  	
   

  	
  Corporate
  Express, Inc.

  
	
  S12656

  	
   

  	
  1,950,167.00

  	
   

  	
  8/11/98

  	
   

  	
  2/28/04

  	
   

  	
  Lumbermens Mutual
  Casualty et al Kemper Risk Management Services ATTN: Dick Otto One Kemper
  Drive Long Grove, IL 60049-0001

  	
   

  	
  626-369-7762

  	
   

  	
  CEX
  Holdings, Inc.

  
	
  S12657

  	
   

  	
  3,950,000.00

  	
   

  	
  8/11/98

  	
   

  	
  2/28/04

  	
   

  	
  Lumbermens Mutual Casualty et al Kemper Risk Management Services ATTN:
  Dick Otto One Kemper Drive Long Grove, IL 60049-0001

  	
   

  	
  626-369-7762

  	
   

  	
  CEX Holdings, Inc.

  
	
  S12700

  	
   

  	
  5,375,000.00

  	
   

  	
  9/10/98

  	
   

  	
  12/15/04

  	
   

  	
  U.S. Bank N.A.,
  Trustee ATTN: William McMillan P.O. Box 5168 Denver, CO 80217

  	
   

  	
  303-585-4595

  	
   

  	
  Corporate Express
  Office Products

  
	
  S13187

  	
   

  	
  2,660,000.00

  	
   

  	
  12/1/99

  	
   

  	
  12/31/04

  	
   

  	
  Catellus
  Development Corporation ATTN: Asset Management 201 Mission Street San
  Francisco, CA 94105

  	
   

  	
  630-872-5584

  	
   

  	
  BT Office
  Products International

  
	
  S13315

  	
   

  	
  1,265,813.00

  	
   

  	
  3/8/00

  	
   

  	
  3/22/04

  	
   

  	
  Travelers
  Indemnity Company One Tower Square — 10CR Hartford, CT 06183

  	
   

  	
  860-277-8112

  	
   

  	
  BT Office
  Products International

  
	
  S13360

  	
   

  	
  13,200,000.00

  	
   

  	
  4/13/00

  	
   

  	
  1/1/05

  	
   

  	
  Zurich American
  Insurance Co. ATTN: E. Hooks Tower 2 – 9th Floor 1400 American Lane
  Schaumburg, IL 60196-1056

  	
   

  	
  847-605-6882

  	
   

  	
  Corporate Express
  Office Products

  



 


280

















 


	
  L/C No.

  	
   

  	
  Current

  US$ Total

  	
   

  	
  Effective

  Date

  	
   

  	
  Expiration

  Date

  	
   

  	
  Beneficiary Name & Address

  	
   

  	
  Phone

  	
   

  	
  Business Unit

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  S13363

  	
   

  	
  52,000.00

  	
   

  	
  4/14/00

  	
   

  	
  5/1/04

  	
   

  	
  Oire Ltd.
  Partnership ATTN: Asset Management Dept. 10350 Bren Road East Minnetonka, MN
  55343

  	
   

  	
  952-656-4549

  	
   

  	
  Corporate Express
  Office Products

  
	
  S13640

  	
   

  	
  395,104.50

  	
   

  	
  9/20/00

  	
   

  	
  12/31/04

  	
   

  	
  777 Sinatra Drive Corp. C/o Hartz Mountain Industries 400 Plaza Drive
  Secaucus, NJ 07094

  	
   

  	
  201-348-1200

  	
   

  	
  Corporate Express Office Products

  
	
  S13929

  	
   

  	
  387,240.00

  	
   

  	
  3/23/01

  	
   

  	
  12/31/04

  	
   

  	
  Windemere 287
  Associates Helane A. Kipness, Esq. Lasser, Hochman, LLC 75 Eisenhower
  Parkway Roseland, NJ 07068

  	
   

  	
  973-226-2700

  	
   

  	
  Corporate Express
  Office Products

  
	
  S14003

  	
   

  	
  202,800.00

  	
   

  	
  5/22/01

  	
   

  	
  5/22/04

  	
   

  	
  Genesco, Inc. ATTN: Roger Sisson, Esq. Suite 400 1415
  Murfreesboro Road Nashville, TN 37217

  	
   

  	
  615-367-7000

  	
   

  	
  Corporate Express Office Products

  
	
  S14328

  	
   

  	
  30,000,000.00

  	
   

  	
  10/8/01

  	
   

  	
  10/8/04

  	
   

  	
  Deutsche Bank Trust Company Americas ATTN: Charles Ferris 60 Wall
  Street New York, NY 10005

  	
   

  	
  212-250-1214

  	
   

  	
  Corporate Express, Inc.

  
	
  S14448

  	
   

  	
  5,500,000.00

  	
   

  	
  1/22/02

  	
   

  	
  12/31/04

  	
   

  	
  St. Paul
  Fire & Marine Insurance ATTN: Collateral Management Mail Code 104J
  384 Washington Street St. Paul MN, 55102

  	
   

  	
  201-348-5302

  	
   

  	
  Corporate Express
  Office Products

  
	
  S14642

  	
   

  	
  400,000.00

  	
   

  	
  5/7/02

  	
   

  	
  5/7/04

  	
   

  	
  777 Sinatra Drive Corp. c/o Hartz Mountain Industries, Inc. 400
  Plaza Drive Secaucus, NJ 07094

  	
   

  	
  201-348-5302

  	
   

  	
  Corporate Express Office Products

  
	
  S15152

  	
   

  	
  1,000,000.00

  	
   

  	
  4/3/03

  	
   

  	
  4/3/04

  	
   

  	
  Bank One, Wheaton, IL Suite 2048 218 E. Wesley Avenue Wheaton, IL
  60187

  	
   

  	
  630-221-4407

  	
   

  	
  Corporate Express Office Products

  
	
  s15513

  	
   

  	
  30,000,000.00

  	
   

  	
  10/31/03

  	
   

  	
  10/31/04

  	
   

  	
  Deutsche Bank AG
  Amsterdam Branch Herengracht 450-454 1017 CA Amsterdam The Netherlands

  	
   

  	
  31-20-555-4821

  	
   

  	
  Buhrmann NV

  



 


	
  L/C No.

  	
   

  	
  Current

  EUR Total

  	
   

  	
  Effective

  Date

  	
   

  	
  Expiration

  Date

  	
   

  	
  Beneficiary Name & Address

  	
   

  	
  Phone

  	
   

  	
  Business Unit

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DBS 15150

  	
   

  	
  10,000,000.00

  	
   

  	
  10/31/03

  	
   

  	
  12/31/04

  	
   

  	
  Deutsche Bank AG
  Amsterdam Branch Herengracht 450-454 1017 CA Amsterdam The Netherlands

  	
   

  	
  31-20-555-4821

  	
   

  	
  Buhrmann NV

  



 


281

















 


	
  L/C No.

