EXHIBIT 4.18


 


EXECUTION COPY


 


	
   

  	
   

  	
   

  
	
  PE PAPER ESCROW GmbH

  
	
   

  
	
  as Issuer

  
	
   

  
	
  J.P. MORGAN EUROPE LIMITED

  
	
   

  
	
  as Security Agent

  
	
   

  
	
  THE BANK OF NEW YORK MELLON

  
	
   

  
	
  as Trustee, Transfer Agent, Registrar and Principal Paying Agent

  
	
   

  
	
  and

  
	
   

  
	
  THE BANK OF NEW YORK MELLON (LUXEMBOURG) S.A.

  
	
   

  
	
  as Luxembourg Paying Agent, Transfer Agent and Registrar

  
	
   

  
	
   

  	
   

  	
   

  
	
  INDENTURE

  
	
   

  
	
  Dated as of July 29, 2009

  
	
   

  	
   

  	
   

  
	
   

  
	
  €350,000,000 11.75%  Senior
  Secured Notes due 2014

  
	
   

  
	
  $300,000,000 12% Senior Secured Notes due 2014

  



 


 


BRINGING
THIS DOCUMENT OR ANY CERTIFIED COPY OF THIS DOCUMENT INTO THE REPUBLIC OF
AUSTRIA AS WELL AS ANY WRITTEN CONFIRMATION (INCLUDING E-MAIL AND FAX) OR
WRITTEN REFERENCE (INCLUDING E-MAIL AND FAX) TO THIS DOCUMENT MAY CAUSE
THE IMPOSITION OF AUSTRIAN STAMP DUTY TAX.


 


 


This
Indenture is entered into with the benefit of and subject to the terms of the
Intercreditor Agreement (as defined herein).


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1

  
	
  DEFINITIONS

  
	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  Definitions

  	
  1

  
	
  Section 1.02

  	
  Other Definitions

  	
  32

  
	
  Section 1.03

  	
  [Reserved]

  	
  32

  
	
  Section 1.04

  	
  Rules of Construction

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  
	
  THE NOTES

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Form and Dating

  	
  33

  
	
  Section 2.02

  	
  Execution and Authentication

  	
  35

  
	
  Section 2.03

  	
  Paying Agent, Registrars and
  Transfer Agents

  	
  35

  
	
  Section 2.04

  	
  Paying Agent to Hold Money

  	
  36

  
	
  Section 2.05

  	
  Holder Lists

  	
  36

  
	
  Section 2.06

  	
  Transfer and Exchange

  	
  36

  
	
  Section 2.07

  	
  Replacement Notes

  	
  45

  
	
  Section 2.08

  	
  Outstanding Notes

  	
  45

  
	
  Section 2.09

  	
  Temporary Notes

  	
  45

  
	
  Section 2.10

  	
  Cancellation

  	
  45

  
	
  Section 2.11

  	
  Defaulted Interest

  	
  46

  
	
  Section 2.12

  	
  Further Issues

  	
  46

  
	
  Section 2.13

  	
  CUSIP, ISIN or Common Code Number

  	
  46

  
	
  Section 2.14

  	
  Deposit of Moneys

  	
  47

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  
	
  REDEMPTION AND PREPAYMENT

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Notices to Trustee

  	
  47

  
	
  Section 3.02

  	
  Selection of Notes to Be Redeemed

  	
  47

  
	
  Section 3.03

  	
  Notice of Redemption

  	
  48

  
	
  Section 3.04

  	
  Effect of Notice of Redemption

  	
  49

  
	
  Section 3.05

  	
  Deposit of Purchase or Redemption Price

  	
  49

  
	
  Section 3.06

  	
  Notes Redeemed in Part

  	
  49

  
	
  Section 3.07

  	
  Optional Redemption

  	
  49

  
	
  Section 3.08

  	
  Redemption for Changes in Taxes

  	
  50

  
	
  Section 3.09

  	
  Special Redemption

  	
  51

  
	
  Section 3.10

  	
  Mandatory Redemption

  	
  52

  
	
  Section 3.11

  	
  [Reserved]

  	
  52

  
	
  Section 3.12

  	
  Offer to Purchase by Application of
  Excess Proceeds

  	
  52

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Payment of Notes

  	
  54

  
	
  Section 4.02

  	
  Maintenance of Office or Agency

  	
  55

  
	
  Section 4.03

  	
  Reports and Other Information

  	
  55

  
	
  Section 4.04

  	
  Compliance Certificate

  	
  57

  
	
  Section 4.05

  	
  [Reserved]

  	
  57

  



 


i

















 


	
  Section 4.06

  	
  Stay, Extension and Usury Laws

  	
  57

  
	
  Section 4.07

  	
  Limitations on Restricted Payments

  	
  57

  
	
  Section 4.08

  	
  Dividend and Other Payment
  Restrictions Affecting Restricted Subsidiaries

  	
  60

  
	
  Section 4.09

  	
  Limitation on Incurrence of
  Indebtedness and Issuance of Preferred Stock

  	
  62

  
	
  Section 4.10

  	
  Asset Sales

  	
  68

  
	
  Section 4.11

  	
  Transactions with Affiliates

  	
  70

  
	
  Section 4.12

  	
  Liens

  	
  71

  
	
  Section 4.13

  	
  Additional Intercreditor Agreement

  	
  71

  
	
  Section 4.14

  	
  Offer to Repurchase Upon Change of
  Control

  	
  71

  
	
  Section 4.15

  	
  Designation of Restricted and
  Unrestricted Subsidiaries

  	
  73

  
	
  Section 4.16

  	
  Limitation on Issuance of
  Guarantees of Indebtedness by Restricted Subsidiaries

  	
  73

  
	
  Section 4.17

  	
  Additional Amounts

  	
  74

  
	
  Section 4.18

  	
  Maintenance of Listing

  	
  76

  
	
  Section 4.19

  	
  No Impairment of Security Interests

  	
  76

  
	
  Section 4.20

  	
  Payments for Consent

  	
  77

  
	
  Section 4.21

  	
  Suspension of Certain Covenants when
  Notes Rated Investment Grade

  	
  77

  
	
  Section 4.22

  	
  The Issuer and the Notes Proceeds
  Loan

  	
  77

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  
	
  SUCCESSORS

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Merger, Consolidation or Sale of
  Assets

  	
  78

  
	
  Section 5.02

  	
  Successor Corporation Substituted

  	
  80

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  
	
  DEFAULTS AND REMEDIES

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Events of Default

  	
  81

  
	
  Section 6.02

  	
  Acceleration

  	
  83

  
	
  Section 6.03

  	
  Other Remedies

  	
  83

  
	
  Section 6.04

  	
  Waiver of Past Defaults

  	
  83

  
	
  Section 6.05

  	
  Control by Majority

  	
  83

  
	
  Section 6.06

  	
  Limitation on Suits

  	
  84

  
	
  Section 6.07

  	
  Rights of Holders of Notes to
  Receive Payment

  	
  84

  
	
  Section 6.08

  	
  Collection Suit by Trustee

  	
  84

  
	
  Section 6.09

  	
  Trustee May File Proofs of
  Claim

  	
  84

  
	
  Section 6.10

  	
  Priorities

  	
  85

  
	
  Section 6.11

  	
  Undertaking for Costs

  	
  85

  
	
  Section 6.12

  	
  Agents

  	
  85

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  
	
  TRUSTEE

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Duties of Trustee

  	
  86

  
	
  Section 7.02

  	
  Rights of Trustee

  	
  86

  
	
  Section 7.03

  	
  Individual Rights of Trustee

  	
  88

  
	
  Section 7.04

  	
  Trustee’s Disclaimer

  	
  88

  
	
  Section 7.05

  	
  Notice of Defaults

  	
  89

  
	
  Section 7.06

  	
  Compensation and Indemnity

  	
  89

  
	
  Section 7.07

  	
  Replacement of Trustee

  	
  90

  
	
  Section 7.08

  	
  Successor Trustee by Merger, etc.

  	
  90

  
	
  Section 7.09

  	
  Eligibility; Disqualification

  	
  91

  



 


ii

















 


	
  ARTICLE 8

  
	
  LEGAL DEFEASANCE AND COVENANT DEFEASANCE

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Option to Effect Legal Defeasance
  or Covenant Defeasance

  	
  91

  
	
  Section 8.02

  	
  Legal Defeasance and Discharge

  	
  91

  
	
  Section 8.03

  	
  Covenant Defeasance

  	
  91

  
	
  Section 8.04

  	
  Conditions to Legal or Covenant
  Defeasance

  	
  92

  
	
  Section 8.05

  	
  Deposited Money, U.S. Government
  Securities and European Government Obligations Held in Trust; Other
  Miscellaneous Provisions

  	
  93

  
	
  Section 8.06

  	
  Repayment to Issuer

  	
  93

  
	
  Section 8.07

  	
  Reinstatement

  	
  94

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  
	
  AMENDMENT, SUPPLEMENT AND WAIVER

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Without Consent of Holders of Notes

  	
  94

  
	
  Section 9.02

  	
  With Consent of Holders of Notes

  	
  95

  
	
  Section 9.03

  	
  Revocation and Effect of Consents

  	
  97

  
	
  Section 9.04

  	
  Notation on or Exchange of Notes

  	
  97

  
	
  Section 9.05

  	
  Trustee and the Security Agent to
  Sign Amendments

  	
  97

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  
	
  COLLATERAL AND SECURITY

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Security Documents

  	
  97

  
	
  Section 10.02

  	
  Release of Collateral

  	
  98

  
	
  Section 10.03

  	
  Authorization of Actions to Be
  Taken by the Trustee

  	
  98

  
	
  Section 10.04

  	
  Authorization of Receipt of Funds
  by the Trustee Under the Collateral Documents

  	
  99

  
	
  Section 10.05

  	
  Termination of Security Interest

  	
  99

  
	
  Section 10.06

  	
  Further Action

  	
  100

  
	
  Section 10.07

  	
  [Reserved]

  	
  100

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  
	
  NOTE GUARANTEES

  
	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  Guarantee

  	
  100

  
	
  Section 11.02

  	
  Limitation on Guarantor Liability

  	
  101

  
	
  Section 11.03

  	
  Execution and Delivery of Note
  Guarantee

  	
  104

  
	
  Section 11.04

  	
  Releases

  	
  105

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  
	
  SATISFACTION AND DISCHARGE

  
	
   

  	
   

  	
   

  
	
  Section 12.01

  	
  Satisfaction and Discharge

  	
  105

  
	
  Section 12.02

  	
  Application of Trust Money

  	
  106

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  Section 13.01

  	
  Notices

  	
  107

  
	
  Section 13.02

  	
  Certificate and Opinion as to
  Conditions Precedent

  	
  109

  
	
  Section 13.03

  	
  Statements Required in Certificate
  or Opinion

  	
  109

  
	
  Section 13.04

  	
  Rules by Trustee and Agents

  	
  109

  
	
  Section 13.05

  	
  Agent for Service; Submission to
  Jurisdiction; Waiver of Immunities

  	
  110

  



 


iii

















 


	
  Section 13.06

  	
  No Personal Liability of Directors,
  Officers, Employees and Shareholders

  	
  110

  
	
  Section 13.07

  	
  Governing Law

  	
  110

  
	
  Section 13.08

  	
  No Adverse Interpretation of Other
  Agreements

  	
  110

  
	
  Section 13.09

  	
  Successors

  	
  110

  
	
  Section 13.10

  	
  Severability

  	
  111

  
	
  Section 13.11

  	
  Counterpart Originals

  	
  111

  
	
  Section 13.12

  	
  Table of Contents, Headings, etc.

  	
  111

  
	
  Section 13.13

  	
  Judgment Currency

  	
  111

  
	
  Section 13.14

  	
  Prescription

  	
  111

  
	
  Section 13.15

  	
  Place of performance

  	
  111

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  FORM OF NOTE

  	
   

  
	
  Exhibit B

  	
  FORM OF CERTIFICATE OF
  TRANSFER

  	
   

  
	
  Exhibit C

  	
  FORM OF CERTIFICATE OF
  EXCHANGE

  	
   

  
	
  Exhibit D

  	
  FORM OF NOTATION OF GUARANTEE

  	
   

  
	
  Exhibit E

  	
  FORM OF SUPPLEMENTAL INDENTURE

  	
   

  
	
  Exhibit F

  	
  AGREED SECURITY PRINCIPLES

  	
   

  



 


iv














 


INDENTURE dated as
of July 29, 2009 by and among PE Paper Escrow GmbH, an Austrian limited
liability company (Gesellschaft mit
beschränkter Haftung), having its registered office at
Teinfaltstrasse 8, 1010 Vienna, Austria and registered with the Commercial
Court of Vienna, Austria under registration number FN 315874 x, J.P. Morgan
Europe Limited, as Security Agent, The Bank of New York Mellon, as Trustee,
Principal Paying Agent, Registrar and Transfer Agent, and The Bank of New York
Mellon (Luxembourg) S.A., as Luxembourg Paying Agent, Transfer Agent and
Registrar.


 


The Issuer and the
Trustee agree as follows for the benefit of each other and for the equal and
ratable benefit of the Holders (as defined below) of the 11.75% Senior Secured
Notes due 2014 in an aggregate principal amount of €350,000,000 and the 12%
Senior Secured Notes due 2014 in an aggregate principal amount of $300,000,000
(collectively, the “Initial Notes”)
and the Holders of any Additional Notes (as defined below and, together with
the Initial Notes, the “Notes”).


 


ARTICLE 1

DEFINITIONS


 


Section 1.01                            Definitions.


 


“Acquired Business”
means the coated paper business and certain related uncoated paper business
activities of M-real Corporation acquired by the Parent on December 31,
2008.


 


“Acquired Debt”
means, with respect to any specified Person:


 


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


 


(2)                                 Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person.


 


“Acquisition” means the acquisition of the
Acquired Business by the Parent on December 31, 2008.


 


“Affiliate”
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person.  For purposes of
this definition, “control”, as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.  For purposes of this definition, the terms “controlling”,
“controlled by” and “under common control with” have correlative meanings.


 


“Agent”
means any Registrar, co-registrar, Transfer Agent, Paying Agent or additional
paying agent.


 


“Agreed Security
Principles” means the Agreed Security Principles set out in Exhibit F to this Indenture, as
applied reasonably and in good faith by the Parent or the Issuer.


 


“Applicable Premium”
means, with respect to any Note on any redemption date, in the case of the
Dollar Notes, the greater of:


 


(1)                                 1.0% of the principal amount of the Dollar Notes; or


 


1

















 


(2)                                 the excess of:


 


(a)                                 the present value at such redemption date of (i) the
redemption price of the Dollar Notes at August 1, 2012 (such redemption
price being set forth in the table appearing in Section 3.07(c)) plus (ii) all
required interest payments due on the Dollar Notes through August 1, 2012
(excluding accrued but unpaid interest to the redemption date), computed using
a discount rate equal to the Treasury Rate as of such redemption date plus 50
basis points; over


 


(b)                                 the principal amount of the Dollar Note; and


 


in
the case of the Euro Notes, the greater of:


 


(1)                                 1.0% of the principal amount of the Euro Notes; or


 


(2)                                 the excess of:


 


(a)                                 the present value at such redemption date of (i) the
redemption price of the Euro Notes at August 1, 2012, (such redemption
price being set forth in the table appearing in Section 3.07(c) plus (ii) all
required interest payments due on the Euro Notes through August 1, 2012
(excluding accrued but unpaid interest to the redemption date), computed using
a discount rate equal to the Bund Rate as of such redemption date plus 50 basis
points; over


 


(b)                                 the principal amount of the Euro Notes.


 


“Applicable
Procedures” means, with respect to any transfer or exchange of or
for Book-Entry Interests in any Global Note, the procedures of DTC, Euroclear
and/or Clearstream that apply to such transfer or exchange.


 


“Asset Sale”
means:


 


(1)                                 the sale, lease, conveyance or other disposition of
any assets by the Parent or any of its Restricted Subsidiaries; provided that the sale, lease, conveyance
or other disposition of all or substantially all of the assets of the Parent
and its Restricted Subsidiaries taken as a whole will be governed by the
provisions of this Indenture described in Section 4.14 and Section 5.01
and not by the provisions of Section 4.10; and


 


(2)                                 the issuance of Equity Interests by any Restricted
Subsidiary or the sale by the Parent or any of its Restricted Subsidiaries of
Equity Interests in any of the Restricted Subsidiaries (in each case, other
than directors’ qualifying shares).


 


Notwithstanding the preceding, none of the following
items will be deemed to be an Asset Sale:


 


(1)                                 any single transaction or series of related
transactions that involves assets having a Fair Market Value of less than
US$10.0 million;


 


(2)                                 a transfer of assets or Equity Interests between or
among the Parent and any Restricted Subsidiary;


 


(3)                                 an issuance of Equity Interests by a Restricted
Subsidiary to the Parent or to a Restricted Subsidiary;


 


2

















 


(4)                                 the sale, lease or other transfer of inventory,
timber, trading stock or other assets in the ordinary course of business and
any sale or other disposition of damaged, worn-out or obsolete assets or assets
that are no longer useful in the conduct of the business of the Parent and its
Restricted Subsidiaries;


 


(5)                                 licenses and sublicenses by the Parent or any of its
Restricted Subsidiaries in the ordinary course of business;


 


(6)                                 any surrender or waiver of contract rights or
settlement, release, recovery on or surrender of contract, tort or other claims
in the ordinary course of business;


 


(7)                                 the granting of Liens not prohibited by Section 4.12;


 


(8)                                 the sale or other disposition of cash or Cash
Equivalents;


 


(9)                                 a Restricted Payment that does not violate Section 4.07,
a Permitted Investment or any transaction specifically excluded from the
definition of Restricted Payment;


 


(10)                          the disposition of receivables in connection with the
compromise, settlement or collection thereof in the ordinary course of business
or in bankruptcy or similar proceedings and exclusive of factoring or similar
arrangements;


 


(11)                          the foreclosure, condemnation or any similar action
with respect to any property or other assets or a surrender or waiver of
contract rights or the settlement, release or surrender of contract, tort or
other claims of any kind;


 


(12)                          the lease or license in respect of land to a trading
counterparty to whom the Parent or Restricted Subsidiary, as applicable,
provides services on that land in the ordinary course of its trading;


 


(13)                          the disposition of assets to a Person who is providing
services (the provision of which have been or are to be outsourced by the
Parent or any Restricted Subsidiary to such Person) related to such assets;


 


(14)                          any sale, transfer, lease or other disposition of any
assets or rights of a South African Restricted Subsidiary in connection with
the BBBEE Act of up to €50.0 million; provided
that any cash or Cash Equivalents received must be applied in accordance with Section 4.10;


 


(15)                          any sale, transfer or other disposition of
Securitization Assets in connection with any Qualified Securitization Financing;


 


(16)                          any sale, transfer, lease, exchange or other
disposition of timberlands and other timber assets in southern Africa; provided that any cash or Cash Equivalents
received must be applied in accordance with Section 4.10;


 


(17)                          any disposition of assets, property or rights as
contemplated by the Master Business and Share Sale and Purchase Agreement,
including any disposition of the Kangas real property; provided that  any cash or Cash Equivalents received must be applied in
accordance with Section 4.10;


 


(18)                          any disposition of assets or property in connection
with claims under The Restitution of Land Rights Act, including any amendment,
supplement, replacement or successor thereto, or laws or regulations of a
similar or related nature; provided
that any cash or Cash Equivalents received must be applied in accordance with Section 4.10;


 


3

















 


(19)                          any sale, transfer, lease, exchange or other
disposition (including pursuant to a derivative transaction) of carbon credits;
provided that (a) clause (i) of
Section 4.10(a) is, at the time of such transaction or at the time of
payment or payments, satisfied and (b) any cash or Cash Equivalents
received must be applied in accordance with Section 4.10; and


 


(20)                          any sale that is a result of a compulsorily or
involuntary acquisition by any governmental authority; provided that any cash or Cash Equivalents
received must be applied in accordance with Section 4.10.


 


“Authentication
Order” means a written order from the Issuer signed by one duly
authorized Director of the Issuer and delivered to the Trustee.


 


“Bank Austria
Facility” means the US$38 million term loan facility agreement dated
August 29, 2005 among SPH, as borrower, the Parent, Sappi International SA
and Sappi Trading Pulp AG, as original guarantors, and Bank Austria
Creditanstalt AG, as arranger, agent and original lender, as in effect on the
Issue Date.


 


“Bankruptcy Law”
means (a) Title 11 of the U.S. Code or (b) any other law of the
United States (or any political subdivision thereof), Austria (or any political
subdivision thereof), Belgium (or any political subdivision thereof), England
(or any political subdivision thereof), Finland (or any political subdivision
thereof), Germany (or any political subdivision thereof), Hong Kong (or any
political subdivision thereof), South Africa (or any political subdivision
thereof), The Netherlands (or any political subdivision thereof) or the laws of
any other jurisdiction or any political subdivision thereof relating to bankruptcy,
insolvency, receivership, winding up, liquidation, reorganization or relief of
debtors.


 


“BBBEE Act”
means the Broad Based Black Empowerment Economic Act (No. 53 of 2003),
including any amendment, supplement, replacement or successor thereto, and any
legislation or regulation of a similar or related nature adopted in The
Republic of South Africa.


 


“Beneficial Owner”
has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5
under the U.S. Exchange Act, except that in calculating the beneficial
ownership of any particular “person” (as that term is used in Section 13(d)(3) of
the U.S. Exchange Act), such “person” will be deemed to have beneficial
ownership of all securities that such “person” has the right to acquire by
conversion or exercise of other securities, whether such right is currently
exercisable or is exercisable only after the passage of time.  The terms “Beneficially Owns” and “Beneficially
Owned” have a corresponding meaning.


 


“Board of Directors”
means:


 


(1)                                 with respect to a corporation, the board of directors
of the corporation or any committee thereof duly authorized to act on behalf of
such board;


 


(2)                                 with respect to a partnership, the board of directors
of the general partner of the partnership;


 


(3)                                 with respect to a limited liability company, the
managing member or members or any controlling committee of managing members
thereof; and


 


(4)                                 with respect to any other Person, the board or
committee of such Person serving a similar function.