  	
   

  	
  Current

  EUR Total

  	
   

  	
  Effective

  Date

  	
   

  	
  Expiration

  Date

  	
   

  	
  Beneficiary Name & Address

  	
   

  	
  Phone

  	
   

  	
  Business Unit

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DBS 15096

  	
   

  	
  2,500,000.00

  	
   

  	
  10/31/03

  	
   

  	
  02/27/03

  	
   

  	
  Deutsche Bank AG Amsterdam Branch Herengracht 450-454 1017 CA
  Amsterdam The Netherlands

  	
   

  	
  31-20-555-4821

  	
   

  	
  Buhrmann NV

  
	
  DBS 14970

  	
   

  	
  663,520.00

  	
   

  	
  10/31/03

  	
   

  	
  08/31/04

  	
   

  	
  Deutsche Bank AG
  Amsterdam Branch Herengracht 450-454 1017 CA Amsterdam The Netherlands

  	
   

  	
  31-20-555-4821

  	
   

  	
  Buhrmann NV

  
	
  DBS 15173

  	
   

  	
  8,250,000

  	
   

  	
  10/31/03

  	
   

  	
  11/30/04

  	
   

  	
  Rabobank
  Croeselaan 18 3521 CB Utrecht The Netherlands

  	
   

  	
  31-20-2162994

  	
   

  	
  Buhrmann NV

  
	
  DBS 15172

  	
   

  	
  22,000,000.00

  	
   

  	
  10/31/03

  	
   

  	
  03/31/04

  	
   

  	
  ABN AMRO Bank Gustav Mahlerlaan 10 P.O. Box 283 1000 EA Amsterdam
  The Netherlands

  	
   

  	
  31-20-6294075

  	
   

  	
  Buhrmann NV

  
	
  1565-38357

  	
   

  	
  2,200.00

  	
   

  	
  02/02/00

  	
   

  	
  No expiration date (until all indebtedness has been repaid in full)

  	
   

  	
  Colorado State Bank and Trust 1600 Broadway Denver, CO 80202-4999

  	
   

  	
   

  	
   

  	
  Corporate Express Office Products

  
	
  1565-38357

  	
   

  	
  500,000

  	
   

  	
  02/02/00

  	
   

  	
  No expiration date (until all indebtedness has been repaid in full)

  	
   

  	
  Colorado State Bank and Trust 1600 Broadway Denver, CO 80202-4999

  	
   

  	
   

  	
   

  	
  Corporate Express Office Products

  



 


282

















 


PART III
- NON-GUARANTOR SUBSIDIARIES


 


The Netherlands


 


	
  Bitupa B.V.

  
	
   

  
	
  Gelria Kartonnagefabriek B.V.

  
	
   

  
	
  Gerhard Loeber B.V.

  
	
   

  
	
  RCN Holding B.V.

  
	
   

  
	
  VRG Papier B.V.

  
	
   

  
	
  Corporate Express Holding B.V.

  
	
   

  
	
  Distribel B.V.

  
	
   

  
	
  Distriho B.V.

  
	
   

  
	
  Buhrmann-Tetterode Nederland B.V.

  
	
   

  
	
  OBA-Almelo BV

  
	
   

  
	
  KNP Nederland (Holding) B.V.

  
	
   

  
	
  Ansic Nederland B.V.

  
	
   

  
	
  Papiermaatschappij Amsterdam-West B.V.

  
	
   

  
	
  Buhrmann Onroerend Goed B.V.

  
	
   

  
	
  Case Consultancy B.V.

  
	
   

  
	
  Verenigde Bedrijven Rijam B.V.

  
	
   

  
	
  KNP Nederland B.V.

  
	
   

  
	
  Holbel B.V.

  
	
   

  
	
  KNP Verboom B.V.

  
	
   

  
	
  Buhrmann ISD B.V.

  
	
   

  
	
  Buhrmann Insurances B.V.

  
	
   

  
	
  Buhrmann Stafdiensten B.V.

  
	
   

  
	
  Desk B.V.

  
	
   

  
	
  KNP Bel 9 B.V.

  
	
   

  
	
  KNP Bel 10 B.V.

  



 


283

















 


	
  KNP BT Bel 12 B.V.

  
	
   

  
	
  KNP Bel 13 B.V.

  
	
   

  
	
  KNP Bel 14 B.V.

  
	
   

  
	
  Groothandel en Distr. Centrum Van Lente B.V.

  
	
   

  
	
  Buhrmann Finco B.V.

  
	
   

  
	
  Fianol 3 B.V.

  
	
   

  
	
  Fianol 5 B.V.

  
	
   

  
	
  Fianol 6 B.V.

  
	
   

  
	
  KNP Leykam N.V.

  
	
   

  
	
  KNP Leykam International N.V.

  
	
   

  
	
  KNP BT Bel 5 B.V.

  
	
   

  
	
  KNP BT Bel 7 B.V.

  
	
   

  
	
  Exploitatiemaatschappij BHK B.V.

  
	
   

  
	
  Exploitatiemaatschappij Union B.V.

  
	
   

  
	
  BTI Hellas B.V.

  
	
   

  
	
  Buhrmann Spain Holding B.V.

  
	
   

  
	
  UKbel BV

  
	
   

  
	
  Corporate Express Europe Import B.V.

  
	
   

  
	
  Corporate Express Europe B.V.

  
	
   

  
	
  Buhrmann Office Products Austria B.V.

  



 


Belgium,
France, Luxembourg


 


	
  Buhrmann Silver S.A.

  
	
   

  
	
  Rent-a-PC S.P.R.L.

  
	
   

  
	
  Corporate Express Belgium N.V.

  
	
   

  
	
  Plantin S.A.

  
	
   

  
	
  Fingraf N.V.

  



 


284














 


	
  26eme Avenue SAS

  
	
   

  
	
  SCI Siman

  
	
   

  
	
  SCI Newtech

  
	
   

  
	
  Buhrmann Luxembourg Finance S.A.R.L.

  
	
   

  
	
  Buhrmann France S.A.

  
	
   

  
	
  FIMAF S.A.S.

  
	
   

  
	
  Buhrmann ISD Groupe S.A.

  
	
   

  
	
  Buhrmann ISD Services S.A.

  
	
   

  
	
  Buhrmann ISD S.A.

  
	
   

  
	
  Buhrmann ISD Star S.A.

  
	
   

  
	
  ANFA SAS

  
	
   

  
	
  Loca Genas SCI

  
	
   

  
	
  Eugene Hoffman S.A.R.L.

  
	
   

  
	
  Carpa Holding France S.N.C.

  
	
   

  
	
  ASAP Software SAS

  



 


Germany


 


	
  Corporate Express GmbH & Co.

  
	
   

  
	
  PSM Deutschland GmbH

  
	
   

  
	
  Buhrmann Holding Verwaltungs GmbH

  
	
   

  
	
  Grundbesitzgesellschaft burgerlichen Rechts
  Bobfingen

  
	
   

  
	
  ECS Computer Vertrieb GmbH

  
	
   

  
	
  Buhrmann Holding GmbH & Co. KG

  
	
   

  
	
  Buhrmann Beteilgungen Deutschland GmbH

  
	
   

  
	
  BVZ Buroversorgungszentrum GmbH

  
	
   

  
	
  FSMA Verwaltungs und Beteiligungs GmbH

  
	
   

  
	
  Corporate Express Verwaltungs GmbH

  



 


285

















 


	
  Corporate Express Deutschland GmbH &
  Co. Vertriebs KG

  
	
   

  
	
  Corporate Express Deutschland GmbH
  (Stuttgart)

  
	
   

  
	
  BVZ Buroversorgungszentrum GmbH &
  Co. Handels und Dienstleistungs

  



 


Austria and Switzerland


 


	
  Buhrmann Buro Beteiligungs GmbH

  
	
   

  
	
  Corporate Express GmbH & Co.

  
	
   

  
	
  PSM Internationale Handels GmbH &
  Co. KG

  
	
   

  
	
  PSM Internationale Handels GmbH

  
	
   

  
	
  Corporate Express Buroartikelhandel GmbH

  
	
   

  
	
  Corporate Express GmbH

  
	
   

  
	
  AT2 Vermogensverwaltungs GmbH

  
	
   

  
	
  Oranda A.G.

  



 


UK & Ireland (excluding
dormant Corporate Express companies)


 


	
  Buhrmann UK Ltd.

  
	
   

  
	
  Copygraphic Ltd

  
	
   

  
	
  Corporate Express Holdings Ltd

  
	
   

  
	
  Corporate Express (UK)

  
	
   

  
	
  UOS Holding

  
	
   

  
	
  Universal Office Supplies

  
	
   

  
	
  Corporate Express Ltd.

  
	
   

  
	
  Corporate Express (N.I.) Ltd

  
	
   

  
	
  Buhrmann UK Leasing Ltd.

  
	
   

  
	
  Buhrmann Financial Services Ltd.

  
	
   

  
	
  KNP BT 1989 Ltd.

  
	
   

  
	
  Corporate Express Holding (Ireland) Ltd.

  



 


286

















 


	
  Glen C Office Supplies Ltd.

  
	
   

  
	
  T&D Norton (Office Equipment) Ltd

  
	
   

  
	
  Glenvara Design Print Ltd.

  
	
   

  
	
  Polar Print Ltd.

  
	
   

  
	
  Buhrmann Ireland Ltd.

  
	
   

  
	
  Corporate Express (Irl.) Ltd.

  
	
   

  
	
  Universal Wave Office Supplies Ltd.

  



 


Southern Europe


 


	
  Buhrmann Spain Holding S.L.

  
	
   

  
	
  Buhrmann Spain Holding S.L. y Compania,
  S.C.

  
	
   

  
	
  Hartmann S.A., Macquinaria Artes Graficas

  
	
   

  
	
  Deltagraf S.A.

  
	
   

  
	
  Buhrmann -Tetterode International Hellas
  A.E.E.

  
	
   

  
	
  Buhrmann Italia S.p.A.

  
	
   

  
	
  Auxilia Graphica S.r.L.

  
	
   

  
	
  Macchingraf S.p.A.

  
	
   

  
	
  La Commerciale Grafice SrL

  
	
   

  
	
  Corporate Express S.p.A.

  
	
   

  
	
  NPO S.p.A.

  
	
   

  
	
  NPO Consummabill S.p.A.

  
	
   

  
	
  Agena Inforgal S.A.

  
	
   

  
	
  Inforgal Agena SGPS.

  
	
   

  
	
  Inforgal Informatique e Gestao S.A.

  



 


287

















 


Sweden, Finland and Poland


 


	
  BK PAP A.B.

  
	
   

  
	
  Nya Grafiska Huset I Malmo AB

  
	
   

  
	
  Finpapperspecialisten AB-KH

  
	
   

  
	
  Buhrmann Sweden AB

  
	
   

  
	
  Bjorsells Syntranet AB

  
	
   

  
	
  Corporate Express Svenska A.B.

  
	
   

  
	
  Bjorsells Cexp AB

  
	
   

  
	
  Bjorsells Corporate Express AB

  
	
   

  
	
  Corporate Express Polska Ltd. Polen

  
	
   

  
	
  Corporate Express Oy AB (Finland)

  



 


Rest of the World


 


	
  Corporate Express Hungary Kereshedelmi Kft

  
	
   

  
	
  Buhrmann Sweden AB

  
	
   

  
	
  Bjorsells Syntranet AB

  
	
   

  
	
  Corporate Express Svenska AB

  
	
   

  
	
  Buhrmann Antilliana N.V.

  



 


USA, Canada and Mexico


 


	
  Buhrmann Silver US LLC

  
	
   

  
	
  Corporate Express Canada, Inc

  
	
   

  
	
  Corporate Express Produits de Bureau, Inc./Corporate
  Express Office Products, Inc.

  
	
   

  
	
  Ida Ben Ltd.

  



 


288

















 


Australia/New Zealand


 


	
  Corporate Express South Pacific Pty Ltd.

  
	
   

  
	
  Corporate Express Holdings Australia Pty
  Ltd.

  
	
   

  
	
  Corporate Express Finance Australia Pty
  Ltd.

  
	
   

  
	
  Corporate Express Australia Ltd.

  
	
   

  
	
  CEI Pty Ltd.

  
	
   

  
	
  Corporate Express Employee Share Plan
  Company Pty Ltd.

  
	
   

  
	
  Corporate Express New Zealand Ltd

  
	
   

  
	
  MacOffice Ltd

  
	
   

  
	
  Restructure (Vic) Pty Ltd

  
	
   

  
	
  Paperco Trading Pty Ltd

  



 


PART IV - EXISTING PROCEEDINGS


 


Various members of
the Group are involved in various routine legal proceedings incidental to the
conduct of its business.  Such members of
the Group do not expect these legal proceedings to have a Material Adverse
Effect on its financial condition or results of operations.


 


In June 2002,
the German competition authorities (the Bundeskartellamt
or “BKA”) launched an
investigation against a number of German paper merchants, among which was
Deutsche Papier Vertriebs GmbH, alleging a violation of anti-trust rules in
Germany.  The potential maximum fine for
the alleged violation is EUR500,000 plus three times the surplus profit
resulting from the violation of the anti-trust rules.  The fine has not yet been imposed by the BKA
and the investigation of the BKA is still ongoing.  A third party investigation into the alleged
surplus profit in a number of regions substantiated the position taken by the
Buhrmann Group that there has been no or at the most a minor surplus profit in
the challenged period.  As the BKA has
recently extended its investigation to more regions in Germany, it is at this
stage not possible to give an estimate of the potential exposure.  The Parent has given an indemnity to
PaperlinX Ltd, the buyer of Paper Merchant Division, with respect to this case.


 


289

















 


PART V - PLANS


 


	
  1.

  	
   

  	
  Corporate Express, a Buhrmann Company
  Short-Term Disability (New York Employees)

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Corporate Express, a Buhrmann Company
  Short-Term Disability (New Jersey Employees)

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Corporate Express, a Buhrmann Company
  Short-Term Disability (Restated January 1, 2003)

  
	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Corporate Express, a Buhrmann Company
  Business Travel Accident Insurance (Restated January 1, 2003)

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Corporate Express, a Buhrmann Company
  Flexible Benefits Plan (Restated January 1, 2003)

  
	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Corporate Express, Inc. Union
  401(k) Retirement Plan (Revised June 1, 2003)

  
	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  Corporate Express, Inc.
  401(k) Retirement Plan (Revised June 1, 2003)

  
	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Corporate Express, a Buhrmann Company Cigna
  Dental Health (CDH) (Restated January 1, 2003)

  
	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  Corporate Express, a Buhrmann Company Group
  Dental Indemnity Plan (Restated January 1, 2003)

  
	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  Corporate Express, a Buhrmann Company Group
  Dental PPO Plan (Restated January 1, 2003)

  
	
   

  	
   

  	
   

  
	
  11.