 


“Book-Entry
Interest” means one or more Dollar Book-Entry Interests or Euro
Book-Entry Interests.


 


4

















 


“Bund Rate”
means, as of any redemption date, the rate per annum equal to the equivalent
yield to maturity as of such redemption date of the Comparable German Bund
Issue, assuming a price for the Comparable German Bund Issue (expressed as a
percentage of its principal amount) equal to the Comparable German Bund Price
for such relevant date, where:


 


(1)                                 “Comparable German
Bund Issue” means the German Bundesanleihe security selected by any
Reference German Bund Dealer as having a fixed maturity most nearly equal to
the period from such redemption date to August 1, 2012, and that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of euro denominated corporate debt securities
in a principal amount approximately equal to the then outstanding principal
amount of the Notes and of a maturity most nearly equal to August 1, 2012,
provided, however, that, if the period from such
redemption date to August 1, 2012 is less than one year, a fixed maturity
of one year shall be used;


 


(2)                                 “Comparable German
Bund Price” means, with respect to any relevant date, the average of
all Reference German Bund Dealer Quotations for such date (which, in any event,
must include at least two such quotations), after excluding the highest and
lowest such Reference German Bund Dealer Quotations, or if the Issuer obtains
fewer than four such Reference German Bund Dealer Quotations, the average of
all such quotations;


 


(3)                                 “Reference German
Bund Dealer” means any dealer of German Bundesanleihe securities
appointed by the Issuer in good faith; and


 


(4)                                 “Reference German
Bund Dealer Quotations” means, with respect to each Reference German
Bund Dealer and any relevant date, the average as determined by the Issuer of
the bid and offered prices for the Comparable German Bund Issue (expressed in
each case as a percentage of its principal amount) quoted in writing to the Issuer
by such Reference German Bund Dealer at 3:30 p.m. Frankfurt, Germany time
on the third Business Day preceding the relevant date.


 


“Business Day”
means a day other than a Saturday, Sunday or other day on which banking
institutions in Johannesburg, London, Luxembourg, New York or Vienna or a place
of payment under this Indenture are authorized or required by law to close.


 


“Capital Lease
Obligation” means, at the time any determination is to be made, the
amount of the liability in respect of a capital lease that would at that time
be required to be capitalized on a balance sheet (excluding the footnotes
thereto) prepared in accordance with IFRS, and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be prepaid by the
lessee without payment of a penalty.


 


“Capital Stock”
means:


 


(1)                                 in the case of a corporation, corporate stock;


 


(2)                                 in the case of an association or business entity, any
and all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;


 


(3)                                 in the case of a partnership or limited liability
company, partnership interests (whether general or limited) or membership
interests; and


 


(4)                                 any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person, but 


 


5

















 


excluding from all of the foregoing any debt
securities convertible into Capital Stock, whether or not such debt securities
include any right of participation with Capital Stock.


 


“Cash Equivalents”
means:


 


(1)                                 direct obligations (or certificates representing an
interest in such obligations) issued by, or unconditionally guaranteed by, the
government of a member state of the European Union, the United States of
America, South Africa, Switzerland or Canada (including, in each case, any
agency or instrumentality thereof), as the case may be, the payment of which is
backed by the full faith and credit of the relevant member state of the
European Union or the United States of America, South Africa, Switzerland or
Canada, as the case may be, and which are not callable or redeemable at the Parent’s
option;


 


(2)                                 overnight bank deposits, time deposit accounts,
certificates of deposit, banker’s acceptances and money market deposits with
maturities (and similar instruments) of 12 months or less from the date of
acquisition issued by a bank or trust company which is organized under, or
authorized to operate as a bank or trust company under, the laws of a member
state of the European Union or of the United States of America or any state
thereof, South Africa, Switzerland or Canada; provided
that such bank or trust company has capital, surplus and undivided
profits aggregating in excess of €250 million (or the foreign currency
equivalent thereof as of the date of such investment) and whose long-term debt
is rated “A-3” or higher by Moody’s or “A-” or higher by S&P or the
equivalent rating category of another internationally recognized rating agency;


 


(3)                                 repurchase obligations with a term of not more than 30
days for underlying securities of the types described in clauses (1) and (2) above
entered into with any financial institution meeting the qualifications
specified in clause (2) above;


 


(4)                                 commercial paper having one of the two highest ratings
obtainable from Moody’s or S&P and, in each case, maturing within one year
after the date of acquisition; and


 


(5)                                 money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (1) through (4) of
this definition.


 


“Change of Control”
means the occurrence of any of the following:


 


(1)                                 the direct or indirect sale, lease, transfer,
conveyance or other disposition (other than by way of merger or consolidation),
in one or a series of related transactions, of all or substantially all of the
properties or assets of the Parent and its Restricted Subsidiaries taken as a
whole to any Person (including any “person” (as that term is used in Section 13(d)(3) of
the U.S. Exchange Act));


 


(2)                                 the adoption of a plan relating to the liquidation or
dissolution of the Parent;


 


(3)                                 the consummation of any transaction (including,
without limitation, any merger or consolidation), the result of which is that
any Person (including any “person” as defined above) becomes the Beneficial
Owner, directly or indirectly, of more than 50% of the Voting Stock of the
Parent, measured by voting power rather than number of shares;


 


(4)                                 the first day on which a majority of the members of
the Board of Directors of the Parent are not Continuing Directors; or


 


6

















 


(5)                                 the Parent consolidates with, or merges with or into,
any Person, or any Person consolidates with, or merges with or into, the Parent,
in any such event pursuant to a transaction in which any of the outstanding
Voting Stock of the Parent or such other Person is converted into or exchanged
for cash, securities or other property, other than any such transaction where
the Voting Stock of the Parent outstanding immediately prior to such
transaction constitutes or is converted into or exchanged for a majority of the
outstanding shares of the Voting Stock of such surviving or transferee Person
(immediately after giving effect to such transaction).


 


“Change of Control
Offer” has the meaning assigned to that term in this Indenture
governing the Notes.


 


“Clearstream”
means Clearstream Banking, société anonyme.


 


“Collateral” means the property and assets
which will secure the Notes and the Note Guarantees as described in the
Offering Memorandum and any other property and assets that become Collateral.


 


“Collateral
Documents” means the security agreements, pledge agreements,
collateral assignments and related agreements, as amended, supplemented,
restated, renewed, refunded, replaced, restructured, repaid, refinanced or
otherwise modified from time to time, creating the security interests in the
Collateral as contemplated by this Indenture.


 


“Commission”
means the U.S. Securities and Exchange Commission.


 


“Common Depositary”
means The Bank of New York Mellon in London.


 


“Completion Date”
means the date on which all Conditions (as defined in the Escrow Agreement)
have been satisfied.


 


“Consolidated
EBITDA” means, with respect to any specified Person for any period,
the Consolidated Net Income of such Person for such period plus the following to the extent deducted
in calculating such Consolidated Net Income, without duplication:


 


(1)                                 provision for taxes based on income or profits of such
Person and its Subsidiaries which are Restricted Subsidiaries for such period; plus


 


(2)                                 the Fixed Charges of such Person and its Subsidiaries
which are Restricted Subsidiaries for such period; plus


 


(3)                                 depreciation, amortization (including amortization of
intangibles but excluding amortization of prepaid cash expenses that were paid
in a prior period) and other non-cash charges and expenses (excluding any such
non-cash charge or expense to the extent that it represents an accrual of or
reserve for cash charges or expenses in any future period or amortization of a
prepaid cash charge or expense that was paid in a prior period) of such Person
and its Subsidiaries which are Restricted Subsidiaries for such period; plus


 


(4)                                 any expenses, charges or other costs related to any
Equity Offering permitted by this Indenture, in each case, as determined in
good faith by the Parent; plus


 


(5)                                 the amount of any minority interest expense consisting
of subsidiary income attributable to minority equity interests of third parties
in any non-wholly owned Restricted Subsidiary in such period or any prior
period, except to the extent of 


 


7

















 


dividends declared or paid on, or other cash payments
in respect of, Equity Interests held by such parties; minus


 


(6)                                 non-cash items increasing such Consolidated Net Income
for such period (other than any non-cash items increasing such Consolidated Net
Income pursuant to clauses (1) through (13) of the definition of
Consolidated Net Income), other than the reversal of a reserve for cash charges
in a future period in the ordinary course of business,


 


in
each case, on a consolidated basis and determined in accordance with IFRS.


 


Notwithstanding the preceding, the provision for taxes
based on the income or profits of, and the depreciation and amortization and
other non-cash expenses of, a Restricted Subsidiary (other than the Issuer or
any Guarantor) shall be added to Consolidated Net Income to compute
Consolidated EBITDA only to the extent (and in the same proportion, including
by reason of minority interests) that the net income (loss) of such Restricted
Subsidiary was included in calculating Consolidated Net Income for the purposes
of this definition and to the extent that a corresponding amount would be permitted
at the date of determination to be dividended to the Parent or SPH by such
Restricted Subsidiary without any direct or indirect consensual restriction
pursuant to the terms of its charter and all agreements or instruments
applicable to that Restricted Subsidiary or its stockholders (other than any
restriction specified in clause (3) of the definition of “Consolidated Net
Income”).


 


“Consolidated Net
Income” means, with respect to any specified Person for any period,
the aggregate of the net income (loss) of such Person and its Subsidiaries
which are Restricted Subsidiaries for such period, on a consolidated basis
(excluding the net income (loss) of any Unrestricted Subsidiary), determined in
accordance with IFRS and without any reduction in respect of preferred stock
dividends; provided that:


 


(1)                                 any goodwill or other intangible asset impairment
charges will be excluded;


 


(2)                                 the net income (loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of accounting
will be included only to the extent of the amount of dividends or similar
distributions paid in cash to the specified Person or a Restricted Subsidiary
which is a Subsidiary of the Person;


 


(3)                                 solely for the purpose of determining the amount available
for Restricted Payments under Section 4.07(a)(vii)(A), any net income
(loss) of any Restricted Subsidiary (other than the Issuer or any Guarantor)
will be excluded if such Subsidiary is subject to restrictions, directly or
indirectly, on the payment of dividends or the making of distributions by such
Restricted Subsidiary, directly or indirectly, to the Parent (or any Guarantor
that holds the Equity Interests of such Restricted Subsidiary, as applicable)
by operation of the terms of such Restricted Subsidiary’s charter or any
agreement, instrument, judgment, decree, order, statute or governmental rule or
regulation applicable to such Restricted Subsidiary or its shareholders other
than (other than (a) restrictions that have been waived or otherwise released,
(b) restrictions pursuant to the Notes or this Indenture, and (c) contractual
restrictions in effect on the Issue Date or the Completion Date with respect to
the Restricted Subsidiary and other restrictions with respect to such
Restricted Subsidiary that taken as a whole, are not materially less favorable
to the Holders of the Notes than such restrictions in effect on the Issue Date
or the Completion Date under the Revolving Credit Facility or OeKB Facility;
except that the Parent’s equity in the net income of any such Restricted
Subsidiary for such period will be included in such Consolidated Net Income up
to the aggregate amount of cash or Cash Equivalents actually distributed or
that could have been distributed by such Restricted Subsidiary during such
period to the Parent or another Restricted Subsidiary as a dividend or other 


 


8

















 


distribution (subject, in the case of a dividend to
another Restricted Subsidiary (other than the Issuer or any Guarantor), to the
limitation contained in this clause); and


 


(4)                                 any net gain (or loss) realized upon the sale or other
disposition of any asset or disposed operations of the Parent or any Restricted
Subsidiaries (including pursuant to any sale leaseback transaction) which is
not sold or otherwise disposed of in the ordinary course of business (as
determined in good faith by the Parent) or in connection with the sale or
disposition of securities will be excluded;


 


(5)                                 any extraordinary, exceptional or unusual gain, loss
or charge or any profit or loss on the disposal of property, investments and
businesses, asset impairments, financial impacts of natural disasters
(including fire, flood and storm and related events) and non-cash gains or
losses on the price fair value adjustment of plantations (net of tax effects),
or any charges or reserves in respect of any restructuring, redundancy,
integration or severance or any expenses, charges, reserves or other costs
related to the acquisitions, the Refinancing or any BBBEE Act transaction will
be excluded;


 


(6)                                 any non-cash compensation charge or expense arising
from any grant of stock, stock options or other equity-based awards will be
excluded;


 


(7)                                 all deferred financing costs written off and premium
paid or other expenses incurred directly in connection with any early
extinguishment of Indebtedness and any net gain (loss) from any write-off or
forgiveness of Indebtedness will be excluded;


 


(8)                                 any one time non-cash charges or any increases in
amortization or depreciation resulting from purchase accounting, in each case,
in relation to the Acquisition or any acquisition of another Person or business
or resulting from any reorganization or restructuring involving the Parent or
its Subsidiaries will be excluded;


 


(9)                                 any unrealized gains or losses in respect of Hedging
Obligations or any ineffectiveness recognized in earnings related to qualifying
hedge transactions or the fair value or changes therein recognized in earnings
for derivatives that do not qualify as hedge transactions, in each case, in
respect of Hedging Obligations will be excluded;


 


(10)                          any unrealized foreign currency transaction gains or
losses in respect of Indebtedness of any Person denominated in a currency other
than the functional currency of such Person and any unrealized foreign exchange
gains or losses relating to translation of assets and liabilities denominated
in foreign currencies will be excluded;


 


(11)                          any unrealized foreign currency translation or
transaction gains or losses in respect of Indebtedness or other obligations of
the Parent or any Restricted Subsidiary owing to the Parent or any Restricted
Subsidiary will be excluded;


 


(12)                          any cash payments to the Parent or any Restricted
Subsidiary in respect of (i) carbon credit sales, (ii) alternative
fuel tax credits or sales or (iii) programs of a similar or related nature
will be included; and


 


(13)                          the cumulative effect of a change in accounting
principles will be excluded.


 


“Consolidated
Senior Secured Leverage” means, as of any date of determination, the
sum of the total amount of Senior Secured Indebtedness of the Parent and its
Restricted Subsidiaries on a consolidated basis.


 


9

















 


“Consolidated
Senior Secured Leverage Ratio” means as of any date of
determination, the ratio of (a) the Consolidated Senior Secured Leverage
of the Parent on such date to (b) the Consolidated EBITDA of the Parent
for the four most recent full fiscal quarters ending immediately prior to such
date.  For purposes of calculating the
Consolidated EBITDA for such period:


 


(1)                                 acquisitions that have been made by the specified
Person or any of its Subsidiaries which are Restricted Subsidiaries, including
through mergers or consolidations, or any Person or any of its Subsidiaries which
are Restricted Subsidiaries, and including all related financing transactions
and including increases in ownership of Subsidiaries which are Restricted
Subsidiaries, during the four-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date, or that are to be
made on the Calculation Date, will be given pro
forma effect (as determined in good faith by a responsible
accounting or financial officer of SPH or the Parent and may include
anticipated expense and cost reduction synergies) as if they had occurred on
the first day of the four-quarter reference period;


 


(2)                                 the Consolidated EBITDA attributable to discontinued
operations, as determined in accordance with IFRS, and operations or businesses
(and ownership interests therein) disposed of on or prior to the Calculation
Date (including transactions giving rise to the need to calculate such
Consolidated Senior Secured Leverage Ratio), will be excluded;


 


(3)                                 any Person that is a Restricted Subsidiary on the Calculation
Date will be deemed to have been a Restricted Subsidiary at all times during
such four-quarter period; and


 


(4)                                 any Person that is not a Restricted Subsidiary on the
Calculation Date will be deemed not to have been a Restricted Subsidiary at any
time during such four-quarter period.


 


For purposes of this definition, whenever pro forma effect is to be given to a
transaction, the pro forma
calculation shall be determined in good faith by a responsible financial or
accounting officer of SPH or the Parent and may include anticipated expense and
cost reduction synergies.  In determining
the amount of Indebtedness outstanding on any date of determination, pro forma effect will be given to any
incurrence, repayment, repurchase, defeasance or other acquisition, retirement
or discharge or Indebtedness on such date; provided,
however, that the pro forma calculation of Consolidated
Senior Secured Leverage shall not give effect to any Senior Secured
Indebtedness incurred on the Calculation Date to be secured by a Lien pursuant
to clause (1), (2) or (4) of the definition of Permitted Collateral
Liens.


 


“Contingent
Obligations” means, with respect to any Person, any obligation of
such Person guaranteeing in any manner, whether directly or indirectly, any
operating lease, dividend or other obligation that, in each case, does not
constitute Indebtedness (“primary
obligations”) of any other Person (the “primary obligor”), including any obligation of such Person,
whether or not contingent:


 


(1)                                 to purchase any such primary obligation or any
property constituting direct or indirect security therefor;


 


(2)                                 to advance or supply funds:


 


(a)                                 for the purchase or payment of any such primary
obligation; or


 


(b)                                 to maintain the working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor; or


 


10














 


(3)           to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation
against loss in respect thereof.


 


“continuing”
means, with respect to any Default or Event of Default, that such Default or
Event of Default has not been cured or waived.


 


“Continuing
Directors” means, as of any date of determination, any member of the
Board of Directors of the Parent who:


 


(1)           was a member of such Board of Directors on the Issue
Date; or


 


(2)           was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing Directors who were
members of such Board of Directors at the time of such nomination or election.


 


“Credit Facilities”
means, one or more debt facilities, instruments or arrangements incurred by any
Guarantor, Permitted Obligor or any Finance Subsidiary (including the Revolving
Credit Facility, the OeKB Facility, the Bank Austria Facility or commercial
paper facilities and overdraft facilities) with banks, other institutions or
investors, providing for revolving credit loans, term loans, receivables
financing (including through the sale of receivables to such institutions or to
special purpose entities formed to borrow from such institutions against such
receivables), letters of credit, notes or other Indebtedness, in each case, as
amended, restated, modified, renewed, refunded, replaced, restructured,
refinanced, repaid, increased or extended in whole or in part from time to time
(and whether in whole or in part and whether or not with the original
administrative agent and lenders or another administrative agent or agents or
trustees or other banks or institutions and whether provided under the Existing
Revolving Credit Facility, the Existing OeKB Facility or the Bank Austria
Facility or one or more other credit or other agreements, indentures, financing
agreements or otherwise) and in each case including all agreements, instruments
and documents executed and delivered pursuant to or in connection with the
foregoing (including any notes and letters of credit issued pursuant thereto
and any Guarantee and collateral agreement, patent and trademark security
agreement, mortgages or letter of credit applications and other Guarantees,
pledges, agreements, security agreements and collateral documents).  Without limiting the generality of the
foregoing, the term “Credit Facilities” shall include any agreement or
instrument (1) changing the maturity of any Indebtedness incurred
thereunder or contemplated thereby, (2) adding Subsidiaries of the Parent
as additional borrowers, issuers or guarantors thereunder, (3) increasing
the amount of Indebtedness incurred thereunder or available to be borrowed thereunder
or (4) otherwise altering the terms and conditions thereof.


 


“Currency Exchange
Protection Agreement” means, in respect of any Person, any foreign
exchange contract, currency swap agreement, currency option, cap, floor,
ceiling or collar or agreement or other similar agreement or arrangement
designed to protect such Person against fluctuations in currency exchange rates
as to which such Person is a party.


 


“Custodian”
means, with respect to the Dollar Global Notes, The Bank of New York Mellon in
New York, New York, and any and all successors thereto appointed as Custodian
hereunder and having become such pursuant to the applicable provision of this
Indenture.


 


“Default”
means any event that is, or with the passage of time or the giving of notice or
both would be, an Event of Default.


 


“Definitive
Registered Note” means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Sections 2.06, 2.07 and 2.09,
substantially in the form of Exhibit A
hereto and bearing the Private Placement Legend, except that such Note shall
not bear the


 


11

















 


Global
Note Legend and shall not have the “Schedule of Exchanges of Interests in the
Global Note” attached thereto.


 


“Depositary”
means, with respect to the Notes issuable or issued in whole or in part in
global form, DTC, in respect of the Dollar Notes, or Euroclear and Clearstream,
in respect of the Euro Notes, in each case, including any and all successors
thereto appointed as Depositary hereunder and having become such pursuant to
the applicable provision(s) of this Indenture.


 


“Designated
Indebtedness” means any Indebtedness in an aggregate principal
amount of at least US$25 million (including the amount of all undrawn commitments
and matured and contingent reimbursement obligations pursuant to letters of
credit thereunder) that is designated as Designated Indebtedness by delivery to
the Trustee of an Officer’s Certificate.


 


“Director”
means a member of the Board of Directors.


 


“Disqualified Stock”
means any Capital Stock that, by its terms (or by the terms of any security
into which it is convertible, or for which it is exchangeable, in each case, at
the option of the holder of the Capital Stock), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the holder of the
Capital Stock, in whole or in part, on or prior to the date that the Notes
mature.  Notwithstanding the preceding
sentence, any Capital Stock that would constitute Disqualified Stock solely
because the holders of the Capital Stock have the right to require the issuer
thereof to repurchase such Capital Stock upon the occurrence of a Change of
Control or an Asset Sale will not constitute Disqualified Stock if the terms of
such Capital Stock provide that the issuer thereof may not repurchase or redeem
any such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with Section 4.07. 
For purposes hereof, the amount of Disqualified Stock which does not
have a fixed repurchase price shall be calculated in accordance with the terms
of such Disqualified Stock as if such Disqualified Stock were purchased on any
date on which Indebtedness shall be required to be determined pursuant to this
Indenture, and if such price is based upon, or measured by, the Fair Market
Value of such Disqualified Stock, such Fair Market Value to be determined as
set forth herein.


 


“dollar”,
“US$” or “$” means the lawful
currency of the United States of America.


 


“Dollar 144A Global
Note” means a Global Note bearing the Global Note Legend and the
Private Placement Legend deposited with the Custodian and registered in the
name of Cede & Co., as nominee for DTC, that will be issued in an
initial amount equal to the principal amount of the Dollar Notes resold in
reliance on Rule 144A.


 


“Dollar Book-Entry
Interest” means a beneficial interest in a Dollar Global Note held
by or through a Participant.


 


“Dollar Definitive
Registered Note” means a Definitive Registered Note bearing the
Private Placement Legend in a minimum principal amount at maturity of $100,000
and integral multiples of $1,000 above $100,000.


 


“Dollar Equivalent”
means, with respect to any monetary amount in a currency other than dollar, at
any time of determination thereof, the amount of dollar obtained by converting
such currency other than dollar involved in such computation into dollar at the
spot rate for the purchase of dollar with the applicable currency other than
dollar as published in the Financial Times in the “Currency Rates” section (or,
if the Financial Times is no longer published, or if such information is no
longer available in the Financial Times, such source as may be selected in good
faith by the Parent) on the date of such determination.  Except as expressly provided otherwise,
whenever it is necessary to determine whether the Issuer, the Parent or any of
its Restricted Subsidiaries have complied with any covenant or other provision
in this Indenture or if there has occurred an Event of Default and an


 


12

















 


amount
is expressed in a currency other than dollar, such amount will be treated as
the Dollar Equivalent determined as of the date such amount is initially
determined in such non-dollar currency.


 


“Dollar Global Note”
means the Dollar 144A Global Note and the Dollar Regulation S Global Note.


 


“Dollar Notes”
means the Dollar Global Notes and the Dollar Definitive Registered Notes.


 


“Dollar Regulation
S Global Note” means a Dollar Global Note bearing the Global Note
Legend and the Private Placement Legend and deposited with the Custodian and
registered in the name of Cede & Co., as nominee for DTC, that will be
issued in an initial amount equal to the principal amount of the Dollar Notes
resold in reliance on Regulation S.


 


“DTC”
means The Depository Trust Company, a limited-purpose trust company under New
York law.


 


“Equity Interests”
means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or
exchangeable for, Capital Stock).


 


“Equity Offering”
means a public or private sale either (1) of Equity Interests of the
Parent by the Parent (other than Disqualified Stock and other than offerings
registered on Form S-8 (or any successor form) under the Securities Act or
any similar offering in other jurisdictions) or (2) of Equity Interests of
a direct or indirect parent entity of the Parent to the extent that the net proceeds
therefrom are contributed to the equity capital of the Parent or any of its
restricted Subsidiaries.


 


“Escrow Agreement”
means the Escrow and Security Agreement between the Issuer, the Trustee and JP
Morgan Bank N.A., as escrow agent, to be entered into on the Issue Date in
respect of the deposit of the proceeds of the Notes in the accounts described
therein.


 


“Escrow Release
Date” means the date the escrow property is released to the Issuer
in accordance with Section 1.4(c) of the Escrow Agreement.


 


“euro”
or “€” means the currency introduced at the start of the third stage of the
European economic and monetary union pursuant to the Treaty establishing the
European Community, as amended by the Treaty on European Union.


 


“Euro 144A Global
Note” means a Global Note bearing the Global Note Legend and the
Private Placement Legend and deposited with and registered in the name of, The
Bank of New York Depository (Nominees) Limited as nominee for Euroclear and
Clearstream that will be issued in an initial amount equal to the principal
amount of the Euro Notes sold in reliance on Rule 144A.


 


“Euro Book-Entry
Interest” means a beneficial interest in a Euro Global Note held by
or through a Participant.


 


“Euro Definitive
Registered Note” means a Definitive Registered Note bearing the
Private Placement Legend in a principal amount of €50,000 and integral
multiples of €1,000 above €50,000.


 


“Euro Equivalent”
means, with respect to any monetary amount in a currency other than euro, at
any time of determination thereof, the amount of euro obtained by converting
such currency other than euro involved in such computation into euro at the
spot rate for the purchase of euro with the applicable currency other than euro
as published in the Financial Times in the “Currency Rates” section (or, if the
Financial Times is no longer published, or if such information is no longer
available in the Financial Times, such source as may be selected in good faith
by the Parent) on the date of such determination.  Except as expressly provided otherwise,
whenever it is necessary to determine


 


13

















 


whether
the Issuer, the Parent or any of its Restricted Subsidiaries have complied with
any covenant or other provision in this Indenture denominated in euro and an
amount is expressed in a currency other than euro, such amount will be treated
as the Euro Equivalent determined as of the date such amount is initially
determined in such non-euro currency.


 


“Euro Global Note”
means the Euro 144A Global Note and the Euro Regulation S Global Note,
collectively.


 


“Euro MTF”
means the Euro MTF, the alternative market of the Luxembourg Stock Exchange.


 


“Euro Notes”
means the Euro Global Notes and the Euro Definitive Registered Notes,
collectively.


 


“Euro Regulation S
Global Note” means a Global Note bearing the Global Note Legend and
the Private Placement Legend and deposited with or on behalf of and registered
in the name The Bank of New York Depository (Nominees) Limited as nominee for
Euroclear and Clearstream that will be issued in an initial amount equal to the
principal amount of the Euro Notes initially resold in reliance on Regulation
S.


 


“Euroclear”
means Euroclear Bank, SA/NV, as operator of the Euroclear system.


 


“European
Government Obligations” means direct obligations of, or obligations
guaranteed by, a member state of the European Union, and the payment for which
such member state of the European Union pledges its full faith and credit.


 


“European Union”
means the European Union, including any country which is as of the Issue Date,
or becomes after the Issue Date, a member of the European Union.


 


“Existing OeKB
Facility” means the €500,106,406 facility agreement dated May 7,
2003 among SPH, as borrower, Sappi International SA, as original guarantor, the
Parent and Sappi Trading Pulp AG, as further guarantors, Bank Austria
Creditanstalt AG, as mandated lead arranger and agent, and the financial
institutions listed therein, as lenders, as amended on November 18, 2005,
and as otherwise in effect on the Issue Date.


 


“Existing Revolving
Credit Facility” means the €600 million credit agreement dated June 29,
2005 among SPH, Sappi International SA and Trenfor Trading AG, as original
borrowers, the Parent, SPH, Sappi International SA and Trenfor Trading AG, as
original guarantors, BNP Paribas, J.P. Morgan plc and SG Corporate &
Investment Banking, as mandated lead arrangers, the financial institutions
listed therein, as original lenders, and BNP Paribas as agent of the lenders,
as amended on September 11, 2006, and as otherwise in effect on the Issue
Date.


 


“Fair Market Value”
means the value that would be paid by a willing buyer to an unaffiliated
willing seller in a transaction not involving distress of either party,
determined in good faith by the Parent’s Chief Executive Officer, Chief
Financial Officer or responsible accounting or financial officer of the Parent
or SPH.


 


“Finance Subsidiary”
means a wholly owned subsidiary that is formed for the purpose of borrowing
funds or issuing securities and lending the proceeds to a Guarantor and that
conducts no business other than as may be reasonably incidental to, or related
to, the foregoing.


 


“Fixed Charge
Coverage Ratio” means with respect to any specified Person for any
period, the ratio of the Consolidated EBITDA of such Person for such period to
the Fixed Charges of such Person for such period.  In the event that the specified Person or any
of its Subsidiaries which are Restricted Subsidiaries incurs, assumes,
guarantees, repays, repurchases, redeems, defeases or


 


14

















 


otherwise
discharges any Indebtedness or issues, repurchases or redeems preferred stock
subsequent to the commencement of the period for which the Fixed Charge
Coverage Ratio is being calculated and on or prior to the date on which the
event for which the calculation of the Fixed Charge Coverage Ratio is made (the
“Calculation Date”), then the
Fixed Charge Coverage Ratio will be calculated giving pro forma effect (as determined in good
faith by a responsible accounting or financial officer of SPH or the Parent) to
such incurrence, assumption, guarantee, repayment, repurchase, redemption,
defeasance or other discharge of Indebtedness, or such issuance, repurchase or
redemption of preferred stock, and the use of the proceeds therefrom, as if the
same had occurred at the beginning of the applicable four-quarter reference
period; provided, however, that the pro forma calculation of Fixed Charges
shall not give effect to (i) any Indebtedness incurred on the Calculation
Date pursuant to Section 4.09(b) or (ii) the discharge on the
Calculation Date of any Indebtedness to the extent that such discharge results
from the proceeds incurred pursuant to Section 4.09(b).


 


In addition, for purposes of calculating the Fixed
Charge Coverage Ratio:


 


(1)           acquisitions that have been made by the specified
Person or any of its Subsidiaries which are Restricted Subsidiaries, including
through mergers or consolidations, or any Person or any of its Subsidiaries
which are Restricted Subsidiaries acquired by the specified Person or any of
its Subsidiaries which are Restricted Subsidiaries, and including all related
financing transactions and including increases in ownership of Subsidiaries
which are Restricted Subsidiaries, during the four-quarter reference period or
subsequent to such reference period and on or prior to the Calculation Date, or
that are to be made on the Calculation Date, will be given pro forma effect (as
determined in good faith by a responsible accounting or financial officer of
SPH or the Parent and may include anticipated expense and cost reduction
synergies) as if they had occurred on the first day of the four-quarter
reference period;


 


(2)           the Consolidated EBITDA attributable to discontinued
operations, as determined in accordance with IFRS, and operations or businesses
(and ownership interests therein) disposed of prior to the Calculation Date,
will be excluded;


 


(3)           the Fixed Charges attributable to discontinued
operations, as determined in accordance with IFRS, and operations or businesses
(and ownership interests therein) disposed of prior to the Calculation Date,
will be excluded, but only to the extent that the obligations giving rise to
such Fixed Charges will not be obligations of the specified Person or any of
its Subsidiaries which are Restricted Subsidiaries following the Calculation
Date;


 


(4)           any Person that is a Restricted Subsidiary on the
Calculation Date will be deemed to have been a Restricted Subsidiary at all
times during such four-quarter period;


 


(5)           any Person that is not a Restricted Subsidiary on the
Calculation Date will be deemed not to have been a Restricted Subsidiary at any
time during such four-quarter period; and


 


(6)           if any Indebtedness bears a floating rate of interest,
the interest expense on such Indebtedness will be calculated as if the rate in
effect on the Calculation Date had been the applicable rate for the entire
period (taking into account any Hedging Obligation applicable to such
Indebtedness if such Hedging Obligation has a remaining term as at the
Calculation Date in excess of 12 months, or, if shorter, at least equal to the
remaining term of such Indebtedness).


 


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


 


15

















 


(1)           the consolidated interest expense (net of interest
income) of such Person and its Subsidiaries which are Restricted Subsidiaries
for such period, whether paid or accrued, including, without limitation,
amortization of debt discount (but not debt issuance costs), non-cash interest
payments, the interest component of deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations,
commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers’ acceptance financings; plus


 


(2)           the consolidated interest expense of such Person and
its Subsidiaries which are Restricted Subsidiaries that was capitalized during
such period; plus


 


(3)           any interest on Indebtedness of another Person that is
guaranteed by such Person or one of its Subsidiaries which are Restricted
Subsidiaries or secured by a Lien on assets of such Person or one of its
Subsidiaries which are Restricted Subsidiaries, to the extent such Guarantee or
Lien is called upon; plus


 


(4)           net payments and receipts (if any) pursuant to
interest rate Hedging Obligations (excluding amortization of fees) with respect
to Indebtedness; plus


 


(5)           the product of (a) all dividends, whether paid or
accrued and whether or not in cash, on any series of preferred stock of any
Restricted Subsidiary, other than dividends on Equity Interests payable to the
Parent or a Restricted Subsidiary, times
(b) a fraction, the numerator of which is one and the denominator of which
is one minus the then current combined national, state and local statutory tax
rate of such Person, expressed as a decimal, as estimated in good faith by a
responsible accounting or financial officer of SPH or the Parent.


 


“Foundation”
means the sole shareholder of the Capital Stock of the Issuer on the Issuer
Date.


 


“Global Note Legend”
means the legend set forth in Section 2.06(f)(ii), which is required to be
placed on all Global Notes issued under this Indenture.


 


“Global Notes”
means, individually and collectively, each of the global notes, substantially
in the form of Exhibit A
hereto, bearing the Private Placement Legend and the Global Note Legend, issued
in accordance with Sections 2.01, 2.06(b), 2.06(d) or 2.06(e).


 


“Guarantee”
means a guarantee other than by endorsement of negotiable instruments for
collection or deposit in the ordinary course of business, of all or any part of
any Indebtedness (whether arising by agreements to keep-well, to take or pay or
to maintain financial statement conditions, pledges of assets or otherwise).


 


“Guarantors”
means the Parent and any Restricted Subsidiary that executes a Note Guarantee
in accordance with the provisions of this Indenture, and their respective
successors and assigns, in each case, until the Note Guarantee of such Person
has been released in accordance with the provisions of this Indenture.


 


“Hedging
Obligations” means, with respect to any specified Person, the
obligations of such Person under:


 


(1)           interest rate swap agreements (whether from fixed to
floating or from floating to fixed), interest rate cap agreements and interest
rate collar agreements;


 


(2)           other agreements or arrangements designed to manage
interest rates or interest rate risk; and


 


16

















 


(3)           other agreements or arrangements designed to protect
such Person against fluctuations in currency exchange rates, including Currency
Exchange Protection Agreements, or commodity prices.


 


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


 


“IFRS” means
International Financial Reporting Standards promulgated by the International
Accounting Standards Board or any Successor board or agency as in effect on the
date of any calculation or determination required hereunder.


 


“Indebtedness”
means, with respect to any specified Person, any indebtedness of such Person
(excluding accrued expenses and trade payables):


 


(1)           in respect of borrowed money;


 


(2)           evidenced by bonds, notes, debentures or similar
instruments for which such Person is responsible or liable;


 


(3)           representing reimbursement obligations in respect of
letters of credit, bankers’ acceptances or similar instruments (except to the
extent such reimbursement obligations relate to trade payables and such
obligations are satisfied within 30 days of incurrence);


 


(4)           representing Capital Lease Obligations;


 


(5)           representing the balance deferred and unpaid of the
purchase price of any property or services due more than one year after such
property is acquired or such services are completed; and


 


(6)           representing any Hedging Obligations;


 


if
and to the extent any of the preceding items (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet
(excluding the footnotes thereto) of the specified Person prepared in
accordance with IFRS.  In addition, the
term “Indebtedness” includes all Indebtedness of others secured by a Lien on
any asset of the specified Person (whether or not such Indebtedness is assumed
by the specified Person) and, to the extent not otherwise included, the
Guarantee by the specified Person of any Indebtedness of any other Person.


 


The term “Indebtedness” shall not include:


 


(1)           any lease of property which would be considered an
operating lease under IFRS;


 


(2)           Contingent Obligations in the ordinary course of
business;


 


(3)           in connection with the purchase by the Parent or any
Restricted Subsidiary of any business, any post-closing payment adjustments to
which the seller may become entitled to the extent such payment is determined
by a final closing balance sheet or such payment depends on the performance of
such business after the closing; or


 


(4)           the avoidance of doubt, any contingent obligations in
respect of workers’ compensation claims, early retirement or termination
obligations, pension fund obligations or contributions or similar claims,
obligations or contributions or social security or wage Taxes.


 


17

















 


“Indenture”
means this Indenture, as it may be amended, modified or supplemented from time
to time.


 


“Indirect
Participant” means a Person who holds a Book-Entry Interest in a
Global Note through a Participant.


 


“Intercreditor
Agreement” means the agreement to be entered into among the Security
Agent, the agent for the OeKB Facility, the agent for the Revolving Credit
Facility, the Trustee and the other parties named therein, as amended from time
to time.


 


“Investment Grade
Status” shall occur when the Notes are rated Baa3 or better by Moody’s
and BBB- or better by S&P (or, if either such entity ceases to rate the
Notes, the equivalent investment grade credit rating from any other “nationally
recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under
the U.S. Exchange Act selected by the Issuer as a replacement agency).


 


“Investments”
means, with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the forms of loans (including
Guarantees or other obligations, but excluding advances or extensions of credit
to customers or suppliers made in the ordinary course of business), advances or
capital contributions (excluding commission, travel and similar advances to
officers and employees made in the ordinary course of business), purchases or
other acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
Investments on a balance sheet (excluding the footnotes) prepared in accordance
with IFRS.  If the Parent or any Restricted
Subsidiary sells or otherwise disposes of any Equity Interests of any direct or
indirect Restricted Subsidiary such that, after giving effect to any such sale
or disposition, such Person is no longer a Restricted Subsidiary, the Parent
will be deemed to have made an Investment on the date of any such sale or
disposition equal to the Fair Market Value of the Parent’s Investments in such
Restricted Subsidiary that were not sold or disposed of in an amount determined
as provided in Section 4.07(c).  The
acquisition by the Parent or any Restricted Subsidiary of a Person that holds
an Investment in a third Person will be deemed to be an Investment by the
Parent or such Restricted Subsidiary in such third Person in an amount equal to
the Fair Market Value of the Investments held by the acquired Person in such
third Person in an amount determined as provided in Section 4.07(c).  Except as otherwise provided in this
Indenture, the amount of an Investment will be determined at the time the
Investment is made and without giving effect to subsequent changes in value.


 


“Issue Date”
means July 29, 2009.


 


“Issuer”
means PE Paper Escrow GmbH until a successor replaces it in accordance with the
provisions of this Indenture, after which, “Issuer” shall mean such successor.


 


“KBC Facility”
means the €25,384,234 credit facility agreement dated November 6, 2003
among Sappi International S.A., Sappi Netherlands B.V., Sappi Lanaken NV, Sappi
Lanaken Press Paper NV and Sappi Belgium Holding B.V., as borrowers, and
KBC Bank, as lender, as amended from time to time.


 


“Lien”
means, with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such asset, whether or not
filed, recorded or otherwise perfected under applicable law, including any
conditional sale or other title retention agreement or any lease in the nature
thereof.


 


“Management
Advances” means loans or advances made to, or Guarantees with
respect to loans or advances made to, directors, officers or employees of any
the Parent or any Restricted Subsidiary:


 


18

















 


(1)           in respect of travel, entertainment or moving related
expenses incurred in the ordinary course of business;


 


(2)           in respect of moving related expenses incurred in
connection with any closing or consolidation of any facility or office; or


 


(3)           in the ordinary course of business and (in the case of
this clause (3)) not exceeding US$5.0 million in the aggregate outstanding
at any time.


 


“Master Business
and Share Sale and Purchase Agreement” means the Master Business and
Share Sale and Purchase Agreement between, among others, M-real Corporation and
Sappi Limited, dated September 29, 2008, as amended from time to time.


 


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


 


“Net Proceeds”
means the aggregate cash proceeds and Cash Equivalents received by the Parent
or any of its Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash or Cash Equivalents received upon the sale or
other disposition of any non-cash consideration received in any Asset Sale),
net of the direct costs relating to such Asset Sale, including, without
limitation, legal, accounting and investment banking fees, and sales
commissions, and any relocation expenses incurred as a result of the Asset
Sale, taxes paid or payable as a result of the Asset Sale, and any reserve for
adjustment or indemnification obligations in respect of the sale price of such
asset or assets established in accordance with IFRS.


 


“Non-Recourse Debt”
means Indebtedness as to which neither the Parent nor any of its Restricted
Subsidiaries (a) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute Indebtedness) or (b) is
directly or indirectly liable as a guarantor or otherwise.


 


“Non-U.S. Person”
means a Person who is not a U.S. Person.


 


“Note Guarantee”
means the Guarantee by each Guarantor of the Issuer’s obligations under this
Indenture and the Notes, executed pursuant to the provisions of this Indenture.


 


“Notes Proceeds
Loan” means the loan or loans made in the form of an offer and
implied acceptance under Austrian law, by the Issuer, as lender to SPH (or any
Guarantor permitted under this Indenture to become the borrower thereunder), as
borrower, in an amount equal to the proceeds from the issuance of the Notes
issued on the Issue Date or any Additional Notes issued from time to time, as
such loan may be amended, supplemented and restated from time to time.


 


“Notes Proceeds
Loan Assignment Agreement” means the security assignment or pledge
relating to the assignment of the rights under the Note Proceeds Loan in favor
of the Security Agent on behalf of the Holders of the Notes, as amended from
time to time in accordance with the terms of this Indenture.


 


“Obligations”
means any principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities or amounts payable under the
documentation governing any Indebtedness.


 


“OeKB Facility”
means the facility agreement for an amount of up to €400.0 million, or effected
through the amendment and restatement of certain existing facility agreements,
to be entered into on or before the Escrow Release Date among SPH, as borrower,
the Parent and certain of the Parent’s Subsidiaries, as guarantors, Bank
Austria Creditanstalt AG, as mandated lead arranger and agent, and certain
financial institutions to be listed therein as lenders, as amended, restated,
supplemented, waived, replaced (whether or not upon termination, and whether
with the original


 


19

















 


lenders
or otherwise), restructured, repaid, refunded, refinanced or otherwise modified
from time to time, including any agreement extending the maturity thereof,
refinancing, replacing or otherwise restructuring all or any portion of the
Indebtedness under such agreement or agreement or any successor or replacement
agreement or agreements or increasing the amount loaned or issued thereunder
(subject to compliance with Section 4.09) or altering the maturity
thereof.


 


“Offering”
means the offering of the Initial Notes by the Issuer.


 


“Offering
Memorandum” means the final Offering Memorandum, dated July 24,
2009, relating to the offer of the Initial Notes.


 


“Officer”
means, with respect to any person, the Chief Executive Officer and the Chief
Financial Officer of the Parent or a responsible accounting or financial
officer of the Parent or the Issuer.


 


“Officer’s
Certificate” means a certificate signed on behalf of either the
Parent or the Issuer by an Officer.


 


“Opinion of Counsel”
means an opinion in writing from and signed by legal counsel that meets the
requirements of Section 13.03 and is reasonably acceptable to the
Trustee.  The counsel may be an employee
of or counsel to the Issuer, the Parent or any Restricted Subsidiary.