  	
   

  	
  Corporate Express, a Buhrmann Company
  Medical and Vision Care Plan Comprehensive Plan (Out-of-Area) (Effective,
  January 1, 1995, Restated January 1, 2003)

  
	
   

  	
   

  	
   

  
	
  12.

  	
   

  	
  Corporate Express, a Buhrmann Company
  Medical and Vision Care Plan Preferred Provider Organisation (PPO) PPO
  Standard and PPO High Plans (PPO Standard Plan Effective January 1, 1995
  PPO High Plan Effective January 1, 2000) (Restated January 1, 2003)

  
	
   

  	
   

  	
   

  
	
  13.

  	
   

  	
  Corporate Express, a Buhrmann Company
  Medical and Vision Care Plan Exclusion Provider Plan (EPP) (Effective
  January 1, 1995 Restated January 1, 2003)

  
	
   

  	
   

  	
   

  
	
  14.

  	
   

  	
  Corporate Express, a Buhrmann Company Group
  Benefit Plan

  
	
   

  	
   

  	
   

  
	
  15.

  	
   

  	
  Data Documents Inc. Pension Plan

  
	
   

  	
   

  	
   

  
	
  16.

  	
   

  	
  Data Documents Inc. Pension Plan, Los
  Angeles, Bargaining Unit

  
	
   

  	
   

  	
   

  
	
  17.

  	
   

  	
  Data Documents Inc. Pension Plan, Denver
  Bargaining Unit

  
	
   

  	
   

  	
   

  
	
  18.

  	
   

  	
  Data Documents Inc. Denver Bargaining Unit
  401(k) Salary Deferral Savings Plan.

  



 


290

















 


	
  19.

  	
   

  	
  Corporate Express Inc., Deferred
  Compensation Plan

  



 


PART VI - MATERIAL SUBSIDIARIES


 


	
  The
  Netherlands

  
	
   

  
	
  Buhrmann II B.V.

  
	
   

  
	
  Buhrmann Nederland B.V.

  
	
   

  
	
  Buhrmann Nederland Holding B.V.

  
	
   

  
	
  Buhrmann International B.V.

  
	
   

  
	
  USA

  
	
   

  
	
  BT OP USA Corp.

  
	
   

  
	
  BTOPI Holding (US)

  
	
   

  
	
  Buhrmann US Inc.

  
	
   

  
	
  Corporate Express, Inc.

  
	
   

  
	
  ASAP Software Express, Inc.

  
	
   

  
	
  Corporate Express Document & Print
  Management, Inc.

  
	
   

  
	
  Corporate Express Office Products, Inc.

  
	
   

  
	
  Buhrmann Silver US LLC

  



 


PART VII - EXISTING INVESTMENTS


 


	
  Investor

  	
   

  	
  Invested in

  	
   

  	
  Description

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Buhrmann
  International B.V.

  	
   

  	
  Inforgal Agena
  SGPS

  	
   

  	
  Investment in 50%
  of shares

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Buhrmann
  International B.V.

  	
   

  	
  Papeleria el
  Guerrero de Nuevo Leon, SA de CV (Mexico)

  	
   

  	
  Investment in 15%
  of shares

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Buhrmann
  International B.V.

  	
   

  	
  Oranda
  A.G.(Switzerland)

  	
   

  	
  Receivable on
  non-consolidated entity

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Buhrmann
  International B.V.

  	
   

  	
  Nigeria
  Notes(Nigeria)

  	
   

  	
  Notes issued by
  Government of Nigeria

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Corporate
  Express, Inc

  	
   

  	
  Faison Office
  Products Company (United States)

  	
   

  	
  Investment in 45%
  of shares

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


291

















 


	
  Investor

  	
   

  	
  Invested in

  	
   

  	
  Description

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Hartmann S.A.
  Macquinaria Artes Graficas

  	
   

  	
  Deltagraf S.A.

  	
   

  	
  Investment in 20%
  of shares

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Inforgal Agena
  SGPS

  	
   

  	
  Inforgal
  Informatique e Gestao S.A.

  	
   

  	
  Investment in 33%
  of shares

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Buhrmann Fined
  B.V.

  	
   

  	
  Jersey Company
  Subordinated Notes

  	
   

  	
  Investment in
  subordinated notes pursuant to a Permitted Receivables Facility

  



 


292

















 


SCHEDULE 11


 


FORM OF L/C BANK ACCESSION CERTIFICATE


 


To:          Deutsche Bank AG, London
Branch


 


cc:           Buhrmann N.V. and Buhrmann US Inc.


 


From:      [L/C Bank]


 


Date:


 


Dear Sirs


 


1.                                     We
refer to the €730,000,000 senior facilities agreement (the “Facilities Agreement”) dated 23 December 2003
and made between Buhrmann N.V. as Parent, Buhrmann US Inc. as Existing
Borrower, the parties named therein as Original Guarantors, Deutsche Bank AG,
London Branch and ABN AMRO Bank N.V. as Arrangers, Deutsche Bank AG, London
Branch as Agent, Deutsche Bank AG, London Branch as Security Trustee and the
financial and other institutions named in it as Lenders. Terms defined in the
Facilities Agreement shall have the same meaning in this notice.


 


2.                                     This
L/C Bank Accession Certificate is delivered pursuant to Clause 5.11 (Appointment and Change of L/C Bank) of the Facilities
Agreement.


 


3.                                     [Name of L/C Bank] undertakes, upon its becoming an L/C Bank, to perform
all the obligations expressed to be undertaken under the Facilities Agreement
and the Finance Documents by an L/C Bank and agrees that it shall be bound by
the Facilities Agreement and the other Finance Documents in all respects as if
it had been an original party to it as an L/C Bank.


 


4.                                     [Name of L/C Bank]’s administrative details are as follows:


 


Address:


 


Fax No:


 


Contact:


 


5.             This L/C Bank Accession Certificate
shall be governed by English law.


 


For and on behalf
of


 


[Name of L/C Bank]


 


293

















 


SIGNATORIES


 


THE
PARENT


as
Parent and as Original Guarantor


 


	
  EXECUTED as a DEED

  	
  )

  
	
  by C. BANGMA

  	
  )

  
	
  for and on behalf of

  	
  )

  
	
  BUHRMANN
  N.V.

  	
  )

  
	
   

  	
   

  
	
  Address:

  	
  Hoogoorddreef 62

  
	
   

  	
  1101 BE Amsterdam

  
	
   

  	
  P.O. Box
  23456

  
	
   

  	
  1100 DZ Amsterdam

  
	
   

  	
  The Netherlands

  
	
   

  	
   

  
	
  Fax:

  	
  + 31 20 651 10 17

  
	
  Attention:

  	
  Mr K. Bangmax

  
	
   

  	
   

  
	
   

  	
   

  
	
  THE
  BORROWER

  	
   

  
	
   

  	
   

  
	
  EXECUTED as a DEED

  	
  )

  
	
  by C. BANGMA

  	
  )

  
	
  (ATTORNEY
  IN FACT)

  	
  )

  
	
  for and on behalf of

  	
  )

  
	
  BUHRMANN
  US INC.