 


“outstanding”
means, in relation to the Notes as of any date of determination, all the Notes
issued other than:


 


(1)           Notes which have been redeemed pursuant to this
Indenture;


 


(2)           Notes in respect of which the date for redemption in
accordance with this Indenture has occurred and the redemption moneys including
premium, if any, and all interest and Additional Amounts, if any, payable
thereon have been duly paid to the Trustee or to the Principal Paying Agent in
the manner provided herein (and where appropriate notice to that effect has
been given to the relative Holders) and remain available for payment against
presentation of the relevant Notes;


 


(3)           Notes which have been purchased and cancelled in
accordance with Sections 4.10 or Section 4.14;


 


(4)           mutilated or defaced Notes which have been surrendered
and cancelled and in respect of which replacements have been issued in
accordance with Section 2.07;


 


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


 


(6)           any Global Note to the extent that it shall have been
exchanged for another Global Note or for Definitive Registered Notes pursuant
to its provisions;


 


provided that for each of the following purposes, namely:


 


(1)           the right to vote of any Holders in respect of any
direction, waiver or consent delivered in accordance with the terms of this
Indenture; and


 


(2)           the determination of how many and which Notes are for
the time being outstanding for the purposes of Sections 6.01 through 6.06
(inclusive), 6.11, 7.08 and 9.02.


 


20














 


Notes
(if any) which at such date of determination are held by or on behalf of the
Issuer or any Affiliate of the Issuer shall be deemed not to remain
outstanding, except that, in determining whether the Trustee will be protected
in relying on any such request, demand, authorization, direction, notice,
consent or waiver, only Notes which a Responsible Officer of the Trustee
actually knows to be so owned will be so disregarded.


 


“Parent”
means Sappi Limited, a public company existing under the laws of the Republic
of South Africa.


 


“Participant”
means, with respect to the Depositary, Euroclear or Clearstream, a Person who
has an account with the Depositary, Euroclear or Clearstream, respectively
(and, with respect to DTC, shall include Euroclear and Clearstream).


 


“Permitted Business”
means (a) any businesses, services or activities engaged in by the Parent
or any of the Restricted Subsidiaries on the Issue Date and (b) any
businesses, services and activities engaged in by the Parent or any of the
Restricted Subsidiaries that are related, complementary, incidental, ancillary
or similar to any of the foregoing or are extensions or developments of any
thereof.


 


“Permitted
Collateral Liens” means:


 


(1)                                 Liens on the Collateral to secure the Notes (or the
Note Guarantees) issued on the Issue Date and any Permitted Refinancing
Indebtedness in respect thereof that is Designated Indebtedness, provided that each of the parties thereto
will have entered into the Intercreditor Agreement; and provided further that the Collateral
securing such Indebtedness secures the Notes or the Note Guarantees on a senior
or pari passu basis;


 


(2)                                 Liens on the Collateral to secure Indebtedness under
Credit Facilities that is Designated Indebtedness permitted by clause (1) of
the definition of Permitted Debt, provided that
the Collateral securing such Indebtedness also secures the Notes or the Note
Guarantees on a senior or pari passu basis; provided further that each of the
parties thereto will have entered into the Intercreditor Agreement, and
provided further that of such total amount of Indebtedness permitted to be
secured by Liens on the Collateral under this clause (2), (i) €250 million
of such total amount of Indebtedness can be used only to renew, refund,
refinance, replace, exchange, defease or discharge Indebtedness existing on the
Issue Date which matures prior to the maturity of the Notes (which amount shall
not be deemed to be utilized or reduced by the repayment after the Issue Date
of the Existing Revolving Credit Facility, the Existing OeKB Facility or the
Bank Austria Facility) and (ii) the remaining amount of such Indebtedness
can be used for any other purpose;


 


(3)                                 Liens on the Collateral to secure Indebtedness of the
Issuer or a Guarantor that is Designated Indebtedness; provided that on the date of such
incurrence and after giving pro forma
effect thereto the Consolidated Senior Secured Leverage Ratio would have been
no more than 2.0 to 1.0; provided further
that the Collateral securing such Indebtedness secures the Notes on
a senior or pari passu basis; and
provided further that each of the
parties thereto will have entered into the Intercreditor Agreement;


 


(4)                                 Liens on the Collateral securing the Parent’s or any
Restricted Subsidiary’s obligations under Hedging Obligations other than
Hedging Obligations in respect of commodity prices permitted by Section 4.09(b)(viii),
provided that each of the parties
thereto will have entered into the Intercreditor Agreement;


 


21

















 


(5)                                 Liens on the Collateral in respect of the Vendor Loan
Note, but excluding Liens on the Collateral in respect of any Indebtedness
issued in exchange for, or the proceeds of which are used to renew, refund,
refinance, replace, exchange, defease or discharge the Vendor Loan Note; and provided further, that, in respect of the
Vendor Loan Note, the assets and properties securing the Vendor Loan Note also
secure the Notes or the Notes Guarantees on a senior or pari passu basis; and provided further, that that the parties
thereto will have entered into the Intercreditor Agreement;


 


(6)                                 Liens on the Collateral that are described in one or
more of clauses (4), (5) (provided
that such Lien will extend only to such property, plant or equipment or other
property, and only if such property, plant or equipment or other property would
be of a category of assets included in the Collateral), (6), (7), (8), (9),
(18), (19), (22), and (23) of the definition of “Permitted Liens”; and


 


(7)                                 any extension, renewal or replacement, in whole or in
part, of any Lien described in the foregoing clauses (1) through (3) above,
provided that any such extension,
renewal or replacement will be no more restrictive in any material respect than
the Lien so extended, renewed or replaced and will not extend in any material
respect to any additional property or assets and the Collateral securing such
Lien secures the Notes or the Note Guarantees on a pari passu basis;


 


provided that, in the case of each of clauses (1), (2),
(3) and (7) the assets and properties securing Indebtedness incurred
under the Revolving Credit Facility and the OeKB Facility also secure the Notes
and the Notes Guarantees on a senior or pari
passu basis; and provided
further, that to the extent the Revolving Credit Facility or the
OeKB Facility requires the Parent or any Subsidiary to grant security in
respect of the shares of a Guarantor; no such security shall be required if
such security could be reasonably expected to give rise to or result in:  (A) personal liability for the officers,
directors or shareholders of such Restricted Subsidiary, (B) any violation
of applicable law that cannot be avoided or otherwise prevented through
measures reasonably available to such Restricted Subsidiary or (C) any
significant cost, expense, liability or obligation (including with respect of
any Taxes) other than reasonable out-of-pocket expenses and other than
reasonable expenses incurred in connection with any governmental or regulatory
filings required as a result of, or any measures pursuant to clause (B) undertaken
in connection with such Lien, which cannot be avoided through measures
reasonably available to the Restricted Subsidiary.


 


“Permitted
Investments” means:


 


(1)                                 any Investment in the Parent or in a Restricted
Subsidiary; provided that any
Investment in the form of cash by SPH or any of its Restricted Subsidiaries
directly in a South African Restricted Subsidiary must be made in the form of
intercompany Indebtedness and the receivable under such Indebtedness must be
assigned to secure the obligations under the Notes and may secure the
obligations under other Indebtedness that is required to be secured by such
Lien on a pari passu or junior
basis;


 


(2)                                 any Investment in cash and Cash Equivalents;


 


(3)                                 any Investment by the Parent or any Restricted
Subsidiary in a Person, if as a result of such Investment:


 


(a)                                 such Person becomes a Restricted Subsidiary; or


 


(b)                                 such Person is merged, consolidated or amalgamated
with or into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Parent or a Restricted Subsidiary;


 


22

















 


(4)                                 any Investment made as a result of the receipt of
non-cash consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.10;


 


(5)                                 any acquisition of assets or Capital Stock solely in
exchange for the issuance of Equity Interests (other than Disqualified Stock)
of the Parent;


 


(6)                                 any Investments received in compromise or resolution
of (A) obligations of trade creditors or customers that were incurred in
the ordinary course of business of the Parent or any of its Restricted
Subsidiaries, including pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of any trade creditor or
customer; or (B) litigation, arbitration or other disputes;


 


(7)                                 any Investment in a Securitization Subsidiary or any
Investment by a Securitization Subsidiary in any other Person in connection
with a Qualified Securitization Financing, including Investments of funds held
in accounts permitted or required by the arrangements governing such Qualified
Securitization Financing or any related Indebtedness;


 


(8)                                 Investments in receivables owing to the Parent or any
Restricted Subsidiary created or acquired in the ordinary course of business;


 


(9)                                 Investments represented by Hedging Obligations, which
obligations are permitted by Section 4.09(b)(viii);


 


(10)                          Investments in the Notes, the SPH Bonds, the South
African Notes and any other Indebtedness of the Parent or any Restricted
Subsidiary;


 


(11)                          any Guarantee of Indebtedness permitted to be incurred
by Section 4.09;


 


(12)                          any Investment existing on, or made pursuant to
binding commitments existing on, the Issue Date and any Investment consisting
of an extension, modification or renewal of any Investment existing on, or made
pursuant to a binding commitment existing on, the Issue Date; provided that the amount of any such
Investment may be increased (a) as required by the terms of such
Investment as in existence on the Issue Date or (b) as otherwise permitted
under this Indenture;


 


(13)                          Investments acquired after the Issue Date as a result
of the acquisition by the Parent or any Restricted Subsidiary of another
Person, including by way of a merger, amalgamation or consolidation with or
into the Parent or any of its Restricted Subsidiaries in a transaction that is
not prohibited by Section 5.01 to the extent that such Investments were
not made in contemplation of such acquisition, merger, amalgamation or
consolidation and were in existence on the date of such acquisition, merger,
amalgamation or consolidation;


 


(14)                          Management Advances;


 


(15)                          any Investments in the Jiangxi Chenming Paper Co. Ltd.
joint venture, in an aggregate amount when taken together with all other
Investments made pursuant to this clause (15) after the Issue Date that are at
the time outstanding not to exceed US$30.0 million;


 


(16)                          Investments in consortia, joint ventures and similar
arrangements formed in connection with the BBBEE Act, including the Lereko
Property Consortium transactions in an aggregate amount when taken together
with all other Investments 


 


23

















 


made pursuant to this clause (16) that are at the time
outstanding not to exceed US$50.0 million; and


 


(17)                          other Investments in any Person having an aggregate
Fair Market Value (measured on the date each such Investment was made and
without giving effect to subsequent changes in value), when taken together with
all other Investments made pursuant to this clause (17) that are at the time
outstanding not to exceed the greater of US$200.0 million and 3.0% of
Total Assets, provided, that if
an Investment is made pursuant to this clause in a Person that is not a
Restricted Subsidiary and such Person subsequently becomes a Restricted
Subsidiary or is subsequently designated a Restricted Subsidiary pursuant to Section 4.07,
such Investment, if applicable, shall thereafter be deemed to have been made
pursuant to clause (1) or (3) of the definition of “Permitted
Investments” and not this clause.


 


“Permitted Liens”
means:


 


(1)                                 Liens in favor of the Parent or any of the Restricted
Subsidiaries;


 


(2)                                 Liens on property of a South African Restricted
Subsidiary (other than ordinary shares of Sappi Manufacturing (Proprietary)
Ltd) to secure Indebtedness of South African Restricted Subsidiaries permitted
by Section 4.09;


 


(3)                                 Liens on property (including Capital Stock) of a
Person existing at the time such Person becomes a Restricted Subsidiary or is
merged with or into or consolidated with the Parent or any Restricted
Subsidiary; provided that such
Liens were in existence prior to the contemplation of such Person becoming a
Restricted Subsidiary or such merger or consolidation, were not incurred in
contemplation thereof and do not extend to any assets other than those of the
Person that becomes a Restricted Subsidiary or is merged with or into or
consolidated with the Parent or any Restricted Subsidiary;


 


(4)                                 Liens to secure the performance of statutory obligations,
trade contracts, insurance, surety or appeal bonds, workers compensation
obligations, leases, performance bonds or other obligations of a like nature
incurred in the ordinary course of business (including Liens to secure letters
of credit issued to assure payment of such obligations);


 


(5)                                 Liens to secure Indebtedness permitted by Section 4.09(b)(iv) covering
only the assets acquired with or financed by such Indebtedness;


 


(6)                                 Liens existing on the Issue Date which are in
existence on the Completion Date;


 


(7)                                 Liens for taxes, assessments or governmental charges
or claims that are not yet delinquent or that are being contested in good faith
by appropriate proceedings promptly instituted and diligently concluded;


 


(8)                                 Liens imposed by law, such as carriers’, warehousemen’s,
landlord’s and mechanics’ Liens, in each case, incurred in the ordinary course
of business;


 


(9)                                 survey exceptions, easements or reservations of, or
rights of others for, licenses, rights-of-way, sewers, electric lines,
telegraph and telephone lines and other similar purposes, or zoning or other
restrictions as to the use of real property that were not incurred in
connection with Indebtedness and that do not in the aggregate materially
adversely affect the value of said properties or materially impair their use in
the operation of the business of such Person;


 


24

















 


(10)                          Liens created for the benefit of (or to secure) the
Notes (or the Note Guarantees);


 


(11)                          Liens securing Indebtedness under Hedging Obligations,
which obligations are permitted by Section 4.09(b)(viii);


 


(12)                          Liens to secure any Permitted Refinancing Indebtedness
(excluding Liens to secure Permitted Refinancing Indebtedness initially secured
pursuant to clause (21) of this definition) permitted to be incurred under this
Indenture; provided, however, that:


 


(a)                                 the new Lien is limited to all or part of the same
property and assets that secured or, under the written agreements pursuant to
which the original Lien arose, could secure the original Lien (plus
improvements and accessions to, such property or proceeds or distributions
thereof); and


 


(b)                                 the Indebtedness secured by the new Lien is not
increased to any amount greater than the sum of (x) the outstanding
principal amount, or, if greater, committed amount, of the Indebtedness
renewed, refunded, refinanced, replaced, defeased or discharged with such
Permitted Refinancing Indebtedness and (y) an amount necessary to pay any
fees and expenses, including premiums, related to such renewal, refunding,
refinancing, replacement, defeasance or discharge;


 


(13)                          Liens on insurance policies and proceeds thereof, or
other deposits, to secure insurance premium financings;


 


(14)                          filing of Uniform Commercial Code financing statements
under U.S. state law (or similar filings under applicable jurisdiction) in
connection with operating leases in the ordinary course of business;


 


(15)                          bankers’ Liens, rights of setoff or similar rights and
remedies as to deposit accounts, Liens arising out of judgments or awards not
constituting an Event of Default and notices of lis pendens and associated
rights related to litigation being contested in good faith by appropriate
proceedings and for which adequate reserves have been made;


 


(16)                          Liens on cash, Cash Equivalents or other property
arising in connection with the defeasance, discharge or redemption of
Indebtedness;


 


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


 


(18)                          Leases, licenses, subleases and sublicences of assets
in the ordinary course of business;


 


(19)                          Liens arising out of conditional sale, title
retention, consignment or similar arrangements for the sale of assets entered
into in the ordinary course of business;


 


(20)                          Liens on Securitization Assets and related assets incurred
in connection with any Qualified Securitization Financing;


 


(21)                          Liens incurred by the Parent or any Restricted
Subsidiary with respect to obligations that do not exceed US$100.0 million
at any one time outstanding.


 


25

















 


(22)                          (i) mortgages, liens, security interests,
restrictions, encumbrances or any other matters of record that have been placed
by any developer, landlord or other third party on property over which the
Parent or any Restricted Subsidiary has easement rights or on any real property
leased by the Parent or any Restricted Subsidiary and subordination or similar
agreements relating thereto and (ii) any condemnation or eminent domain
proceedings or compulsory purchase order affecting real property;


 


(23)                          Liens on property or assets under construction (and
related rights) in favor of a contractor or developer or arising from progress
or partial payments by a third party relating to such property or assets;


 


(24)                          Liens securing or arising by reason of any netting or
set-off arrangement entered into in the ordinary course of banking or other
trading activities;


 


(25)                          Liens (including put and call arrangements) on Capital
Stock or other securities of any Unrestricted Subsidiary that secure Indebtedness
of such Unrestricted Subsidiary;


 


(26)                          pledges of goods, the related documents of title
and/or other related documents arising or created in the ordinary course of the
Parent or any Restricted Subsidiary’s business or operations as Liens only for
Indebtedness to a bank or financial institution directly relating to the goods
or documents on or over which the pledge exists;


 


(27)                          Liens over cash paid into an escrow account pursuant
to any purchase price retention arrangement as part of any permitted disposal
by the Parent or a Restricted Subsidiary on condition that the cash paid into
such escrow account in relation to a disposal does not represent more than 15%
of the net proceeds of such disposal;


 


(28)                          limited recourse Liens in respect of the ownership
interests in, or assets owned by, any joint ventures which are not Restricted
Subsidiaries securing obligations of such joint ventures;


 


(29)                          Liens on any proceeds loan made by the Parent or any
Restricted Subsidiary in connection with any future incurrence of Indebtedness
permitted under this Indenture and securing that Indebtedness;


 


(30)                          Liens created on any asset of the Parent or a
Restricted Subsidiary established to hold assets of any stock option plan or
any other management or employee benefit or incentive plan or unit trust of the
Parent or a Restricted Subsidiary securing any loan to finance the acquisition
of such assets;


 


(31)                          Liens over treasury stock of the Parent or a
Restricted Subsidiary purchased or otherwise acquired for value by the Parent
or such Restricted Subsidiary pursuant to a stock buy-back scheme or other
similar plan or arrangement;


 


(32)                          Liens on the Account to secure the Notes;


 


(33)                          Liens on receivables and related assets of the
Acquired Business to secure Indebtedness described in Section 4.09(b)(xxiii);
and


 


(34)                          any extension, renewal, refinancing or replacement, in
whole or in part, of any Lien described in the foregoing clauses (1) through
(33) (but excluding clauses (5), (21), and (23)); provided that any such Lien is limited to all or part of the
same property or assets (plus improvements, accessions, proceeds or dividends
or distributions in respect thereof) that secured (or, under the written
arrangements under which the original Lien arose, could secure) the Indebtedness
being refinanced.


 


26

















 


“Permitted Obligor”
means any Restricted Subsidiary that is an obligor under the Revolving Credit
Facility, the OeKB Facility or any refinancing Indebtedness in respect thereof
that is not required to Guarantee the Notes pursuant to Section 4.16.


 


“Permitted
Refinancing Indebtedness” means any Indebtedness of the Parent or
any of its Restricted Subsidiaries issued in exchange for, or the net proceeds
of which are used to renew, refund, refinance, replace, exchange, defease or
discharge other Indebtedness of the Parent or any of its Restricted
Subsidiaries (other than intercompany Indebtedness (other than any proceeds
loan)); provided that:


 


(1)                                 the aggregate principal amount (or accreted value, if
applicable), or if issued with original issue discount, aggregate issue price)
of such Permitted Refinancing Indebtedness does not exceed the principal amount
(or accreted value, if applicable, or if issued with original issue discount,
aggregate issue price) of the Indebtedness renewed, refunded, refinanced,
replaced, exchanged, defeased or discharged (plus all accrued interest on the
Indebtedness and the amount of all fees and expenses, including premiums,
incurred in connection therewith);


 


(2)                                 such Permitted Refinancing Indebtedness has (a) a
final maturity date that is either (i) no earlier than the final maturity
date of the Indebtedness being renewed, refunded, refinanced, replaced,
exchanged, defeased or discharged or (ii) after the final maturity date of
the Notes and (b) has a Weighted Average Life to Maturity that is equal to
or greater than the Weighted Average Life to Maturity of the Indebtedness being
renewed, refunded, refinanced, replaced, defeased or discharged; provided, however
that only clause (a)(ii) of this paragraph (2) shall apply to any
Permitted Refinancing Indebtedness in respect of the 2032 Notes.


 


(3)                                 if the Indebtedness being renewed, refunded,
refinanced, replaced, defeased or discharged is expressly, contractually,
subordinated in right of payment to the Notes or the Note Guarantees, as the
case may be, such Permitted Refinancing Indebtedness is subordinated in right
of payment to the Notes or the Note Guarantees, as the case may be, on terms at
least as favorable to the holders of Notes or the Note Guarantees, as the case
may be, as those contained in the documentation governing the Indebtedness
being renewed, refunded, refinanced, replaced, exchanged, defeased or
discharged; and


 


(4)                                 if the Issuer or any Guarantor was the obligor on the
Indebtedness being renewed, refunded, refinanced, replaced, defeased or
discharged, such Indebtedness is incurred either by the Issuer, a Finance
Subsidiary or by a Guarantor.


 


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


 


“Private Placement
Legend” means the legend set forth in Section 2.06(f)(i) to
be placed on all Notes issued under this Indenture except where otherwise
permitted by the provisions of this Indenture.


 


“QIB”
means a “qualified institutional buyer” as defined in Rule 144A.


 


“Qualified
Securitization Financing” means any financing pursuant to which the
Parent or any of its Restricted Subsidiaries may sell, convey or otherwise
transfer to any other Person or grant a security interest in, any accounts
receivable (and related assets) in any aggregate principal amount equivalent to
the Fair Market Value of such accounts receivable (and related assets) of the
Parent or any of its Restricted Subsidiaries; provided
that (a) the covenants, events of default and other 


 


27

















 


provisions
applicable to such financing shall be customary for such transactions and shall
be on market terms (as determined in good faith by the Parent’s board of
directors of senior management) at the time such financing is entered into, (b) the
interest rate applicable to such financing shall be a market interest rate (as
determined in good faith by the Parent’s board of directors or senior
management) at the time such financing is entered into and (c) such
financing shall be non recourse to the Parent or any of its Restricted
Subsidiaries except to a limited extent customary for such transactions.


 


“Refinancing”
has the meaning given to such term in the Offering Memorandum.


 


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


 


“Regulation S Definitive Note” means a
Definitive Registered Note sold in reliance on Regulation S.


 


“Regulation S
Global Note” means one or more of the Dollar Regulation S Global
Note and the Euro Regulation S Global Note.


 


“Responsible
Officer,” when used with respect to the Trustee, means any vice
president, assistant vice president, senior trust officer, trust officer or any
other officer within the Corporate Trust department of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.


 


“Restricted
Definitive Note” means a Definitive Registered Note
bearing the Private Placement Legend.


 


“Restricted
Investment” means an Investment other than a Permitted Investment.


 


“Restricted Period”
means the 40-day distribution compliance period, as defined in Regulation S.


 


“Restricted
Subsidiary” means any Subsidiary of the Parent that is not an
Unrestricted Subsidiary.


 


“Revolving Credit
Facility” means the credit agreement for an amount of up to €400.0
million to be entered into on or before the Escrow Release Date among SPH,
Sappi International SA and Sappi Trading Pulp AG, as borrowers, the Parent and
certain of the Parent’s Subsidiaries, as guarantors, and certain financial
institutions, as amended, restated, supplemented, waived, replaced (whether or
not upon termination, and whether with the original lenders or otherwise),
restructured, repaid, refunded, refinanced or otherwise modified from time to
time, including any agreement or indenture extending the maturity thereof,
refinancing, replacing or otherwise restructuring all or any portion of the
Indebtedness under such agreement or agreement or any successor or replacement
agreement or agreements or increasing the amount loaned thereunder (subject to
compliance with Section 4.09 or altering the maturity thereof.


 


“Rule 144A”
means Rule 144A promulgated under the U.S. Securities Act.


 


“Rule 144A
Definitive Note” means a Definitive Registered Note
sold in reliance on Rule 144A.


 


“Rule 144A
Global Note” means a Global Note substantially in the form of Exhibit A hereto bearing the
Global Note Legend and the Private Placement Legend and deposited with or on
behalf of, 


 


28

















 


and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.


 


“Rule 903”
means Rule 903 promulgated under the U.S. Securities Act.


 


“Rule 904”
means Rule 904 promulgated under the U.S. Securities Act.


 


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


 


“Sappi Fine Paper
Securitization” means the Master Agreement, Liquidity Agreement and
Servicing Agreement comprising the receivables securitization programme entered
into by Sappi Lanaken NV, Sappi Deutschland GmbH, Sappi Trading Germany
GmbH, Sappi Papier Holding GmbH (as sellers), Galleon Capital, LLC (as
purchaser), State Street Global Markets, LLC (as program administrator) and
UniCredit Bank Austria AG (as liquidity bank), dated on or about December 19,
2000, as amended from time to time.


 


“Sappi Finland”
means Sappi Finland I Oy.


 


“S.D. Warren
Securitization” means the Second Amended and Restated S.D. Warren
Company Purchase Agreement and Contribution Agreement, Second Amended and
Restated Receivables Purchase Agreement, Amended and Restated Fee Agreement and
Amended and Restated Liquidity Agreement, all dated as of March 29, 2007,
comprising the receivables securitization programme with respect to S.D. Warren
Company, entered into by S.D. Warren Company (as servicer and originator), S.D.
Warren Finance Co. (as seller), Sappi Cloquet LLC, Galleon Capital, LLC (as
purchaser), State Street Global Markets, LLC (as program administrator), State
Street Bank and Trust Company (as liquidity agent and swingline bank) and Bank
Austria Creditanstalt AG (as liquidity bank), as amended from time to time.


 


“Securitization
Assets” means any accounts receivable, inventory, royalty or revenue
streams from sales of inventory subject to a Qualified Securitization
Financing.


 


“Securitization
Fees” means distributions or payments made directly or by means of
discounts with respect to any participation interest issued or sold in
connection with, and other fees paid to a Person that is not the Parent or a
Restricted Subsidiary in connection with any Qualified Securitization
Financing.


 


“Securitization
Repurchase Obligation” means any obligation of a seller of
Securitization Assets in a Qualified Securitization Financing to repurchase
Securitization Assets arising as a result of a breach of a representation,
warranty or covenant or otherwise, including as a result of a receivable or
portion thereof becoming subject to any asserted defense, dispute, off-set or
counterclaim of any kind as a result of any action taken by, any failure to
take action by or any other event relating to the seller.


 


“Securitization
Subsidiary” means a Subsidiary of the Parent (or another Person
formed for the purposes of engaging in a Qualified Securitization Financing in
which the Parent or any Subsidiary of the Parent makes an Investment and to
which the Parent or any Subsidiary of the Parent transfers Securitization
Assets and related assets) which engages in no activities other than in
connection with the financing of Securitization Assets of the Parent or its
Subsidiaries, all proceeds thereof and all rights (contractual and other),
collateral and other assets relating thereto, and any business or activities
incidental or related to such business, and which is designated by the Board of
Directors of the Parent as a Securitization Subsidiary.


 


“Security Agent”
means (i) the security agent for the Collateral named in the Collateral
Documents and (ii) unless the context requires otherwise, the security
agent in respect of the Notes Proceeds Loan.


 


29

















 


“Senior Secured
Indebtedness” means, as of any date of determination, the principal
amount of any Indebtedness for borrowed money that is secured by a Lien.


 


“Significant
Subsidiary” means, at the date of determination, any Restricted
Subsidiary that together with its Subsidiaries which are Restricted
Subsidiaries (i) for the most recent fiscal year, accounted for more than
10% of the consolidated revenues of the Parent or (ii) as of the end of
the most recent fiscal year, was the owner of more than 10% of the consolidated
assets of the Parent.


 


“South African
Notes” means any debt securities issued by the Parent or any South
African Restricted Subsidiary from time to time.


 


“South African
Restricted Subsidiary” means a Restricted Subsidiary that is
organized under the laws of the Republic of South Africa or is a Subsidiary
thereof and is not a Guarantor of the Notes.


 


“SPH”
means Sappi Papier Holding GmbH.


 


“SPH Bonds”
means the SPH Bonds due 2012 and the SPH Bonds due 2032.


 


“SPH Bonds due 2012”
mean the SPH 6.75% Guaranteed Notes due 2012.


 


“SPH Bonds due 2032”
mean the SPH 7.50% Guaranteed Notes due 2032.


 


“Stated Maturity”
means, with respect to any installment of interest or principal on any series
of Indebtedness, the date on which the payment of interest or principal was
scheduled to be paid in the documentation governing such Indebtedness as of the
Issue Date, and will not include any contingent obligations to repay, redeem or
repurchase any such interest or principal prior to the date originally
scheduled for the payment thereof.


 


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


 


(1)                                 any corporation, association or other business entity
of which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency and after giving
effect to any voting agreement or stockholders’ agreement that effectively transfers
voting power) to vote in the election of directors, managers or trustees of the
corporation, association or other business entity is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person (or a combination thereof); and


 


(2)                                 any partnership or limited liability company of which (a) more
than 50% of the capital accounts, distribution rights, total equity and voting
interests or general and limited partnership interests, as applicable, are
owned or controlled, directly or indirectly, by such Person or one or more of
the other Subsidiaries of that Person or a combination thereof, whether in the
form of membership, general, special or limited partnership interests or
otherwise, and (b) such Person or any Subsidiary of such Person is a
controlling general partner or otherwise controls such entity.


 


“Tax”
means any tax, duty, levy, impost, assessment or other governmental charge
(including penalties, interest and any other additional amounts related
thereto, and, for the avoidance of doubt, including any withholding or
deduction for or on account of Tax).  “Taxes” and “Taxation” shall be construed to have corresponding meanings.


 


“Treasury Rate”
means, as of any redemption date, the yield to maturity as of such redemption
date of United States Treasury securities with a constant maturity (as compiled
and published in the most recent Federal Reserve Statistical Release H.15 (519)
that has become publicly 


 


30

















 


available
at least two business days prior to the redemption date (or, if such
Statistical Release is no longer published, any publicly available source of
similar market data)) most nearly equal to the period from the redemption date
to August 1, 2012; provided,
however, that if the period from
the redemption date to August 1, 2012, is less than one year, the weekly
average yield on actually traded United States Treasury securities adjusted to
a constant maturity of one year will be used.


 


“Trustee”
means The Bank of New York Mellon until a successor trustee replaces it in
accordance with the applicable provisions of this Indenture, after which, “Trustee”
shall mean such successor.


 


“Unrestricted
Definitive Note” means a Definitive Registered Note that does not
bear and is not required to bear the Private Placement Legend.


 


“Unrestricted
Subsidiary” means any Subsidiary of the Parent (other than the
Issuer or any successor to the Issuer) that is designated by the Board of
Directors of the Parent or Issuer as an Unrestricted Subsidiary pursuant to a
resolution of the Board of Directors but only to the extent that such
Subsidiary:


 


(1)                                 has no Indebtedness other than Non-Recourse Debt;


 


(2)                                 except as permitted by Section 4.11, is not party
to any agreement, contract, arrangement or understanding with the Parent or any
Restricted Subsidiary unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Parent or such
Restricted Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Parent; and


 


(3)                                 is a Person with respect to which neither the Parent
nor any Restricted Subsidiary has any direct or indirect obligation (a) to
subscribe for additional Equity Interests or (b) to maintain or preserve
such Person’s financial condition or to cause such Person to achieve any
specified levels of operating results.


 


“U.S. Dollars”
or “US$” means and/or refers to the lawful currency of the United States.


 


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


 


“U.S. Government
Securities” means direct obligations of, or obligations guaranteed
by, the United States of America, and the payment for which the United States
pledges its full faith and credit.


 


“U.S. Person”
means a U.S. person as defined in Regulation S.


 


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


 


“Vendor Loan Notes”
means the €220.0 million Guaranteed Unsecured Loan Notes 2008 dated December 31,
2008 issued to M-real Corporation by SPH and initially guaranteed by the
Parent, Sappi International SA and Sappi Trading Pulp AG.


 


“Voting Stock”
of any specified Person as of any date means the Capital Stock of such Person
that is at the time entitled to vote in the election of the Board of Directors
of such Person.


 


“Weighted Average
Life to Maturity” means, when applied to any Indebtedness at any
date, the number of years obtained by dividing:


 


31














 


(1)                                 the sum of the products obtained by multiplying (a) the
amount of each then remaining installment, sinking fund, serial maturity or
other required payments of principal, including payment at final maturity, in
respect of the Indebtedness, by (b) the number of years (calculated to the
nearest one-twelfth) that will elapse between such date and the making of such
payment; by


 


(2)                                 the then outstanding principal amounts of such
Indebtedness.


 


Section 1.02               Other
Definitions.


 


	
  Term

  	
   

  	
  Defined in Section

  
	
   

  	
   

  	
   

  
	
  “Additional
  Amounts”

  	
   

  	
  4.17

  
	
  “Additional
  Notes”

  	
   

  	
  2.12

  
	
  “Affiliate
  Transaction”

  	
   

  	
  4.11

  
	
  “Asset Sale
  Offer”

  	
   

  	
  4.10

  
	
  “Authorized
  Agent”

  	
   

  	
  13.05

  
	
  “Change of
  Control Payment”

  	
   

  	
  4.14

  
	
  “Change of
  Control Payment Date”

  	
   

  	
  4.14

  
	
  “Covenant
  Defeasance”

  	
   

  	
  8.03

  
	
  “Events of Default”

  	
   

  	
  6.01

  
	
  “Excess Proceeds”

  	
   

  	
  4.10

  
	
  “incur”

  	
   

  	
  4.09

  
	
  “Legal
  Defeasance”

  	
   

  	
  8.02

  
	
  “Offer Amount”

  	
   

  	
  3.12

  
	
  “Offer Period”

  	
   

  	
  3.12

  
	
  “Paying Agent”

  	
   

  	
  2.03

  
	
  “Payment Default”

  	
   

  	
  6.01

  
	
  “Permitted Debt”

  	
   

  	
  4.09

  
	
  “Principal Paying
  Agent”

  	
   

  	
  2.03

  
	
  “Purchase Date”

  	
   

  	
  3.12

  
	
  “Register”

  	
   

  	
  2.03

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Restricted
  Payments”

  	
   

  	
  4.07

  
	
  “Suspension
  Period”

  	
   

  	
  4.21

  
	
  “Tax
  Jurisdiction”

  	
   

  	
  4.17

  
	
  “Tax Redemption
  Date”

  	
   

  	
  3.08

  
	
  “Transfer Agent”

  	
   

  	
  2.03

  



 


Section 1.03               [Reserved].


 


Section 1.04               Rules of
Construction.


 


Unless
the context otherwise requires:


 


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


 


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


 


(c)           “or” is not exclusive;


 


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


 


(e)           provisions apply to successive events
and transactions;


 


32

















 


(f)            references to sections of or rules under
the U.S. Securities Act shall be deemed to include substitute, replacement of
successor sections or rules adopted by the Commission from time to time;


 


(g)           all
references to the principal, premium, interest or any other amount payable
pursuant to this Indenture shall be deemed also to refer to any Additional
Amounts which may be payable hereunder in respect of payments of principal,
premium, interest and any other amounts payable pursuant to this Indenture or
any undertakings given in addition thereto or in substitution therefor pursuant
to this Indenture and express reference to the payment of Additional Amounts in
any provisions hereof shall not be construed as excluding Additional Amounts in
those provisions hereof where such express reference is not made;


 


(h)           except
as otherwise provided, whenever an amount is denominated in euro, it shall be
deemed to include the Euro Equivalent amounts denominated in other currencies,
and, whenever an amount is denominated in dollars, it shall be deemed to
include the Dollar Equivalent amounts denominated in other currencies; and


 


(i)            unsecured
or unguaranteed Indebtedness shall not be deemed to be subordinate or junior to
secured Indebtedness or guaranteed Indebtedness merely by virtue of its nature
as unsecured or unguaranteed Indebtedness.


 


ARTICLE 2


THE NOTES


 


Section 2.01               Form and
Dating.


 


(a)           General.


 


The Notes and the
certificates of authentication will be substantially in the form of Exhibit A hereto.  The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage and as provided
herein.  The Issuer shall approve the
form of the Notes and any notation, legend or endorsement thereon.  Each Note will be dated the date of its
authentication.  The terms and provisions
contained in the Notes shall constitute, and are hereby expressly made, a part
of this Indenture and the Issuer, the Guarantors, the Trustee and the Security
Agent, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.  However, to the extent any provision of any
Note conflicts with the express provisions of this Indenture, the provisions of
this Indenture shall govern and be controlling.


 


(b)           Global Notes.


 


Notes issued in
global form will be substantially in the form of Exhibit A hereto (including the Global Note Legend
thereon and a “Schedule of Exchanges of Interests in the Global Note”
substantially in the form of Schedule A
attached thereto).  Each Global Note will
represent such of the outstanding Notes as will be specified therein and each
shall provide that it represents the aggregate principal amount of outstanding
Notes from time to time endorsed thereon and that the aggregate principal
amount of outstanding Notes represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges and redemptions and
purchases and cancellations.  Any
endorsement of a Global Note to reflect the amount of any increase or decrease
in the aggregate principal amount of outstanding Notes represented thereby will
be made by the Trustee or the Custodian or the Common Depositary, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.06.


 


33

















 


(c)           144A Global Notes and Regulation S Global Notes.


 


Dollar Notes sold
within the United States to QIBs pursuant to Rule 144A under the U.S.
Securities Act shall be issued initially in the form of a Dollar 144A Global
Note, which shall be deposited with the Custodian for DTC and registered in the
name of Cede & Co., the nominee of DTC, duly executed by the Issuer
and authenticated by the Trustee as hereinafter provided.  The aggregate principal amount of the Dollar
144A Global Note may from time to time be increased or decreased by adjustments
made on Schedule A  to each
such Global Note, as hereinafter provided.


 


Dollar Notes offered
and sold in reliance on Regulation S shall be issued initially in the form of a
Dollar Regulation S Global Note, which shall be deposited with the Custodian
for DTC and registered in the name of Cede & Co., the nominee of DTC,
duly executed by the Issuer and authenticated by the Trustee as hereinafter
provided.  The aggregate principal amount
of the Dollar Regulation S Global Note may from time to time be increased or
decreased by adjustments made on Schedule
A to each such Global Note, as hereinafter provided.


 


Euro Notes sold
within the United States to QIBs pursuant to Rule 144A under the U.S.
Securities Act shall be issued initially in the form of a Euro 144A Global
Note, which shall be deposited with the Common Depositary for Euroclear and
Clearstream, duly executed by the Issuer and authenticated by the Trustee as
hereinafter provided.  The aggregate
principal amount of the Euro 144A Global Note may from time to time be
increased or decreased by adjustments made on Schedule A to each such Global Note, as hereinafter
provided.


 


Euro Notes offered
and sold in reliance on Regulation S shall be issued initially in the form of a
Euro Regulation S Global Note, which shall be deposited with the Common
Depositary for Euroclear and Clearstream, duly executed by the Issuer and
authenticated by the Trustee as hereinafter provided.  The aggregate principal amount of the Euro
Regulation S Global Note may from time to time be increased or decreased by
adjustments made on Schedule A
to each such Global Note, as hereinafter provided.


 


(d)           Definitive Registered Notes.


 


Definitive
Registered Notes issued upon transfer of a Book-Entry Interest or a Definitive
Registered Note, or in exchange for a Book-Entry Interest or a Definitive
Registered Note, shall be issued in accordance with this Indenture.


 


Dollar Definitive
Registered Notes shall not be issued upon transfer of, or in exchange for, Euro
Book-Entry Interests or Euro Definitive Registered Notes, and Euro Definitive
Registered Notes shall not be issued upon transfer of, or in exchange for,
Dollar Book-Entry Interests or Dollar Definitive Registered Notes.


 


Notes issued in
definitive registered form will be substantially in the form of Exhibit A hereto (excluding the
Global Note Legend thereon and without the “Schedule of Exchanges of Interests
in the Global Note” in the form of Schedule
A attached thereto).


 


(e)           Book-Entry Provisions.


 


The Applicable
Procedures shall be applicable to Book-Entry Interests in the Global Notes that
are held by Participants through DTC, Euroclear or Clearstream.


 


(f)            Denomination.


 


The Dollar Notes
shall be in denominations of $100,000 and integral multiples of $1,000 above
$100,000.  The Euro Notes shall be in
denominations of €50,000 and integral multiples of €1,000 above €50,000.


 


34

















 


Section 2.02               Execution
and Authentication.


 


(a)           One member of the Issuer’s Board of
Directors shall attest to the Notes for the Issuer by manual or facsimile
signature.


 


(b)           If a member of the Issuer’s Board of
Directors whose signature is on a Note no longer holds that office at the time
a Note is authenticated, the Note shall nevertheless be valid.


 


(c)           A Note shall not be valid until
authenticated by the manual or facsimile signature of the authorized signatory
of the Trustee.  The signature shall be
conclusive evidence that the Note has been authenticated under this Indenture.  Notwithstanding the foregoing, if any Note
shall have been authenticated and delivered hereunder but never issued and sold
by the Issuer, the Issuer may deliver such Note to the Trustee for cancellation
as provided for in Section 2.10.


 


(d)           The Trustee may appoint one or more
authentication agents acceptable to the Issuer to authenticate Notes.  Such an agent may authenticate Notes whenever
the Trustee may do so.  Each reference in
this Indenture to authentication by the Trustee includes authentication by such
agent.  An authenticating agent has the
same rights as an Agent to deal with Holders or an Affiliate of the Issuer.


 


Section 2.03               Paying
Agent, Registrars and Transfer Agents.


 


The Issuer will
maintain one or more paying agents (each, a “Paying
Agent”) for the Notes in each of (i) the City of London, (ii) the
Borough of Manhattan, City of New York (the “Principal
Paying Agent”), and (iii) Luxembourg, for so long as the Notes
are listed on the Official List of the Luxembourg Stock Exchange and admitted
for trading on the Euro MTF and the rules of the Luxembourg Stock Exchange
so require.  The Issuer will ensure that
it maintains a Paying Agent in a member state of the European Union that will
not be obliged to withhold or deduct tax pursuant to the European Union
Directive 2003/48/EC or any other directive implementing the conclusions of the
ECOFIN Council meeting of 26 and 27 November 2000 on the taxation of
savings income, or any law implementing, or complying with or introduced in
order to conform to, such directive.  The
initial Paying Agents will be The Bank of New York Mellon in London and New
York and The Bank of New York Mellon (Luxembourg) S.A. in Luxembourg.


 


The Issuer will also
maintain one or more registrars (each, a “Registrar”)
with offices in each of (i) the City of London, (ii) the Borough of
Manhattan, City of New York,  and (iii) Luxembourg,
for so long as the Notes are quoted on the Euro MTF and the rules of the
Luxembourg Stock Exchange so require. 
The Issuer will also maintain a transfer agent (each, a “Transfer Agent”) in each of the City of
London, the Borough of Manhattan, City of New York and Luxembourg.  The initial Registrar will be The Bank of New
York Mellon in London and New York and The Bank of New York Mellon (Luxembourg)
S.A. in Luxembourg.  The initial Transfer
Agent will be The Bank of New York Mellon. 
The Registrar and the Transfer Agent in New York and the Transfer Agent
in Luxembourg will maintain a register reflecting ownership of Definitive
Registered Notes (as defined herein) outstanding from time to time and will
make payments on and facilitate transfer of Definitive Registered Notes (as
defined herein) on the behalf of the Issuer. 
The Registrar and/or the Transfer Agent (as the case may be) will
promptly inform the Issuer of any changes to the Register.  In the case of discrepancy between the
Register and the register kept by, and at the registered office of, the Issuer,
the registrations in the register held by, and at the registered office of, the
Issuer shall prevail for Luxembourg law purposes.  Each Transfer Agent shall perform the
functions of a transfer agent.


 


Upon notice to the
Trustee, the Issuer may change any Paying Agent, Registrar or Transfer Agent; provided, however, that in no event may
the Issuer appoint a Principal Paying Agent in any member state of the European
Union where the Principal Paying Agent would be obliged to withhold or deduct
tax in connection with any payment made by it in relation to the Notes unless
the Principal Paying Agent would be so obliged if it were located in all other
member states.  For so long as the Notes
are listed on the Official List of the Luxembourg Stock Exchange and admitted
for trading on


 


35

















 


the Euro MTF and the rules of
the Luxembourg Stock Exchange so require, the Issuer will publish a notice of
any change of Paying Agent, Registrar or Transfer Agent in a newspaper having a
general circulation in Luxembourg or, to the extent and in the manner permitted
by such rules, post such notice on the official website of the Luxembourg Stock
Exchange in accordance with Section 13.01.