  	
  )

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  1 Environmental
  Way

  
	
   

  	
  Broomfield,
  Colorado

  
	
   

  	
  80021-3416

  
	
   

  	
  United States

  
	
   

  	
   

  
	
  Fax:

  	
  303 664 3604

  
	
  Attention:

  	
  Nan Wilson

  
				



 


294

















 


THE
ORIGINAL GUARANTORS


 


	
  EXECUTED as a DEED

  	
  )

  
	
  by C. BANGMA

  	
  )

  
	
  (ATTORNEY IN FACT)

  	
  )

  
	
  for and on behalf of

  	
  )

  
	
  ASAP
  SOFTWARE EXPRESS, INC.

  	
  )

  
	
   

  	
   

  
	
  Address:

  	
  850 Asbury Drive

  
	
   

  	
  Buffalo Grove

  
	
   

  	
  Illinois 60089

  
	
   

  	
  United States

  
	
   

  	
   

  
	
  Fax:

  	
  +1 847 465 3277

  
	
  Attention:

  	
  Kim Stuart

  
	
   

  	
   

  
	
   

  	
   

  
	
  EXECUTED as a DEED

  	
  )

  
	
  by C. BANGMA

  	
  )

  
	
   

  	
   

  
	
  (ATTORNEY IN FACT)

  	
  )

  
	
  for and on behalf of

  	
  )

  
	
  BTOP
  USA CORP.

  	
  )

  
	
   

  	
   

  
	
  Address:

  	
  Corporate Trust
  Center

  
	
   

  	
  1209 Orange
  Street

  
	
   

  	
  Wilmington, DE
  19801

  
	
   

  	
   

  
	
   

  	
   

  
	
  EXECUTED as a DEED

  	
  )

  
	
  by C. BANGMA

  	
  )

  
	
   

  	
   

  
	
  (ATTORNEY IN FACT)

  	
  )

  
	
  for and on behalf of

  	
  )

  
	
  BTOPI
  HOLDING (U.S)

  	
  )

  
	
   

  	
   

  
	
  Address:

  	
  Six Parkway
  North, Suite 400

  
	
   

  	
  Deerfield, IL
  60015-2544

  
				



 


295

















 


	
  EXECUTED as a DEED

  	
  )

  
	
  by C. BANGMA

  	
  )

  
	
   

  	
   

  
	
  (ATTORNEY IN FACT)

  	
  )

  
	
  for and on behalf of

  	
  )

  
	
  BUHRMANN
  SWAPS, INC.

  	
  )

  
	
   

  	
   

  
	
  Address:

  	
  1 Environmental
  Way

  
	
   

  	
  Broomfield,
  Colorado

  
	
   

  	
  80021-3416

  
	
   

  	
  United States

  
	
   

  	
   

  
	
  Fax:

  	
  303 664 3604

  
	
  Attention:

  	
  Nan Wilson

  
	
   

  	
   

  
	
   

  	
   

  
	
  EXECUTED as a DEED

  	
  )

  
	
  by C. BANGMA

  	
  )

  
	
   

  	
   

  
	
  (ATTORNEY IN FACT)

  	
  )

  
	
  for and on behalf of

  	
  )

  
	
  CORPORATE
  EXPRESS DOCUMENT

  	
  )

  
	
  &
  PRINT MANAGEMENT, INC.

  	
  )

  
	
   

  	
   

  
	
  Address:

  	
  4205 South 96th
  Street

  
	
   

  	
  Omaha

  
	
   

  	
  NE 68127

  
	
   

  	
   

  
	
   

  	
   

  
	
  EXECUTED as a DEED

  	
  )

  
	
  by C. BANGMA

  	
  )

  
	
  (ATTORNEY IN FACT)

  	
  )

  
	
  for and on behalf of

  	
  )

  
	
  CORPORATE
  EXPRESS OFFICE 

  	
  )

  
	
  PRODUCTS,
   INC.

  	
  )

  
	
   

  	
   

  
	
  Address:

  	
  1 Environmental
  Way

  
	
   

  	
  Broomfield,
  Colorado

  
	
   

  	
  80021-3416

  
	
   

  	
  United States

  
	
   

  	
   

  
	
  Fax:

  	
  303 664 3604

  
	
  Attention:

  	
  Nan Wilson

  
					



 


296

















 


	
  EXECUTED as a DEED

  	
  )

  
	
  by C. BANGMA

  	
  )

  
	
   

  	
   

  
	
  (ATTORNEY IN FACT)

  	
  )

  
	
  for and on behalf of

  	
  )

  
	
  CE
  PHILADELPHIA REAL ESTATE, 

  	
  )

  
	
  INC.

  	
  )

  
	
   

  	
   

  
	
  Address:

  	
  1 Environmental
  Way

  
	
   

  	
  Broomfield,
  Colorado

  
	
   

  	
  80021-3416

  
	
   

  	
  United States

  
	
   

  	
   

  
	
  Fax:

  	
  303 664 3604

  
	
  Attention:

  	
  Nan Wilson

  
	
   

  	
   

  
	
   

  	
   

  
	
  EXECUTED as a DEED

  	
  )

  
	
  by C. BANGMA

  	
  )

  
	
   

  	
   

  
	
  (ATTORNEY IN FACT)

  	
  )

  
	
  for and on behalf of

  	
  )

  
	
  CORPORATE
  EXPRESS

  	
  )

  
	
  PROMOTIONAL
  MARKETING, INC.

  	
  )

  
	
   

  	
   

  
	
  Address:

  	
  1400 North Price
  Road

  
	
   

  	
  St. Louis

  
	
   

  	
  MO 63132

  
			



 


297

















 


	
  EXECUTED as a DEED

  	
  )

  
	
  by C. BANGMA

  	
  )

  
	
  (ATTORNEY IN FACT

  	
  )

  
	
  for and on behalf of

  	
  )

  
	
  CORPORATE
  EXPRESS REAL

  	
  )

  
	
  ESTATE,
  INC.

  	
  )

  
	
   

  	
   

  
	
  Address:

  	
  1 Environmental
  Way

  
	
   

  	
  Broomfield,
  Colorado

  
	
   

  	
  80021-3416

  
	
   

  	
  United States

  
	
   

  	
   

  
	
  Fax:

  	
  303 664 3604

  
	
  Attention:

  	
  Nan Wilson

  
	
   

  	
   

  
	
   

  	
   

  
	
  EXECUTED as a DEED

  	
  )

  
	
  by C. BANGMA

  	
  )

  
	
  (ATTORNEY IN FACT

  	
  )

  
	
  for and on behalf of

  	
  )

  
	
  CORPORATE
  EXPRESS OF TEXAS,

  	
  )

  
	
  INC.)

  	
  )

  
	
   

  	
   

  
	
  Address:

  	
  6400 Hollister
  Road

  
	
   

  	
  Houston

  
	
   

  	
  TX 77040

  
	
   

  	
   

  
	
   

  	
   

  
	
  EXECUTED as a DEED

  	
  )

  
	
  by C. BANGMA

  	
  )

  
	
  (ATTORNEY IN FACT

  	
  )

  
	
  for and on behalf of

  	
  )

  
	
  CORPORATE
  EXPRESS, INC.

  	
  )

  
	
   

  	
   

  
	
  Address:

  	
  1 Environmental
  Way

  
	
   

  	
  Broomfield,
  Colorado

  
	
   

  	
  80021-3416

  
	
   

  	
  United States

  
	
   

  	
   

  
	
  Fax:

  	
  303 664 3604

  
	
  Attention:

  	
  Nan Wilson

  
			



 


298

















 


	
  EXECUTED as a DEED

  	
  )

  
	
  by C. BANGMA

  	
  )

  
	
  (ATTORNEY IN FACT)

  	
  )

  
	
  for and on behalf of

  	
  )

  
	
  LICENSE
  TECHNOLOGIES GROUP,

  	
  )

  
	
  INC.)

  	
  )

  
	
   

  	
   

  
	
  Address:

  	
  850 Ashbury
  Street

  
	
   

  	
  Buffalo Grove, IL
  60099

  
	
   

  	
   

  
	
   

  	
   

  
	
  EXECUTED as a DEED

  	
  )

  
	
  by C. BANGMA

  	
  )

  
	
  (ATTORNEY IN FACT)

  	
  )

  
	
  for and on behalf of

  	
  )

  
	
  MOORE
  LABELS, INC.

  	
  )

  
	
   

  	
   

  
	
  Address:

  	
  9909 West York St

  
	
   

  	
  Wichita, KS 67277

  
	
   

  	
   

  
	
   

  	
   

  
	
  EXECUTED as a DEED

  	
  )

  
	
  by C. BANGMA

  	
  )

  
	
  (AUTHORISED
  INDIVIDUAL)

  	
  )

  
	
  for and on behalf of

  	
  )

  
	
  BUHRMANN
  FINANCIERINGEN B.V.

  	
  )

  
	
   

  	
   

  
	
  Address:

  	
  Hoogoorddreef 62

  
	
   

  	
  1101 BE Amsterdam

  
	
   

  	
  P.O. Box
  23456

  
	
   

  	
  1100 DZ Amsterdam

  
	
   

  	
  The Netherlands

  
	
   

  	
   

  
	
  Fax:

  	
  + 31 20 651 10 17

  
	
  Attention:

  	
  Mr K. Bangma

  
				



 


299

















 


	
  EXECUTED as a DEED

  	
  )

  
	
  by C. BANGMA

  	
  )

  
	
  (AUTHORISED
  INDIVIDUAL)

  	
  )

  
	
  for and on behalf of

  	
  )

  
	
  BUHRMANN
  FINED B.V.

  	
  )

  
	
   

  	
   

  
	
  Address:

  	
  Hoogoorddreef 62

  
	
   

  	
  1101 BE Amsterdam

  
	
   

  	
  P.O. Box
  23456

  
	
   

  	
  1100 DZ Amsterdam

  
	
   

  	
  The Netherlands

  
	
   

  	
   

  
	
  Fax:

  	
  + 31 20 651 10 17

  
	
  Attention:

  	
  Mr K. Bangma

  
	
   

  	
   

  
	
   

  	
   

  
	
  EXECUTED as a DEED

  	
  )

  
	
  by C. BANGMA

  	
  )

  
	
  (AUTHORISED
  INDIVIDUAL

  	
  )

  
	
  for and on behalf of

  	
  )

  
	
  BUHRMANN
  II B.V.

  	
  )

  
	
   

  	
   

  
	
  Address:

  	
  Hoogoorddreef 62

  
	
   

  	
  1101 BE Amsterdam

  
	
   

  	
  P.O. Box
  23456

  
	
   

  	
  1100 DZ Amsterdam

  
	
   

  	
  The Netherlands

  
	
   

  	
   

  
	
  Fax:

  	
  + 31 20 651 10 17

  
	
  Attention:

  	
  Mr K. Bangma

  
			



 


300














 


	
  EXECUTED as
  a DEED

  	
  )

  	
   

  
	
  by C. BANGMA

  	
  )

  	
   

  
	
   (AUTHORISED INDIVIDUAL)

  	
  )

  	
   

  
	
  for and on behalf
  of

  	
  )

  	
   

  
	
  BUHRMANN
  INTERNATIONAL B.V.

  	
  )

  	
   

  



 


	
  Address:

  	
   

  	
  Hoogoorddreef 62

  
	
   

  	
   

  	
  1101 BE Amsterdam

  
	
   

  	
   

  	
  P.O. Box
  23456

  
	
   

  	
   

  	
  1100 DZ Amsterdam

  
	
   

  	
   

  	
  The Netherlands

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  + 31 20 651 10 17

  
	
  Attention:

  	
   

  	
  Mr K. Bangma

  



 


 


	
  EXECUTED as a DEED

  	
  )

  	
   

  
	
  by C. BANGMA

  	
  )

  	
   

  
	
   (AUTHORISED INDIVIDUAL)

  	
  )

  	
   

  
	
  for and on behalf of

  	
  )

  	
   

  
	
  BUHRMANN
  NEDERLAND B.V.

  	
  )

  	
   

  



 


	
  Address:

  	
   

  	
  Hoogoorddreef 62

  
	
   

  	
   

  	
  1101 BE Amsterdam

  
	
   

  	
   

  	
  P.O. Box
  23456

  
	
   

  	
   

  	
  1100 DZ Amsterdam

  
	
   

  	
   

  	
  The Netherlands

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  + 31 20 651 10 17

  
	
  Attention:

  	
   

  	
  Mr K. Bangma

  



 


301

















 


	
  EXECUTED as a DEED

  	
  )

  	
   

  
	
  by C. BANGMA

  	
  )

  	
   

  
	
   (AUTHORISED INDIVIDUAL)

  	
  )

  	
   

  
	
  for and on behalf of

  	
  )

  	
   

  
	
  BUHRMANN
  NEDERLAND HOLDING B.V.

  	
  )

  	
   

  



 


	
  Address:

  	
   

  	
  Hoogoorddreef 62

  
	
   

  	
   

  	
  1101 BE Amsterdam

  
	
   

  	
   

  	
  P.O. Box
  23456

  
	
   

  	
   

  	
  1100 DZ Amsterdam

  
	
   

  	
   

  	
  The Netherlands

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  + 31 20 651 10 17

  
	
  Attention:

  	
   

  	
  Mr K. Bangma

  



 


 


	
  EXECUTED as a DEED

  	
  )

  	
   

  
	
  by C. BANGMA

  	
  )

  	
   

  
	
   (AUTHORISED INDIVIDUAL)

  	
  )

  	
   

  
	
  for and on behalf of

  	
  )

  	
   

  
	
  TETTERODE-NEDERLAND
  B.V.

  	
  )

  	
   

  
	
  Address:

  	
   

  	
  Hoogoorddreef 62

  
	
   

  	
   

  	
  1101 BE Amsterdam

  
	
   

  	
   

  	
  P.O. Box
  23456

  
	
   

  	
   

  	
  1100 DZ Amsterdam

  
	
   

  	
   

  	
  The Netherlands

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  + 31 20 651 10 17

  
	
  Attention:

  	
   

  	
  Mr K. Bangma

  
					



 


302

















 


	
  EXECUTED as a DEED

  	
  )

  	
   

  
	
  by C. BANGMA

  	
  )

  	
   

  
	
   (AUTHORISED INDIVIDUAL)

  	
  )

  	
   

  
	
  for and on behalf of

  	
  )

  	
   

  
	
  VEENMAN
  B.V.