 


Section 2.04               Paying Agent
to Hold Money.


 


Each Paying Agent
will hold for the benefit of Holders or the Trustee all money held by the
Paying Agent for the payment of principal of, interest, premium and Additional
Amounts, if any, on the Notes, and shall notify the Trustee of any Default by
the Issuer in making any such payment. 
While any such Default continues, the Trustee may require a Paying Agent
to pay all money held by it to the Trustee. 
The Issuer at any time may require a Paying Agent to pay all money held
by it to the Trustee.  Upon payment over
to the Trustee, the Paying Agent (if other than the Issuer, the Parent or a
Subsidiary) shall have no further liability for the money.  Upon any insolvency, bankruptcy or
reorganization proceedings relating to the Issuer (including, without
limitation, its bankruptcy, voluntary or judicial liquidation, composition with
creditors, reprieve from payment, controlled management, fraudulent conveyance,
general settlement with creditors, reorganization or similar laws affecting the
rights of creditors generally), the Trustee shall serve as Paying Agent for the
Notes.


 


Section 2.05               Holder Lists.


 


The Registrar shall
preserve in as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of all Holders.  If the Trustee or the Principal Paying Agent
is not the Registrar, the Issuer shall furnish or cause the Registrar to
furnish, to the Trustee and each Paying Agent at least seven Business Days
before each interest payment date and at such other times as the Trustee or the
Principal Paying Agent may request in writing, a list of the names and
addresses of the Holders of Notes in such form and as of such date as the
Trustee or the Principal Paying Agent may reasonably require.


 


Section 2.06               Transfer and
Exchange.


 


(a)           Transfer and Exchange of Global Notes.


 


A Dollar Global Note
may not be transferred except as a whole by a Depositary to a Custodian or a
nominee of such Custodian, by a Custodian or a nominee of such Custodian to
such Depositary or to another nominee or Custodian of such Depositary, or by
such Custodian or Depositary or any such nominee to a successor Depositary or
Custodian or a nominee thereof.


 


A Euro Global Note
may not be transferred except as a whole by a Depositary to a Common Depositary
or a nominee of such Common Depositary, by a Common Depositary or a nominee of
such Depositary to such Depositary or to another nominee or Common Depositary
of such Depositary, or by such Common Depositary or Depositary or any such
nominee to a successor Depositary or Common Depositary or a nominee thereof.


 


All Dollar Global
Notes and Euro Global Notes, respectively, will be exchanged by the Issuer for
Dollar Definitive Registered Notes and Euro Definitive Registered Notes,
respectively:


 


(i)            if DTC, in respect of the Dollar
Global Notes, or Euroclear or Clearstream, in respect of the Euro Global Notes,
notify the Issuer that they are unwilling or unable to continue to act as
Depositary and a successor Depositary is not appointed by the Issuer within 120
days;


 


(ii)           in whole, but not in part, if the
Issuer or DTC, in respect of the Dollar Global Notes, or Euroclear or
Clearstream, in respect of the Euro Global Notes, so request following a
Default under this Indenture; or


 


36

















 


(iii)          if the holder of a Book-Entry Interest
requests such exchange in writing delivered through DTC, in respect of the
Dollar Global Notes, or through Euroclear or Clearstream, in respect of the
Euro Global Notes, following a Default by the Issuer under this Indenture.


 


Upon the occurrence of any of the
preceding events in clauses (i) through (iii) above, the Issuer shall
issue or cause to be issued Definitive Registered Notes in such names as the
relevant Depositary shall instruct the Trustee.


 


Global Notes also
may be exchanged or replaced, in whole or in part, as provided in Sections 2.07
and 2.09.  A Global Note may not be
exchanged for another Note other than as provided in this Section 2.06(a).  Book-Entry Interests in a Global Note may be
transferred and exchanged as provided in Section 2.06(b) or (c).


 


(b)           General
Provisions Applicable to Transfer and Exchange of Book-Entry Interests in the
Global Notes.


 


Dollar Book-Entry
Interests cannot be exchanged for, or transferred to Persons who take delivery
thereof in the form of, Euro Book-Entry Interests or Euro Definitive Registered
Notes.  Euro Book-Entry Interests cannot
be exchanged for, or transferred to Persons who take delivery thereof in the
form of, Dollar Book-Entry Interests or Dollar Definitive Registered
Notes.  In all other cases, the transfer
and exchange of Book-Entry Interests shall be effected through the relevant
Depositary, in accordance with the provisions of this Indenture and the
Applicable Procedures.


 


In connection with
all transfers and exchanges of Book-Entry Interests (other than transfers of
Book-Entry Interests in connection with which the transferor takes delivery
thereof in the form of a Book-Entry Interest in the same Global Note), the
Trustee must receive:  (i) a written
order from a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to debit from
the transferor a Book-Entry Interest in an amount equal to the Book-Entry
Interest to be transferred or exchanged; (ii) a written order from a
Participant or an Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to credit or cause to
be credited a Book-Entry Interest in another Global Note in an amount equal to
the Book-Entry Interest to be transferred or exchanged; and (iii) instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited or debited with such increase
or decrease, if applicable.


 


In connection with a
transfer or exchange of a Book-Entry Interest for a Definitive Registered Note,
the Trustee and the Registrar must receive: 
(i) a written order from a Participant or an Indirect Participant
given to the Depositary in accordance with the Applicable Procedures directing
the Depositary to debit from the transferor a Book-Entry Interest in an amount
equal to the Book-Entry Interest to be transferred or exchanged; (ii) a
written order from a Participant directing the Registrar to cause to be issued
a Definitive Registered Note in an amount equal to the Book-Entry Interest to
be transferred or exchanged; and (ii) instructions containing information
regarding the Person in whose name such Definitive Registered Note shall be
registered to effect the transfer or exchange referred to above.


 


In connection with
any transfer or exchange of Definitive Registered Notes, the Holder of such
Notes shall present or surrender to the Registrar the Definitive Registered
Notes duly endorsed or accompanied by a written instruction of transfer in a
form satisfactory to the Registrar duly executed by such Holder or by its
attorney, duly authorized in writing.  In
addition, in connection with a transfer or exchange of a Definitive Registered
Note for a Book-Entry Interest, the Trustee must receive a written order
directing the Depositary to credit the account of the transferee in an amount
equal to the Book-Entry Interest to be transferred or exchanged.


 


37

















 


Upon satisfaction of
all of the requirements for transfer or exchange of Book-Entry Interests in
Global Notes contained in this Indenture, the Trustee or the Registrar, as
specified in this Section 2.06, shall endorse the relevant Global Note(s) with
any increase or decrease and instruct the Depositary to reflect such increase
or decrease in its systems.


 


Transfers of
Book-Entry Interests shall be subject to restrictions on transfer comparable to
those set forth herein to the extent required by the U.S. Securities Act.  Transfers and exchanges of Book-Entry
Interests for Book-Entry Interests also shall require compliance with either
subparagraph (b)(i)or (b)(ii) below, as applicable, as well as
subparagraph (b)(iii) below, if applicable.


 


(i)            Transfer
of Book-Entry Interests in the Same Global Note.  Dollar Book-Entry Interests in a Dollar
Global Note may be transferred to Persons who take delivery thereof in the form
of a Dollar Book-Entry Interest in a Dollar Global Note and Euro Book-Entry
Interests in a Euro Global Note may be transferred to Persons who take delivery
thereof in the form of a Euro Book-Entry Interest in a Euro Global Note, in
each case in accordance with the transfer restrictions set forth in the Private
Placement Legend; provided, however,
that prior to the expiration of the Restricted Period, Book-Entry Interests in
the Euro Regulation S Global Notes will be limited to persons that have
accounts with DTC, Euroclear or Clearstream or persons who hold interests
through DTC, Euroclear or Clearstream, and any sale or transfer of such
interest to U.S. persons shall not be permitted during the Restricted Period
unless such resale or transfer is made pursuant to Rule 144A.  No written orders or instructions shall be
required to be delivered to the Trustee to effect the transfers described in
this Section 2.06(b)(i).


 


(ii)           All
Other Transfers and Exchanges of Book-Entry Interests in Global Notes.  A holder may transfer or exchange a
Book-Entry Interest in Global Notes in a transaction not subject to Section 2.06(b)(i) above
only if the Trustee receives either:


 


(A)           both:


 


(1)           a written order from
a Participant or an Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing such Depositary to credit or cause to
be credited a Book-Entry Interest in another Global Note in an amount equal to
the Book-Entry Interest to be transferred or exchanged; and


 


(2)           instructions given by
the Depositary in accordance with the Applicable Procedures containing
information regarding the Participant’s account to be credited with such
increase; or


 


(B)           both:


 


(1)           a written order from
a Participant or an Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing such Depositary to cause to be issued
a Definitive Registered Note in an amount equal to the Book-Entry Interest to
be transferred or exchanged; and


 


(2)           instructions given by
the Depositary to the Registrar containing information specifying the identity
of the Person in whose name such Definitive Registered Note shall be registered
to effect the transfer or exchange referred to in (1) above, the principal
amount of such securities and the CUSIP, ISIN, Common Code or other similar
number identifying the Notes,


 


38

















 


provided that any
such transfer or exchange is made in accordance with the transfer restrictions
set forth in the Private Placement Legend.


 


(iii)          Transfer
of Book-Entry Interests to Another Global Note.  A Book-Entry Interest in any Global Note may
be transferred to a Person who takes delivery thereof in the form of a
Book-Entry Interest in another Global Note if the transfer complies with the
requirements of Section 2.06(b)(ii) above and the Trustee receives
the following:


 


(A)           if the transferee
will take delivery in the form of a Book-Entry Interest in a 144A Global Note,
then the transferor must deliver either a certificate in the form of Exhibit B  hereto, including the
certifications in item (1) thereof; and


 


(B)           if the transferee
will take delivery in the form of a Book-Entry Interest in a Regulation S
Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof.


 


(c)           Transfer
or Exchange of Book-Entry Interests in Global Notes for Definitive Registered
Notes.  Book-Entry Interests
in a Dollar Global Note cannot be exchanged for, or transferred to persons who
take delivery thereof in the form of, a Euro Definitive Registered Note.  Book-Entry Interests in a Euro Global Note
cannot be exchanged for, or transferred to persons who take delivery thereof in
the form of, a Dollar Definitive Registered Note.  If any holder of a Book-Entry Interest in a
Global Note proposes to exchange such Book-Entry Interest for a Definitive
Registered Note or to transfer such Book-Entry Interest to a Person who takes
delivery thereof in the form of a Definitive Registered Note, then, upon
receipt by the Trustee and the Registrar of the following documentation:


 


(i)            in the case of a transfer on or
before the expiration of the Restricted Period by a holder of a Book-Entry
Interest in a Regulation S Global Note, the Trustee shall have received a
certificate to the effect set forth in Exhibit B
hereto, including the certifications in either item (1) or item (2) thereof;


 


(ii)           in the case of a transfer after the
expiration of the Restricted Period by a holder of a Book-Entry Interest in a
Regulation S Global Note, the transfer complies with Section 2.06(b);


 


(iii)          in the case of a transfer by a holder
of a Book-Entry Interest in a Rule 144A Global Note to a QIB in reliance
on Rule 144A, the Trustee shall have received a certificate to the effect
set forth in Exhibit B
hereto, including the certifications in item (1) thereof;


 


(iv)           in the case of a transfer by a holder
of a Book-Entry Interest in a Rule 144A Global Note in reliance on
Regulation S, the Trustee shall have received a certificate to the effect set
forth in Exhibit B
hereto, including the certifications in item (2) thereof; or


 


(v)            in the case of a transfer by a
holder of a Book-Entry Interest in a Rule 144A Global Note in reliance on Rule 144,
the Trustee shall have received a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3) thereof,


 


the Trustee shall cause the aggregate
principal amount of the applicable Global Note to be reduced accordingly
pursuant to Section 2.06(k), and the Issuer shall execute and the Trustee
shall authenticate and deliver to the Person designated in the instructions a
Definitive Registered Note in the appropriate principal amount.  Any Definitive Registered Note issued in
exchange for a Book-Entry Interest in a Global Note pursuant to this Section 2.06(c) shall
be registered by the Registrar in such name or names and in such authorized
denomination or denominations as the holder of such Book-Entry Interest shall
instruct the Registrar through instructions from the Depositary and the
Participant or Indirect Participant.  The
Registrar shall deliver such Definitive Registered Notes to the Persons in


 


39

















 


whose names such Notes are so registered.  Any Definitive Registered Note issued in
exchange for a Book-Entry Interest in a Global Note pursuant to this Section 2.06(c) shall
bear the Private Placement Legend and shall be subject to all restrictions on
transfer contained therein.


 


(d)           Transfer
and Exchange of Definitive Registered Notes for Book-Entry Interests in the
Global Notes.  Dollar
Definitive Registered Notes cannot be exchanged for, or transferred to persons
who take delivery thereof in the form of, Book-Entry Interests in a Euro Global
Note.  Euro Definitive Registered Notes
cannot be exchanged for, or transferred to persons who take delivery thereof in
the form of, Book-Entry Interests in a Dollar Global Note.  If
any Holder of a Definitive Registered Note proposes to exchange such Note for a
Book-Entry Interest in a Global Note or to transfer such Definitive Registered
Notes to a Person who takes delivery thereof in the form of a Book-Entry
Interest in a Global Note, then, upon receipt by the Trustee and the Registrar
of the following documentation:


 


(i)            if the Holder of such Definitive
Registered Note proposes to exchange such Note for a Book-Entry Interest in a
Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (2) thereof;


 


(ii)           if such Definitive Registered Note is
being transferred to a QIB in accordance with Rule 144A, a certificate to
the effect set forth in Exhibit B
hereto, including the certifications in item (1) thereof;


 


(iii)          if such Definitive Registered Note is
being transferred in reliance on Regulation S or Rule 144, a certificate
to the effect set forth in Exhibit B
hereto, including the certifications in item (2) or (3) thereof, as
applicable;


 


(iv)           if such Definitive Registered Note is
being transferred to the Issuer or any of its Subsidiaries, a certificate to
the effect set forth in Exhibit B
hereto, including the certifications in item (3) thereof; and


 


the Trustee will cancel the
Definitive Registered Note, and the Trustee will increase or cause to be
increased the aggregate principal amount of, in the case of clause (i) above,
the appropriate Global Note, in the case of clause (ii) above, the
appropriate 144A Global Note, in the case of clause (iii) above, the
appropriate Global Note, and in the case of clause (iv) above, the
appropriate Global Note.


 


(e)           Transfer and Exchange of Definitive Registered Notes
for Definitive Registered Notes.


 


Dollar Definitive
Registered Notes cannot be exchanged for, or transferred to persons who take
delivery thereof in the form of Euro Definitive Registered Notes.  Euro Definitive Registered Notes cannot be
exchanged for, or transferred to persons who take delivery thereof in the form
of, Dollar Definitive Registered Notes.


 


In all other cases,
upon request by a Holder of Definitive Registered Notes, and such Holder’s
compliance with the provisions of this Section 2.06(e), the Transfer Agent
or the Registrar will register the transfer or exchange of Definitive
Registered Notes of which registration the Issuer will be informed of by the
Transfer Agent or the Registrar (as the case may be).  Prior to such registration of transfer or
exchange, the requesting Holder must present or surrender to the Transfer Agent
or the Registrar the Definitive Registered Notes duly endorsed and accompanied
by a written instruction of transfer in a form satisfactory to the Transfer
Agent or the Registrar duly executed by such Holder or its attorney, duly
authorized to execute the same in writing. 
In the event that the Holder of such Definitive Registered Notes does
not transfer the entire principal amount of Notes represented by any such
Definitive Registered Note, the Transfer Agent or the Registrar will cancel or
cause to be cancelled such Definitive Registered Note and the Issuer (who has
been informed of such cancellation) shall execute and the Trustee shall
authenticate and deliver to the requesting Holder and


 


40

















 


any transferee Definitive Registered
Notes in the appropriate principal amounts. 
In addition, the requesting Holder shall provide any additional
certifications, documents and information, as applicable, required pursuant to
the following provisions of this Section 2.06(e).


 


Any
Definitive Registered Note may be transferred to and registered in the name of
Persons who take delivery thereof in the form of a Definitive Registered Note
if the Registrar receives the following:


 


(i)            if the transfer will be made
pursuant to Rule 144A, then the transferor must deliver a certificate in
the form of Exhibit B
hereto, including the certifications in item (1) thereof; and


 


(ii)           if the transfer will be made in
reliance on Regulation S, then the transferor must deliver a certificate in the
form of Exhibit B  hereto,
including the certifications in item (2) thereof.


 


(f)            Legends.  The following legends shall appear on the
face of all Notes issued under this Indenture unless specifically stated
otherwise in the applicable provisions of this Indenture.


 


(i)            Private
Placement Legend:  Each Global
Note and each Definitive Registered Note (and all Notes issued in exchange
therefor or in substitution thereof) shall bear the legend in substantially the
following form:


 


THIS NOTE HAS NOT
BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD, EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE.  BY
ITS ACQUISITION HEREOF, THE HOLDER FOR THE BENEFIT OF THE ISSUER AND THE
GUARANTORS AND ANY OF THEIR SUCCESSORS IN INTEREST (1) REPRESENTS THAT (A) IT
IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE
IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT PRIOR TO THE DATE
WHICH IS ONE YEAR (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144
UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER
OF THE DATE OF ORIGINAL ISSUE AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THE NOTES (OR ANY PREDECESSOR THERETO)
RESELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE OR A BENEFICIAL INTEREST IN THIS
NOTE EXCEPT (A) TO THE ISSUER, THE GUARANTORS OR ANY SUBSIDIARY THEREOF, (B) TO
A PERSON THAT THE SELLER, AND ANY PERSON ACTING ON ITS BEHALF, REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION COMPLYING WITH
RULE 144A UNDER THE SECURITIES ACT, (C) IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO ANY
OTHER AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OR (E) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND IN EACH OF
SUCH CASES IN COMPLIANCE WITH ANY APPLICABLE SECURITIES LAW OF ANY STATE OF THE
UNITED STATES AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND.  THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE
IN VIOLATION OF THE


 


41

















 


FOREGOING
RESTRICTIONS.  AS USED HEREIN, THE TERMS “OFFSHORE
TRANSACTION”, “UNITED STATES”, AND “U.S. PERSON” HAVE THE MEANING GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT.


 


THIS NOTE HAS BEEN
ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) FOR UNITED STATES FEDERAL INCOME
TAX PURPOSES.  THE ISSUE PRICE, AMOUNT OF
OID, ISSUE DATE AND YIELD TO MATURITY OF THESE NOTES MAY BE OBTAINED FROM
MANAGING DIRECTOR OF THE ISSUER C/O STICHTING PAPER ESCROW HOLDING, LOCATELLIKADE
1, 1076 AZ AMSTERDAM, P.O. BOX 75215, 1070 AE AMSTERDAM, THE NETHERLANDS.


 


(ii)           Global Note Legend.  Each Global Note shall bear a legend in
substantially the following form:


 


“THIS GLOBAL NOTE IS
HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS
NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE
TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
TRANSFERRED OR EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF
THE INDENTURE AND (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.10 OF THE INDENTURE.”


 


(g)   Exchanges of Book-Entry Interests in Global Notes for
Restricted Definitive Notes.  A holder of a Book-Entry Interest
in a Global Note may exchange such Book-Entry Interest for a Restricted
Definitive Note if the exchange or transfer complies with the requirements of Section 2.06(b) above
and the Trustee receives a certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (1) thereof.


 


Upon receipt of such
certificates and the orders and instructions required by Section 2.06(b),
the Trustee shall (i) instruct the Common Depositary or Custodian, as
applicable to deliver, or cause to be delivered, the relevant Global Note to
the Trustee for endorsement and upon receipt thereof, decrease Schedule A
to the relevant Global Note by the principal amount of such exchange; (ii) thereafter,
return the Global Note to the Common Depositary or Custodian, as applicable,
together with all information regarding the Participant accounts to be debited
in connection with such exchange; and (iii) deliver to the Registrar
instructions received by it that contain information regarding the Person in
whose name Definitive Registered Notes shall be registered to effect such
exchange.  The Registrar shall cause all
Definitive Registered Notes issued in exchange for a Book-Entry Interest in a
Global Note pursuant to this Section 2.06(g) to bear the Private
Placement Legend.


 


The Issuer shall
issue and, upon receipt of an Authentication Order from the Issuer in
accordance with Section 2.02 hereof, the Authenticating Agent shall
authenticate, one or more Definitive Registered Notes in an aggregate principal
amount equal to the aggregate principal amount of Book-Entry Interests so
exchanged and in the names set forth in the instructions received by the
Registrar.


 


(h)           Exchanges of Book-Entry Interests in Global Notes for
Unrestricted Definitive Notes.  To the extent permitted by the
Depositary, a holder of a Book-Entry Interest in a Global Note may exchange
such Book-Entry Interest for an Unrestricted Definitive Note only if the
Trustee receives a


 


42

















 


certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (1) thereof.


 


Upon receipt of such
certificates and the orders and instructions required by Section 2.06(b),
the Trustee shall (i) instruct the Common Depositary or Custodian, as
applicable, to deliver, or cause to be delivered, the relevant Global Note to
the Trustee for endorsement and upon receipt thereof, decrease Schedule A
to the relevant Global Note by the principal amount of such exchange; (ii) thereafter,
return the Global Note to the Common Depositary or Custodian, as applicable,
together with all information regarding the Participant accounts to be debited
in connection with such exchange; and (iii) deliver to the Registrar
instructions received by it that contain information regarding the Person in
whose name Definitive Registered Notes shall be registered to effect such
transfer.


 


The Issuer shall
issue and, upon receipt of an Authentication Order from the Issuer in
accordance with Section 2.02 hereof, the Authenticating Agent shall
authenticate, one or more Definitive Registered Notes in an aggregate principal
amount equal to the aggregate principal amount of Book-Entry Interests so
exchanged and in the names set forth in the instructions received by the
Registrar.  Any Definitive Registered
Note issued in exchange for a Book-Entry Interest pursuant to this Section 2.06(h) shall
not bear the Private Placement Legend.