  	
  )

  	
   

  
	
  (formerly
  known as Corporate Express

  	
  )

  	
   

  
	
  Document
  Automatisering B.V.)

  	
  )

  	
   

  



 


	
  Address:

  	
   

  	
  Hoogoorddreef 62

  
	
   

  	
   

  	
  1101 BE Amsterdam

  
	
   

  	
   

  	
  P.O. Box
  23456

  
	
   

  	
   

  	
  1100 DZ Amsterdam

  
	
   

  	
   

  	
  The Netherlands

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  + 31 20 651 10 17

  
	
  Attention:

  	
   

  	
  Mr K. Bangma

  



 


 


	
  EXECUTED as a DEED

  	
  )

  	
   

  
	
  by C. BANGMA

  	
  )

  	
   

  
	
   (AUTHORISED INDIVIDUAL)

  	
  )

  	
   

  
	
  for and on behalf of

  	
  )

  	
   

  
	
  BUHRMANN
  OFFICE PRODUCTS

  	
  )

  	
   

  
	
  NEDERLAND
  B.V.

  	
  )

  	
   

  
	
  Address:

  	
   

  	
  Rondebettweg 102

  
	
   

  	
   

  	
  1329 BH Almere

  
	
   

  	
   

  	
  The Netherlands

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  + 31 30 248 4104

  
	
  Attention:

  	
   

  	
  Mr J. van der
  Veer

  
					



 


 


	
  EXECUTED as a DEED

  	
  )

  	
   

  
	
  by C. BANGMA

  	
  )

  	
   

  
	
   (ATTORNEY IN FACT)

  	
  )

  	
   

  
	
  for and on behalf of

  	
  )

  	
   

  
	
  BUHRMANN
  SHARED SERVICE CENTER N.V. (FORMERLY KNOWN AS 

  
	
  BUHRMANN
  EUROPCENTER N.V.)  

  	
  )

  	
   

  
	
  Address:

  	
   

  	
  Bodemstraat 11,
  bus 1

  
	
   

  	
   

  	
  3830 Wellen

  
	
   

  	
   

  	
  Belgium

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +32 11 37 6044

  
	
  Attention:

  	
   

  	
  Mr F. Maurissen

  
					



 


303

















 


	
  EXECUTED as
  a DEED

  	
  )

  	
   

  
	
  by C. BANGMA

  	
  )

  	
   

  
	
   (ATTORNEY IN FACT)

  	
  )

  	
   

  
	
  for and on behalf
  of

  	
  )

  	
   

  
	
  BUHRMANN
  LUXEMBOURG S.A.R.L.

  	
  )

  	
   

  



 


 


	
  Address:

  	
   

  	
  c/o Buhrmann
  Shared Service Center N.V. (formerly known as 

  
	
   

  	
   

  	
  Buhrmann
  Europcenter N.V.)

  
	
   

  	
   

  	
  Bodemstraat 11

  
	
   

  	
   

  	
  bus 1

  
	
   

  	
   

  	
  3830 Wellen

  
	
   

  	
   

  	
  Belgium

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +32 11 37 6044

  
	
  Attention:

  	
   

  	
  Mr. F Maurissen

  



 


The provisions set
out in Clause 49 (Jurisdiction)
are hereby expressly agreed to by Buhrmann Luxembourg S.A.R.L. for the
purposes, inter alia, of Article 1 of the Protocol annexed to the
Convention on jurisdiction and enforcement of judgments in civil and commercial
matters signed in Brussels on 27 September 1968.


 


Date 23 December 2003


 


For and on behalf
of


BUHRMANN
LUXEMBOURG S.A.R.L.


By C BANGA


      (ATTORNEY IN FACT)


 


	
  Address:

  	
   

  	
  c/o Buhrmann
  Shared Service Center N.V. (formerly known as 

  
	
   

  	
   

  	
  Buhrmann
  Europcenter N.V.)

  
	
   

  	
   

  	
  Bodemstraat 11

  
	
   

  	
   

  	
  bus 1

  
	
   

  	
   

  	
  3830 Wellen

  
	
   

  	
   

  	
  Belgium

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +32 11 37 6044

  
	
  Attention:

  	
   

  	
  Mr. F
  Maurissen

  



 


304

















 


THE
ARRANGERS


 


DEUTSCHE
BANK AG LONDON


 


	
  By:

  	
   

  	
  RICHARD MUNN

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  JASON BRUHL

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  Winchester House

  
	
   

  	
   

  	
  1 Great
  Winchester Street

  
	
   

  	
   

  	
  London EC2N 2DB

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +44 20 7547 1306

  
	
  Attention:

  	
   

  	
  David Ardron

  



 


 


ABN
AMRO BANK N.V.


 


	
  By:

  	
   

  	
  ERWIN DE JONG

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  Frank L.D. NIVARD

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  PO Box 283

  
	
   

  	
   

  	
  1000 EA Amsterdam
  (PAC: KQ 6044)

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  31 20 383 1087

  
	
  Email:

  	
   

  	
  LOAN.SERVICING.CS.DESK@NL.ABNAMRO.COM

  
	
  Attention:

  	
   

  	
  Loan Servicing CS
  Desk

  



 


 


THE
AGENT


 


DEUTSCHE
BANK AG LONDON


 


	
  By:

  	
   

  	
  RICHARD MUNN

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  JASON BRUHL

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  Winchester House

  
	
   

  	
   

  	
  1 Great Winchester
  Street

  
	
   

  	
   

  	
  London EC2N 2DB

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +44 20 7547 1306

  
	
  Attention:

  	
   

  	
  David Ardron

  



 


305

















 


THE
SECURITY TRUSTEE


 


	
  EXECUTED as a DEED

  	
  )

  
	
  by RICHARD MUNN and

  	
  )

  
	
  by JASON BRUHL

  	
  )

  
	
  for and on behalf of

  	
  )

  
	
  DEUTSCHE
  BANK AG LONDON

  	
  )

  



 


	
  Address:

  	
   

  	
  Winchester House

  
	
   

  	
   

  	
  1 Great
  Winchester Street

  
	
   

  	
   

  	
  London EC2N 2DB

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +44 20 7547 1306

  
	
  Attention:

  	
   

  	
  David Ardron

  



 


 


THE
LENDERS


 


DEUTSCHE
BANK AG LONDON


 


	
  By:

  	
   

  	
  RICHARD MUNN

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  JASON BRUHL

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  Winchester House

  
	
   

  	
   

  	
  1 Great
  Winchester Street

  
	
   

  	
   

  	
  London EC2N 2DB

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +44 20 7547 1306

  
	
  Attention:

  	
   

  	
  David Ardron

  



 


306

















 


ABN
AMRO BANK N.V.


 


	
  By:

  	
   

  	
  ERWIN DE JONG

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  Frank L.D. NIVARD

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  PO Box 283

  
	
   

  	
   

  	
  1000 EA Amsterdam
  (PAC: KQ 6044)

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  31 20 383 1087

  
	
  Email:

  	
   

  	
  LOAN.SERVICING.CS.DESK@NL.ABNAMRO.COM

  
	
  Attention:

  	
   

  	
  Loan Servicing CS
  Desk

  



 


 


ING
BANK N.V.


 


	
  By:

  	
   

  	
  F.J.J. BOUMANS

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  K.M. OVERWATER

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  ING Bank
  Corporate Clients

  
	
   

  	
   

  	
  Bijlmerplein 888

  
	
   

  	
   

  	
  1102 MG
  Amsterdam/The Netherlands

  
	
   

  	
   

  	
  PO Box 23496

  
	
   

  	
   

  	
  1100 D2
  Amsterdam/The Netherlands

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +31 20 652 3894

  
	
  E-mail:

  	
   

  	
  corporate.clients.amsterdam@ingbank.nl

  
	
  Attention:

  	
   

  	
  Mrs E.M. Klos-de
  Jong (Jacqueline)

  



 


307

















 


FORTIS
CAPITAL CORP.


 


	
  By:

  	
   

  	
  EDDIE MATTHEWS

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  DOUGLAS RIAHI

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  3 Stamford Plaza

  
	
   

  	
   

  	
  301 Tresser
  Boulevard

  
	
   

  	
   

  	
  9th
  Floor

  
	
   

  	
   

  	
  Stamford, CT
  06901-3239

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +1 (203) 705 5890

  
	
  Email:

  	
   

  	
  Stephen.suo@fortiscapitalusa.com
  /

  
	
   

  	
   

  	
  John.OConnor@fortiscapitalusa.com

  
	
  Attention:

  	
   

  	
  Stephen Suo /
  John O’Connor

  



 


 


COÖPERATIEVE
CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.


 


	
  By:

  	
   

  	
  C. DE VRIES

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  H.E. VAN IMHOFF

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  Croeselaan 18,
  3521 CB

  
	
   

  	
   

  	
  Utrecht

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +31 30 216 2946

  
	
  Email :

  	
   

  	
  FM.NL.URECHT.AGENCY@RABOBANK.COM

  
	
  Attention:

  	
   

  	
  Agency Desk
  Nederland

  



 


 


	
  U.S.
  BANK, N.A.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  JACOB PAYNE

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  555 Southwest Oak

  
	
   

  	
   

  	
  Portland, OR
  97204

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  503 275 8181

  
	
  Email:

  	
   

  	
  Maryjosie.butalid@usbank.com

  
	
  Attention:

  	
   

  	
  Josie Butalid

  



 


308

















 


	
  THE
  BANK OF NEW YORK

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  ELIZABETH T. YING

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  The Bank of New
  York

  
	
   

  	
   

  	
  One Wall St., 22nd
  Floor

  
	
   

  	
   

  	
  New York, NY
  10005

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  (212) 635-6399 or
  6877

  
	
  Attention:

  	
   

  	
  Dawn Hertling

  



 


 


	
  SCOTIABANK
  EUROPE PLC

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  JAMIE STORROW

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  Scotia House

  
	
   

  	
   

  	
  33 Finsbury
  Square

  
	
   

  	
   

  	
  London EC2A 1BB

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +44 (0) 20 7826
  5617

  
	
  Email:

  	
   

  	
  lee_boden@scotiacapital.com

  
	
  Attention:

  	
   

  	
  Lee Boden

  



 


 


	
  CREDIT
  INDUSTRIEL ET COMMERCIAL

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  A DE GROMARD

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  PIERRE LATROBE

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  CIC – Centre
  Administratif DGC-CEF

  
	
   

  	
   

  	
  95091 Cergy
  Pontoise Cedex

  
	
   

  	
   

  	
  France

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +33 1 45 96 49 44

  
	
  Email:

  	
   

  	
  merardan@cic.fr

  
	
  Attention:

  	
   

  	
  Annick Merard

  



 


309

















 


	
  NATEXIS
  BANQUES POPULAIRES

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  NICOLAS REGENT

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  ANNE ULRICH

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  1251 Avenue of
  the Americas

  
	
   

  	
   

  	
  34th
  Floor

  
	
   

  	
   

  	
  New York, NY
  10020

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  (212) 872-5160

  
	
  Email:

  	
   

  	
  connie.moy@nyc.nxbp.com

  
	
  Attention:

  	
   

  	
  Connie Moy

  



 


 


	
  NATIONAL
  CITY BANK

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  MICHAEL MOOSE

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  1900 E 9th
  Street

  
	
   

  	
   

  	
  Cleveland, Ohio
  44114

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +(1) 216 222
  0003

  
	
  Attention:

  	
   

  	
  David Gregory

  



 


 


	
  RAIFFEISEN
  ZENTRALBANK ÖSTERREICH AKTIENGESELLSCHAFT

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  BARBARA
  ERICSON-PEICHL

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  BRIGITTE SCHUSTER

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  Am Stadtpark 9

  
	
   

  	
   

  	
  A-1030 Vienna

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +43 1 71707 76
  1558 (Ms. Stift)

  
	
   

  	
   

  	
  +43 1 71707 76
  1219 (Ms. Fabian)

  
	
  Email:

  	
   

  	
  margit.stift@rzb.at/angelika.fabian@rzb.at

  
	
  Attention:

  	
   

  	
  Ms. Margit
  Stift / Ms. Angelika Fabian

  



 


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  BANQUE
  LB LUX S.A.

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  HERBERT WEYNAND

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  KERSTIN FRANZEN

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  3, rue Jean
  Monnet

  
	
   

  	
   

  	
  L-2180 Luxembourg

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  00 352 42434 3397

  
	
  Email:

  	
   

  	
  alain/wenner@lblux.lu/

  
	
   

  	
   

  	
  norma.plath@lblux.lu

  
	
  Attention:

  	
   

  	
  Alain Wenner /
  Norma Plath

  



 


 


	
  NATIONAL
  BANK OF EGYPT INTERNATIONAL LIMITED

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  MARGARET BULL

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  AHMED A. MAKSOUD

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  Credit Department

  
	
   

  	
   

  	
  Trafalgar House

  
	
   

  	
   

  	
  11 Waterloo Place

  
	
   

  	
   

  	
  London SW1Y 4AU

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +44 (0) 20 7839
  5311

  
	
  Attention:

  	
   

  	
  Ms M Bull

  



 


 


	
  BANK
  OF MONTREAL

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  BRIAN L BANKE

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  115 South LaSalle
  Street

  
	
   

  	
   

  	
  Chicago, IL 60603

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  312 750 6061

  
	
  Email:

  	
   

  	
  alicia.garcia@bmo.com

  
	
  Attention:

  	
   

  	
  Alicia Garcia

  



 


311

















 


	
  L/C
  BANK

  
	
   

  
	
  DEUTSCHE
  BANK AG LONDON

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  RICHARD MUNN

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  JASON BRUHL

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  Winchester House

  
	
   

  	
   

  	
  1 Great
  Winchester Street

  
	
   

  	
   

  	
  London EC2N 2DB

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +44 20 7547 1306

  
	
  Attention:

  	
   

  	
  David Ardron

  



 


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