 


(i)            Exchanges of Definitive Registered Notes for
Book-Entry Interests in Global Notes.  Any Holder of a
Restricted Definitive Note may exchange such Note for a Book-Entry Interest in
a Global Note if such exchange complies with Section 2.06(b) above,
such exchange takes place after the expiration of the Restricted Period and the
Registrar receives a certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (2) thereof.


 


Upon satisfaction of
the foregoing conditions, the Registrar shall (i) cancel such Note
pursuant to Section 2.10 hereof; (ii) record such exchange on the
Register; (iii) instruct the Common Depositary or Custodian, as
applicable, to deliver the applicable Global Note; (iv) endorse Schedule A to such Global Note to
reflect the increase in principal amount resulting from such exchange; and (v) thereafter,
return the Global Note to the Common Depositary or Custodian, as applicable,
together with all information regarding the Participant accounts to be credited
in connection with such exchange.


 


(j)    Transfer of Restricted Definitive Notes for
Definitive Registered Notes.


 


Any Holder of a
Restricted Definitive Note may transfer such Note to a Person who takes
delivery thereof in the form of Definitive Registered Notes if the transfer
complies with Section 2.06(b) above and the Registrar a certificate to the effect set forth in Exhibit B hereto, including the
certifications in either item (1), (2) or (3) thereof; provided that, in the case of a transfer
after the expiration of the Restricted Period by a holder of a Regulation S
Definitive Note, no additional documentation is required.


 


Upon the receipt of
any Definitive Registered Note, the Registrar shall cancel such Note pursuant
to Section 2.10 hereof and complete and deliver to the Issuer the
applicable Definitive Registered Note. 
The Issuer shall execute and the Authenticating Agent shall authenticate
and deliver such Definitive Registered Note to such Person(s) as the Holder
of the surrendered Definitive Registered Note shall designate.


 


(k)           Transfer
of Unrestricted Definitive Notes.  Any Holder of an Unrestricted
Definitive Note may transfer such Note to a Person who takes delivery thereof
in the form of Definitive Registered Notes if the transfer complies with Section 2.06(b) above.


 


43














 


(l)            Cancellation
and/or Adjustment of Global Notes.  At
such time as all Book-Entry Interests in a particular Global Note have been
exchanged for Definitive Registered Notes or a particular Global Note has been
redeemed, repurchased or cancelled in whole and not in part, each such Global
Note shall be returned to or retained and cancelled by the Trustee in
accordance with Section 2.10.  At
any time prior to such cancellation, if any Book-Entry Interest in a Global
Note is exchanged for or transferred to a Person who will take delivery thereof
in the form of a Book-Entry Interest in another Global Note or for Definitive
Registered Notes, the principal amount of Notes represented by such Global Note
shall be reduced accordingly and an endorsement shall be made on such Global
Note by the Trustee, the Custodian or the Common Depositary, at the direction
of the Trustee, to reflect such reduction; and if the Book-Entry Interests is
being exchanged for or transferred to a Person who will take delivery thereof
in the form of a Book-Entry Interests in another Global Note, such other Global
Note shall be increased accordingly and an endorsement shall be made on such
Global Note by the Trustee or by the Custodian or the Common Depositary at the
direction of the Trustee to reflect such increase.


 


(m)          General Provisions Relating to
Transfers and Exchanges.


 


(i)            To
permit registrations of transfers and exchanges, the Issuer shall execute and
the Trustee shall authenticate Global Notes and Definitive Registered Notes
upon receipt of an Authentication Order in accordance with Section 2.02 or
at the Registrar’s request.


 


(ii)           No
service charge shall be made by the Issuer or the Registrar to a holder of a
Book-Entry Interest in a Global Note, a Holder of a Global Note or a Holder of
a Definitive Registered Note for any registration of transfer or exchange, but
the Issuer may require payment of a sum sufficient to cover any stamp duty,
stamp duty reserve, documentary or other similar tax or governmental charge
that may be imposed in connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or transfer pursuant to
Sections 2.09, 3.06, 4.10, Section 4.14 and 9.04).


 


(iii)          No
Transfer Agent or Registrar shall be required to register the transfer of or
exchange any Note selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.


 


(iv)           All
Global Notes and Definitive Registered Notes issued upon any registration of
transfer or exchange of Global Notes or Definitive Registered Notes shall be
the valid obligations of the Issuer, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Global Notes or Definitive
Registered Notes surrendered upon such registration of transfer or exchange.


 


(v)            The Issuer shall not be required to register the transfer into
its register kept at its registered office of any Definitive Registered
Notes:  (A) for a period of 15
calendar days prior to any date fixed for the redemption of the Notes under Section 3.03;
(B) for a period of 15 calendar days immediately prior to the date fixed
for selection of Notes to be redeemed in part; (C) for a period of 15
calendar days prior to the record date with respect to any interest payment date;
or (D) which the Holder has tendered (and not withdrawn) for repurchase in
connection with a Change of Control Offer or an Asset Sale Offer.  Any such transfer will be made without charge
to the Holder, other than any taxes, duties and governmental charges payable in
connection with such transfer.


 


(vi)           The Trustee, any
Agent and the Issuer may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the purpose of receiving
payment of principal of, interest, and premium and Additional Amounts, if any,
on such Notes and for all other purposes, and none of the Trustee, any Agent or
the Issuer shall be affected by notice to the contrary.


 


44

















 


(vii)          All certifications,
certificates and Opinions of Counsel required to be submitted to the Issuer,
the Trustee or the Registrar pursuant to this Section 2.06 to effect a
registration of transfer or exchange may be submitted initially by facsimile
with originals to be delivered promptly thereafter to the Trustee.


 


Section 2.07         Replacement Notes.


 


(a)           If any mutilated Note
is surrendered to the Registrar, the Trustee or the Issuer and the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, the Issuer shall issue and the Trustee, upon receipt of an Authentication
Order, shall authenticate a replacement Note if the Trustee’s requirements are
met.  If required by the Trustee or the
Issuer, an indemnity bond must be supplied by the Holder that is sufficient in
the judgment of the Trustee and the Issuer to protect the Issuer, the Trustee,
any Agent and any authenticating agent from any loss that any of them may
suffer if a Note is replaced.  The Issuer
may charge the Holder for its expenses in replacing a Note, including
reasonable fees and expenses of counsel. 
In the event of any such mutilated, lost, destroyed or wrongfully taken
Note has become or is about to become due and payable, the Issuer in its
discretion may pay such Note instead of issuing a new Note in replacement
thereof.


 


(b)           Every
replacement Note is an additional
obligation of the Issuer and shall be entitled to all of the benefits of this
Indenture equally and proportionately with all other Notes duly issued
hereunder.


 


(c)           The
provisions of this Section 2.07
are exclusive and preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated, destroyed, lost or
wrongfully taken Notes.


 


Section 2.08         Outstanding Notes.


 


The Notes outstanding at any time shall be the Notes that fall within the
definition of “outstanding” contained in Section 1.01.


 


Section 2.09         Temporary Notes.


 


(a)           Until
certificates representing Notes
are ready for delivery, the Issuer may prepare and the Trustee, upon receipt of
an Authentication Order, shall authenticate temporary Notes.  Temporary Notes shall be substantially in the
form of definitive Notes but may have variations that the Issuer considers
appropriate for temporary Notes and as such shall be reasonably acceptable to
the Trustee.  Without unreasonable delay,
the Issuer shall prepare and the Trustee shall authenticate definitive Notes in
exchange for temporary Notes.


 


(b)           Holders
of temporary Notes shall be
entitled to all of the benefits of this Indenture.


 


Section 2.10         Cancellation.


 


The Issuer at any time may
deliver Notes to the Trustee for cancellation. 
The Registrar, each Paying Agent and any Transfer Agent shall forward to
the Trustee any Notes surrendered to them for registration of transfer,
exchange or payment.  The Trustee or, at
the direction of the Trustee, the Registrar or the Paying Agent (other than the
Issuer or a Subsidiary) and no one else shall cancel Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
shall destroy canceled Notes (subject to the record retention requirement of
the U.S. Exchange Act).  Certification of
the destruction of all canceled Notes shall be delivered to the Issuer following
a written request from the Issuer.  The
Issuer may not issue new Notes to replace Notes that it has paid or that have
been delivered to the Trustee for cancellation. 
The Issuer undertakes to promptly inform the Luxembourg Stock Exchange
(as long as the Notes are admitted to trading on the Euro MTF and listed on the
Official List of the Luxembourg Stock Exchange) on any such cancellation.


 


45

















 


Section 2.11         Defaulted Interest.


 


If the Issuer defaults in a payment of interest on
the Notes, it shall pay the defaulted interest in any lawful manner plus, to
the extent lawful, interest payable on the defaulted interest, to the Persons
who are Holders on a subsequent special record date, which special record date
shall be the fifteenth day next preceding the date fixed by the Issuer, in each
case at the rate provided in the Notes and in Section 4.01.  The Issuer shall notify the Trustee as soon
as practicable in writing of the amount of defaulted interest proposed to be
paid on each Note and the date of the proposed payment.  The Issuer shall fix or cause to be fixed
each such special record date and payment date, provided that no such special record date shall be less than
10 days prior to the related payment date for such defaulted interest.  At least 15 days before the special record
date, the Issuer (or, upon the written request of the Issuer, the Trustee in
the name and at the expense of the Issuer) shall deliver to the Holders in
accordance with Section 13.01 a notice that states the special record
date, the related payment date and the amount of such interest to be paid.  The Issuer undertakes to promptly inform the
Luxembourg Stock Exchange (as long as the Notes are admitted to trading on the
Euro MTF and listed on the Official List of the Luxembourg Stock Exchange) of
any such special record date.


 


Section 2.12         Further Issues.


 


(a)           The Notes
may be issued in one or more series.  All
Notes of any one series shall be substantially identical except as to
denomination.


 


(b)           Each of the Euro Notes and the Dollar Notes
constitute a separate series of Notes but will be treated as a single class of
securities for all purposes of this Indenture, including for purposes of voting
and taking all other actions by Holders of the Notes, except as otherwise specified
herein.


 


(c)           Subject
to compliance with Section 4.09, the Issuer may from time to time issue
further notes (the “Additional Notes”)
as part of a new or existing series of Notes ranking pari passu with each of the Dollar Notes and the Euro Notes,
respectively, and with substantially the same terms as to status, redemption
and otherwise as such Notes (save for payment of interest accruing prior to the
issue date of such Additional Notes or for the first payment of interest
following the issue date of such Additional Notes).  The Additional Notes will be consolidated and
treated as a single class for all purposes under this Indenture, including,
without limitation, waivers, amendments, redemptions, and offers to purchase,
except as otherwise specified in respect to each series of Notes.


 


(d)           Whenever
it is proposed to create and issue any Additional Notes, the Issuer shall give
to the Trustee not less than 3 days’ notice in writing of its intention so to
do stating the amount of Additional Notes proposed to be created and issued.


 


Section 2.13         CUSIP, ISIN or Common Code Number.


 


The Issuer in issuing the Notes may use a “CUSIP”, “ISIN”
or “Common Code” number and, if so, such CUSIP, ISIN or Common Code number
shall be included in notices of redemption or exchange as a convenience to
Holders; provided, however, that
any such notice may state that no representation is made as to the correctness
or accuracy of the CUSIP, ISIN or Common Code number printed in the notice or
on the Notes, and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption or exchange shall not be
affected by any defect in or omission of such numbers.


 


The Issuer will promptly notify the Trustee of any
change in the CUSIP, ISIN or Common Code number.


 


46

















 


Section 2.14         Deposit of Moneys


 


No later than 10:00 a.m. (London time), on the
Business Day prior to each Interest Payment Date, the maturity date of the
Notes and each payment date relating to an Asset Sale Offer or a Change of
Control Offer, and on the Business Day immediately following any acceleration
of the Notes pursuant to Section 6.02, the Issuer shall deposit with the
Paying Agent, in immediately available funds, money in euro and US dollars
sufficient to make cash payments, if any, due on such day or date, as the case
may be.  Subject to receipt of such funds
as provided by this Section 2.14 by the designated Paying Agent, such
Paying Agent shall remit such payment in a timely manner to the Holders on such
day or date, as the case may be, to the Persons and in the manner set forth in
paragraph 2 of the Notes.  The Issuer
shall promptly notify the Trustee and the Paying Agent of its failure to so
act.


 


ARTICLE 3

REDEMPTION AND PREPAYMENT


 


Section 3.01         Notices to Trustee.


 


If the Issuer elects to redeem Notes pursuant to
the optional redemption provisions of Section 3.07, it shall deliver to
the Trustee in accordance with Section 13.01, at least 30 days but not
more than 60 days before a redemption date, an Officer’s Certificate setting
forth:


 


(i)            the Section of this Indenture pursuant to
which the redemption shall occur;


 


(ii)           the redemption date and the record date;


 


(iii)          the principal amount of Notes to be redeemed;


 


(iv)          the redemption price; and


 


(v)           the CUSIP, ISIN and or Common Code numbers of the Notes, as applicable.


 


Section 3.02         Selection of Notes to Be Redeemed.


 


If less than all of the Euro Notes or the Dollar
Notes, as the case may be, are to be redeemed at any time, the Trustee will
select the Notes for redemption on a pro
rata basis or by lot or some other method as the Trustee in its sole
discretion deems fair and appropriate of the Notes unless otherwise required by
law or applicable stock exchange requirements. 
The Trustee will not be liable for selections made by it in accordance
with this Section 3.02.


 


No Euro Notes of €50,000 or less or Dollar Notes of
$100,000 or less shall be purchased or redeemed in part.


 


Notices of purchase or redemption shall be given to
each Holder pursuant to Sections 3.03 and 13.01.


 


If any Euro Note or Dollar Note is to be redeemed
in part only, the notice of redemption that relates to that Note will state the
portion of the principal amount of that Note that is to be redeemed.  A new Euro Note or Dollar Note, as the case
may be, in principal amount equal to the unredeemed portion of the original
Euro Note or the Dollar Note, as applicable, will be issued in the name of the
Holder of Notes upon cancellation of the original Note.  Notes called for redemption become due on the
date fixed for redemption.  On and after
the redemption date, interest ceases to accrue on Notes or portions of Notes
called for redemption.


 


47

















 


In relation to Definitive Registered Notes, a new
Note in principal amount equal to the unpurchased or unredeemed portion of any
Note purchased or redeemed in part will be issued in the name of the Holder
thereof upon cancellation of the original Note. 
On or after any purchase or redemption date, unless the Issuer defaults
in payment of the purchase or redemption price, interest shall cease to accrue
on Notes or portions thereof tendered for purchase or called for redemption.


 


Section 3.03         Notice of Redemption.


 


(a)           At
least 30 days but not more than 60 days before a redemption date, the Issuer
shall deliver, pursuant to Section 13.01, a notice of redemption to each
Holder whose Notes are to be redeemed, except that redemption notices may be
mailed more than 60 days prior to a redemption date if the notice is issued in
connection with a defeasance of the Notes or the satisfaction and discharge of
this Indenture pursuant to Articles 8 or 12. 
For Notes which are represented by global certificates held on behalf of
Euroclear or Clearstream, notices may be given by delivery of the relevant
notices to Euroclear or Clearstream for communication to entitled account
holders in substitution for the aforesaid mailing.  So long as any Notes are admitted to trading
on the Euro MTF and listed on the Official List of the Luxembourg Stock
Exchange and the rules and regulations of the Luxembourg Stock Exchange so
require, any such notice to the Holders of the relevant Notes shall also be
published in a newspaper having a general circulation in Luxembourg (which is
expected to be d’Wort) and, in
connection with any redemption, the Issuer will forthwith notify the Luxembourg
Stock Exchange of any change in the principal amount of Notes outstanding.  Notices of redemption may be conditional.


 


(b)           The notice shall identify the Notes to be
redeemed and corresponding CUSIP, ISIN or Common Code numbers, as applicable,
and shall state:


 


(i)            the redemption date
and the record date;


 


(ii)           the redemption price
and the amount of accrued interest, if any, and Additional Amounts, if any to
be paid;


 


(iii)          if any Global Note is
being redeemed in part, the portion of the principal amount of such Global Note
to be redeemed and that, after the redemption date upon surrender of such
Global Note, the principal amount thereof will be decreased by the portion
thereof redeemed pursuant thereto;


 


(iv)           if any Definitive
Registered Note is being redeemed in part, the portion of the principal amount
of such Note to be redeemed, and that, after the redemption date, upon
surrender of such Note, a new Definitive Registered Note or Definitive
Registered Notes in principal amount equal to the unredeemed portion thereof
shall be issued in the name of the Holder thereof upon cancellation of the
Definitive Registered Note;


 


(v)            the name and address
of the Paying Agent(s) to which the Notes are to be surrendered for
redemption;


 


(vi)           that Notes called for
redemption must be surrendered to the relevant Paying Agent to collect the
redemption price, plus accrued and unpaid interest, if any, and Additional
Amounts, if any;


 


(vii)          that, unless the Issuer
defaults in making such redemption payment, interest, and Additional Amounts,
if any, on Notes called for redemption cease to accrue on and after the
redemption date;


 


(viii)         the paragraph of the
Notes and/or Section of this Indenture pursuant to which the Notes called
for redemption are being redeemed; and


 


48

















 


(ix)           that no
representation is made as to the correctness or accuracy of the CUSIP, ISIN or
Common Code numbers, if any, listed in such notice or printed on the Notes.


 


(c)           At the Issuer’s request, the Trustee shall
give the notice of redemption in the Issuer’s name and at its expense in
accordance with Section 13.01; provided,
however, that the Issuer shall have delivered to the Trustee, at
least 45 days prior to the redemption date, an Officer’s Certificate requesting
that the Trustee give such notice and setting forth the information to be
stated in such notice as provided in Section 3.03(b).


 


Section 3.04         Effect of Notice of Redemption.


 


Once notice of redemption is given in accordance
with Section 3.03 and Section 13.01, Notes called for redemption
become due and payable on the redemption date at the redemption price stated in
the notice.  A notice of redemption may
be conditional.  On and after a
redemption date, interest shall cease to accrue on such Notes or portion of
them called for redemption.


 


Section 3.05         Deposit of Purchase or Redemption Price.


 


(a)           No later than 10 a.m. (London time) on
the Business Day prior to the purchase or redemption date, the Issuer shall
deposit with the Principal Paying Agent (or, if requested by the Trustee, the
Trustee) money in U.S. Dollars with respect to the Dollar Notes or euro with
respect to the Euro Notes sufficient to pay the redemption price of, and
accrued interest, premium and Additional Amounts (if any) on, all Notes to be
redeemed on that date.  The Trustee or
Principal Paying Agent shall promptly return to the Issuer any money deposited
with the Trustee or Principal Paying Agent, as applicable, by the Issuer in
excess of the amounts necessary to pay the redemption price of, and accrued
interest on, all Notes to be purchased or redeemed.


 


(b)           If the Issuer complies with the provisions of
Section 3.05(a), on and after the redemption date, interest shall cease to
accrue on the Notes or the portions of Notes called for redemption.  If a Note is redeemed on or after a record
date for the payment of interest but on or prior to the related interest
payment date, then any accrued and unpaid interest shall be paid to the Person
in whose name such Note was registered at the close of business on such record
date.  If any Note called for redemption
shall not be so paid upon surrender for redemption because of the failure of
the Issuer to comply with the Section 3.05(a), interest shall be paid on the
unpaid principal, from the redemption date until such principal is paid, and to
the extent lawful on any interest not so paid, in each case at the rate
provided in the Notes and Section 4.01.


 


Section 3.06         Notes Redeemed in Part.


 


Upon surrender of a Definitive Registered Note that
is redeemed in part, the Issuer shall issue and, upon the Issuer’s written
request, the Trustee shall authenticate for (and in the name of) the Holder at
the expense of the Issuer a new Note equal in principal amount to the unredeemed
portion of the Note surrendered; provided
that any Euro Definitive Registered Note shall be in a principal amount of
€50,000 or an integral multiple of €1,000 above €50,000 and any Dollar
Definitive Registered Note shall be in a principal amount of $100,000 or an
integral multiple of $1,000 above $100,000.


 


Section 3.07         Optional Redemption.


 


(a)           At any time prior to August 1, 2012, the
Issuer may on any one or more occasions redeem up to 35% of the aggregate
principal amount of the Euro Notes issued under this Indenture, upon not less
than 30 nor more than 60 days’ notice, at a redemption price equal to 111.75 %
of the principal amount of the Euro Notes redeemed and up to 35% of aggregate
principal amount of Dollar Notes issued under this Indenture, upon not less
than 30 nor more than 60 days’ notice, at a redemption price equal to 112.00%
of the principal amount of the Dollar Notes redeemed, in each


 


49

















 


case, plus accrued and
unpaid interest and Additional Amounts, if any, to the date of redemption
(subject to the rights of holders of Notes on the relevant record date to
receive interest on the relevant interest payment date), with the net cash
proceeds of an Equity Offering; provided
that:


 


(i)            at least 65% of the
aggregate principal amount of the Euro Notes and at least 65% of the aggregate
principal amount of the Dollar Notes originally issued under this Indenture
(excluding Notes held by the Parent and its Subsidiaries) remains outstanding
immediately after the occurrence of such redemption; and


 


(ii)           the redemption
occurs within 90 days of the date of the closing of such Equity Offering.


 


(b)           At any time prior to August 1, 2012, the
Issuer may on any one or more occasions redeem all or a part of the Euro Notes
and/or Dollar Notes, as the case may be, upon not less than 30 nor more than 60
days’ notice delivered to each Holder pursuant to Section 3.03 and Section 13.01
at a redemption price equal to 100% of the principal amount of the Notes
redeemed, plus the Applicable Premium as of, and accrued and unpaid interest
and Additional Amounts, if any, to the date of redemption, subject to the
rights of Holders of the Notes on the relevant record date to receive interest
due on the relevant interest payment date.


 


(c)           Except pursuant to subsections (a) and (b) of
this Section 3.07 and Section 3.08, the Notes will not be redeemable
at the Issuer’s option prior to August 1, 2012.  On or after August 1, 2012, the Issuer
may on any one or more occasions redeem all or a part of the Euro Notes and/or
Dollar Notes, as the case may be, upon not less than 30 nor more than 60 days’
notice delivered to each Holder pursuant to Section 3.03 and Section 13.01
at the redemption prices (expressed as percentages of principal amount) set
forth below, plus accrued and unpaid interest and Additional Amounts, if any,
on the Notes redeemed, to the applicable date of redemption, if redeemed during
the twelve-month period beginning on August 1 of the years indicated
below, subject to the rights of holders of Notes on the relevant record date to
receive interest on the relevant interest payment date:


 


	
  Year

  	
   

  	
  Euro Notes

  	
   

  	
  Dollar Notes

  	
   

  
	
  2012

  	
   

  	
  105.875

  	
  %

  	
  106.000

  	
  %

  
	
  2013 and thereafter

  	
   

  	
  100.000

  	
  %

  	
  100.000

  	
  %

  



 


(d)           Unless the Issuer defaults in the payment of
the redemption price, interest will cease to accrue on the Notes or portions
thereof called for redemption on the applicable redemption date.


 


(e)           Any redemption and notice may, in the Issuer’s
discretion, be subject to the satisfaction of one or more conditions precedent.


 


Section 3.08         Redemption for Changes in Taxes.


 


The Issuer may redeem the Notes, in whole but not
in part, at its discretion at any time upon giving not less than 30 nor more
than 60 days’ prior notice to the Holders of the Notes (which notice will be
irrevocable and given in accordance with the procedures described in Section 3.03
and Section 13.01, at a redemption price equal to the principal amount
thereof, together with accrued and unpaid interest, if any, to the date fixed
by the Issuer for redemption (a “Tax
Redemption Date”) and all Additional Amounts (if any) then due and
which will become due on the Tax Redemption Date as a result of the redemption
or otherwise (subject to the right of Holders of the Notes on the relevant
record date to receive interest due on the relevant interest payment date and
Additional Amounts (if any) in respect thereof), if on the next date on which
any amount would be payable in respect of the Notes, the Issuer or any
Guarantor (including any successor entity) is or would be required to pay
Additional Amounts, and the Issuer or Guarantor cannot avoid any such payment
obligation taking reasonable measures available, and the requirement arises as
a result of:


 


50

















 


(i)            any change in, or
amendment to, the laws or treaties (or any regulations, or rulings promulgated
thereunder) of the relevant Tax Jurisdiction affecting taxation which change or
amendment becomes effective on or after the Issue Date (or, if the relevant Tax
Jurisdiction has changed since the Issue Date, the date on which the then
current Tax Jurisdiction became the applicable Tax Jurisdiction under this
Indenture); or


 


(ii)           any change in, or
amendment to, the existing official position or the introduction of an official
position regarding the application, administration or interpretation of such
laws, treaties, regulations or rulings (including a holding, judgment or order
by a court of competent jurisdiction or a change in published practice), which
change, amendment, application or interpretation becomes effective on or after
the Issue Date (or, if the relevant Tax Jurisdiction has changed since the
Issue Date, the date on which the then current Tax Jurisdiction became the
applicable Tax Jurisdiction under this Indenture).


 


The Issuer or Guarantor, as the case may be, will
not give any such notice of redemption earlier than 90 days prior to the
earliest date on which the Issuer or Guarantor, as the case may be, would be
obligated to make such payment or withholding if a payment in respect of the
Notes were then due.  Prior to the
publication or, where relevant, mailing of any notice of redemption of the
Notes pursuant to the foregoing and in accordance with Section 3.03, the
Issuer will deliver to the Trustee an Opinion of Counsel to the effect that
there has been such change or amendment and otherwise in compliance with Section 13.03
which would entitle the Issuer or Guarantor, as the case may be, to redeem the
Notes hereunder.  In addition, before the
Issuer or Guarantor, as the case may be, publishes or mails notice of
redemption of the Notes pursuant to the foregoing and in accordance with Section 3.03,
it will deliver to the Trustee an Officer’s Certificate to the effect that it
cannot avoid its obligation to pay Additional Amounts by the Issuer or
Guarantor, as the case may be, taking reasonable measures available to it.


 


The Trustee will accept and shall be entitled to
rely on such Officer’s Certificate and Opinion of Counsel as sufficient
evidence of the existence and satisfaction of the conditions precedent as
described above, in which event it will be conclusive and binding on the
Holders.  For the avoidance of doubt, the
implementation of European Council Directive 2003/48/EC or any other directive
implementing the conclusions of the ECOFIN Council meeting of 26 and 27 November 2000
on the taxation of savings income or any law implementing or complying with or
introduced in order to conform to such directive, will not be a change or
amendment for such purposes.


 


Section 3.09         Special Redemption


 


(a)           Terms used in this Section 3.09
and not otherwise defined in this Indenture have the meaning set forth in the
Escrow Agreement.


 


(b)           Upon receipt of a
written notice from the Trustee pursuant to clause 1.4(d) of the Escrow
Agreement, the Issuer shall no later than the Special Redemption Date, deliver,
pursuant to Section 13.01, a notice of redemption to each Holder.


 


(c)           In the event that the
Issuer is permitted to release the Escrow Property to the Principal Paying
Agent pursuant to clause 1.4(e) and so notifies the Trustee, the Issuer
shall promptly and no later than the Special Redemption Date, deliver, pursuant
to Section 13.01, a notice of redemption to each Holder.


 


(d)           Upon receipt of a
written notice from the Trustee pursuant to clause 1.4(f) of the Escrow
Agreement, the Issuer shall promptly and no later than the Special Redemption
Date deliver, pursuant to Section 13.01, a notice of redemption to each
Holder.


 


(e)           For Global Notes which
are held on behalf of DTC, Euroclear or Clearstream, notices may be given by
delivery of the relevant notices to DTC, Euroclear or Clearstream for
communication 


 


51

















 


to entitled account holders in substitution for the aforesaid
mailing.  So long as any Notes are
admitted to trading on the Euro MTF and listed on the Official List of the
Luxembourg Stock Exchange and the rules and regulations of the Luxembourg
Stock Exchange so require, any such notice to the Holders of the relevant Notes
shall also be published by the Issuer in a newspaper having a general
circulation in Luxembourg (which is expected to be d’Wort) and, in connection with any redemption, the Issuer
will forthwith notify the Luxembourg Stock Exchange of any change in the
principal amount of Notes outstanding. 
Notices of redemption may not be conditional.


 


(f)            The notice shall
identify the Notes to be redeemed and corresponding CUSIP, ISIN or Common Code
numbers, as applicable, and shall state:


 


(i)            the applicable
clause in the Escrow Agreement pursuant to which the Issuer is permitted or
required to release the Escrow Property to the Principal Paying Agent;


 


(ii)           the redemption date
and the redemption price, which shall equal €950.66 per €1,000 aggregate
principal amount of Euro Notes and $950.95 per $1,000 aggregate principal
amount of Dollar Notes, in each case, plus the pro rata proportion of the
interest component of the Special Mandatory Redemption Amount or the Special
Optional Redemption Amount, as applicable; and


 


(iii)          that no
representation is made as to the correctness or accuracy of the CUSIP, ISIN or
Common Code numbers, if any, listed in such notice or printed on the Notes.


 


(g)           Each Holder shall
receive the pro rata portion of the Special Mandatory Redemption Amount or the
Special Optional Redemption Amount, as applicable, equivalent to the ratio of
Euro Notes and/or Dollar Notes held by such Holder divided by the aggregate
principal amount of outstanding Euro Notes and Dollar Notes, as applicable, as
the Issuer shall instruct the Trustee and Paying Agent in writing.


 


(h)           The other provisions
of this Article 3 (other Section 3.04) do not apply to this Section 3.09.


 


Section 3.10         Mandatory Redemption.


 


The Issuer shall not be required to make mandatory
redemption or sinking fund payments with respect to the Notes other than
described in Section 3.09.


 


Section 3.11         [Reserved]


 


Section 3.12         Offer to Purchase by Application of Excess Proceeds.


 


(a)           In the event that, pursuant to Section 4.10,
the Issuer is required to commence an Asset Sale Offer, it will follow the
procedures specified in this Section 3.12.


 


(b)           The Issuer (or the Parent on the Issuer’s
behalf) will commence each Asset Sale Offer within 10 Business Days after the
date on which the Excess Proceeds exceed US$25 million by delivering the notice
required pursuant to Section 3.12(d). 
The Asset Sale Offer shall remain open for a period of 20 Business Days
following its commencement except to the extent that a longer period is
required by applicable law (the “Offer
Period”).  No later than five
Business Days after the termination of the Offer Period (the “Purchase Date”), the Issuer shall purchase
the principal amount of Notes required to be purchased pursuant to Section 4.10
(the “Offer Amount”) or, if less
than the Offer Amount has been tendered, all Notes tendered in response to the
Asset Sale Offer.  Payment for any Notes
so purchased shall be made in the same manner as interest payments are made.


 


52














 


(c)           If the Purchase Date
is on or after a record date for the payment of interest and on or before the
related payment date, any accrued and unpaid interest shall be paid to the
Person in whose name a Note is registered at the close of business on such record
date, and no interest shall be payable to Holders who tender Notes pursuant to
the Asset Sale Offer.


 


(d)           Upon the
commencement of an Asset Sale Offer, the Issuer shall deliver a notice to the
Trustee and each of the Holders pursuant to Section 13.01.  The notice shall contain instructions and
materials necessary to enable such Holders to tender Notes pursuant to the
Asset Sale Offer.  The Asset Sale Offer
shall be made to all Holders.  The
notice, which shall govern the terms of the Asset Sale Offer, shall state:


 


(i)             that the Asset Sale
Offer is being made pursuant to this Section 3.12 and the length of time
the Asset Sale Offer shall remain open;


 


(ii)            the Offer Amount,
the purchase price and the Purchase Date;


 


(iii)          that any Note not tendered or accepted
for payment shall continue to accrue interest;


 


(iv)           that, unless the
Issuer defaults in making such payment, any Note accepted for payment pursuant
to the Asset Sale Offer shall cease to accrue interest after the Purchase Date;


 


(v)            that Holders electing
to have a Note purchased pursuant to an Asset Sale Offer may elect to have
Notes purchased in integral multiples of $1,000 or €1,000 only, as the case may
be (provided that Euro Notes of €50,000 or less or Dollar Notes of $100,000 or
less may only be redeemed in whole and not in part);


 


(vi)           that Holders
electing to have a Note purchased pursuant to any Asset Sale Offer shall be required
to surrender the Note, with the form entitled “Option of Holder to Elect
Purchase” on the reverse of the Note completed, or transfer by book-entry
transfer through the facilities of the Depositary, to the account of the
Issuer, or the Paying Agent specified in the notice at least one Business Day
before the Purchase Date;


 


(vii)          that Holders shall be entitled to
withdraw their election if the Issuer, the Depositary or the Paying Agent, as
the case may be, receives, not later than the expiration of the Offer Period, a
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Note the Holder delivered for purchase and a statement
that such Holder is withdrawing his election to have such Note purchased;


 


(viii)         that, if the aggregate principal
amount of Notes and other pari passu
Indebtedness surrendered by Holders exceeds the Offer Amount, the Issuer will
select the Notes and other pari passu
Indebtedness to be purchased as provided in Section 4.10 (with such adjustments
as may be deemed appropriate by the Issuer so that only Notes in denominations
of` $1,000 or €1,000, or integral multiples thereof, as the case may be, will
be purchased (provided that Euro Notes of €50,000 or less or Dollar Notes of
$100,000 or less may only be redeemed in whole and not in part)); and


 


(ix)           that Holders whose
Definitive Registered Notes were purchased only in part shall be issued new
Definitive Registered Notes equal in principal amount to the unpurchased
portion of the Notes.


 


(e)           On or before the
Purchase Date, the Issuer shall, to the extent lawful, accept for payment, on a
pro rata basis to the extent
necessary, the Offer Amount of Notes or portions thereof tendered pursuant to
the Asset Sale Offer, or if less than the Offer Amount has been tendered, all


 


53

















 


Notes tendered, and shall deliver to the Trustee an Officer’s
Certificate stating that such Notes or portions thereof were accepted for
payment by the Issuer in accordance with the terms of this Section 3.12.  The Paying Agent shall promptly (but in any
case not later than five days after the Purchase Date) deliver to each
tendering Holder in the manner specified in the Notes an amount equal to the
purchase price of the Notes tendered by such Holder and accepted by the Issuer
for purchase.  In connection with any
purchase of Global Notes pursuant hereto, the Trustee shall endorse such Global
Notes to reflect the decrease in principal amount of such Global Note resulting
from such purchase.  In connection with
any partial purchase of Definitive Registered Notes, the Issuer shall promptly
issue a new Definitive Registered Note, and the Trustee, upon written request
from the Issuer, shall authenticate and mail or deliver such new Definitive
Registered Note to the tendering Holder, in a principal amount equal to any
unpurchased portion of the Definitive Registered Note surrendered.  Any Note tendered but not accepted shall be
promptly mailed or delivered by the Issuer to the Holder thereof.  The Issuer shall publicly announce and inform
the Luxembourg Stock Exchange (for as long as the Notes (if any) are admitted
to trading on the Euro MTF and listed on the Official List of the Luxembourg Stock
Exchange) of the results of the Asset Sale Offer on the Purchase Date.


 


(f)            Other than as
specifically provided in this Section 3.12, any purchase pursuant to this Section 3.12
shall be made pursuant to the provisions of Sections 3.01 through 3.06.


 


ARTICLE 4

COVENANTS


 


Section 4.01         Payment of Notes.


 


No later than 10 a.m.
(London time) on the Business Day prior to a payment date, the Issuer shall pay
or cause to be paid the principal of, interest and premium and Additional
Amounts, if any, on the Notes in the manner provided in the Notes.  Principal, interest, premium and Additional
Amounts, if any, shall be considered paid on the date due if the Principal
Paying Agent, receives such payment by such time in the manner provided in the
Notes.  Principal, premium, if any,
Additional Amounts, if any, and interest shall be considered paid on the date
due if the Issuer holds, in an account with the Paying Agent, if other than the
Issuer or a Subsidiary thereof, by 10 a.m. (London time) on the Business
Day prior to the due date, money deposited by the Issuer in immediately
available funds and designated for and sufficient to pay all principal,
premium, Additional Amounts, if any, and interest then due.


 


Principal of,
interest, premium and Additional Amounts, if any, on Global Notes will be
payable at the corporate trust office or agency of the Principal Paying Agent
maintained in the City of London for such purposes, at the corporate trust
office or agency of the Paying Agent maintained in the Borough of Manhattan,
City of New York, for such purposes and, for as long as any Notes are admitted
to trading on the Euro MTF and listed on the Official List of the Luxembourg
Stock Exchange, at the office of the Paying Agent appointed in Luxembourg.  All payments on the Global Notes will be made
by transfer of immediately available funds to an account of the Holder of the
Global Notes in accordance with instructions given by that Holder.


 


Principal of,
interest, premium and Additional Amounts, if any, on any Definitive Registered
Notes will be payable at the corporate trust office or agency of any Paying
Agent in any location required to be maintained for such purposes pursuant to Section 2.03.  In addition, interest on Definitive
Registered Notes may be paid by check mailed to the person entitled thereto as
shown on the Register for such Definitive Registered Notes.


 


The Issuer shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal at the rate equal to 1% per annum in
excess of the then applicable interest rate on the Notes to the extent
lawful.  The Issuer shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law)
on overdue installments of interest (without regard to any applicable grace
period) at the same rate to the extent lawful.


 


54

















 


Section 4.02         Maintenance of Office or Agency.


 


Subject to Section 5.01,
the Issuer shall maintain the offices and agencies specified in Section 2.03.  The Issuer shall give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency.  If at any time the Issuer
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the corporate trust office of the
Trustee.


 


The Issuer may also
from time to time designate one or more other offices or agencies where the
Notes may be presented or surrendered for any or all such purposes and may from
time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner
relieve the Issuer of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York, the City of London and Luxembourg
for such purposes.  The Issuer shall give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.


 


The Issuer hereby
designates the corporate trust office of the Trustee (the address of which is
specified in Section 13.01) as one such office or agency of the Issuer in
accordance with Section 2.03.


 


Section 4.03         Reports and Other Information.


 


(a)           So long as any Notes
are outstanding, the Issuer, will furnish to the Trustee:


 


(i)            within 120 days
after the end of the Parent’s fiscal year beginning with the fiscal year ending
September 30, 2009, annual reports containing the following information
with a level of detail that is substantially comparable and similar in scope to
the Offering Memorandum (with appropriate revisions, as reasonably determined
by the Parent to reflect segment reporting) and the following information:  (1) audited consolidated balance sheet
of the Parent as of the end of the two most recent fiscal years and audited
consolidated income statements and statements of cash flow of the Parent for
the three most recent fiscal years, including complete footnotes to such
financial statements and the report of the independent auditors on the
financial statements; (2) pro forma income statement and balance sheet
information of the Parent, together with explanatory footnotes, for any
material acquisitions, dispositions or recapitalizations (but only to the
extent that such pro forma financial information has been required to be
disclosed for such acquisitions, dispositions, or recapitalizations by the JSE
Limited or other regulatory authority) that have occurred since the beginning
of the most recently completed fiscal year as to which such annual report
relates (unless such pro forma information has been provided in a previous
report pursuant to clause 2 or 3 below); (3) an operating and financial
review of the audited financial statements, including a discussion of the
results of operations (including a discussion by business segment), financial
condition and liquidity and capital resources, and a discussion of material
commitments and contingencies and critical accounting policies; (4) a
description of the business, management and shareholders of the Parent,
material affiliate transactions and material debt instruments; and (5) risk
factors and material recent developments; provided
that any item of disclosure that complies in all material respects with the
requirements applicable under Form 20-F under the U.S. Exchange Act for
annual reports with respect to such item will be deemed to satisfy the Parent’s
obligations under this clause (i) with respect to such item;


 


(ii)           within 60 days
following the end of each of the first three fiscal quarters in each fiscal
year of the Parent beginning with the fiscal quarter ending June 28, 2009,
quarterly reports containing the following information:  (1) an unaudited condensed consolidated
balance sheet as of the end of such quarter and unaudited condensed statements
of income and cash flow for the quarterly and year to date periods ending on
the unaudited condensed balance sheet date, and the comparable prior year
periods for the Parent, together with


 


55

















 


condensed footnote disclosure; (2) pro
forma income statement and balance sheet information of the Parent, together
with explanatory footnotes, for any material acquisitions, dispositions or
recapitalizations (but only to the extent that such pro forma financial
information has been required to be disclosed for such acquisitions,
dispositions, or recapitalizations by the JSE Limited or other regulatory
authority) that have occurred since the beginning of the most recently completed
fiscal quarter as to which such quarterly report relates; (3) an operating
and financial review of the unaudited financial statements (including a
discussion by business segment), including a discussion of the consolidated
financial condition and results of operations of the Parent and any material
change between the current quarterly period and the corresponding period of the
prior year; and (4) material recent developments; provided that (for so long as the JSE
Listing Requirements require interim reports) any item of disclosure that
complies in all material respects with the requirements applicable under the
JSE Listing Requirements for interim reports with respect to such item as of
the Issue Date will be deemed to satisfy the Parent’s obligations under this
clause (ii) with respect to such item; and


 


(iii)          promptly after the occurrence of any
material acquisition, disposition or restructuring of the Parent and the
Restricted Subsidiaries, taken as a whole, or any senior executive officer
changes at the Parent or change in auditors of the Parent or any other material
event that the Parent announces publicly, a report containing a description of
such event (but only to the extent that such acquisition, disposition,
restructuring, change or event has been required to be publicly announced or
disclosed by the JSE Limited Listing Requirements for so long as the Parent is
subject thereto).


 


(b)           The annual report required by the preceding paragraph
will include summary condensed consolidating, income statement and balance
sheet information in respect of the Guarantors and the non-Guarantors of the
Notes; provided, however, that
this requirement shall not be applicable during a Suspension Period.  In addition, if the Parent has designated any
of its Subsidiaries as Unrestricted Subsidiaries and such Subsidiaries are
Significant Subsidiaries, then the quarterly and annual financial information
required by the preceding paragraph will include a reasonably detailed
presentation, either on the face of the financial statements or in the
footnotes thereto, of the financial condition and results of operations of the
Parent and its Restricted Subsidiaries separate from the financial condition
and results of operations of the Unrestricted Subsidiaries of the Parent.


 


(c)           All financial statements shall be prepared in
accordance with IFRS.  Except as provided
for above, no report need include separate financial statements for the Parent
or Subsidiaries of the Parent or any disclosure with respect to the results of
operations or any other financial or statistical disclosure not of a type
included in the Offering Memorandum.


 


(d)           In addition, for so long as any Notes remain
outstanding, the Issuer has agreed that it will furnish to the holders and to
securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under
the U.S. Securities Act.


 


(e)           Contemporaneously with the furnishing of each such
report discussed above, the Parent will also (a) file a press release with
the appropriate internationally recognized wire services in connection with
such report or (b) post such report on the Parent’s website.  For so long as the Parent is subject to the
reporting requirements of Section 13(a) or 15(d) of the U.S.
Exchange Act, or elects to comply with such provisions, the Parent will, for so
long as it continues to file the reports required by Section 13(a) with
the Commission, make available to the Trustee the annual reports, information,
documents and other reports that the Parent is required to file with the
Commission pursuant to such Section 13(a) or 15(d).  The Parent will also make available copies of
all reports required by clauses (i) through (iii) of Section 4.03(a),
if and so long as the Notes are listed on the Official List of the Luxembourg
Stock Exchange and admitted for trading on the Euro MTF and the rules of
the Luxembourg Stock Exchange so require, at the offices of the Paying Agent in
Luxembourg or, to the extent and in the manner permitted by such rules, post
such reports on the official website of the Luxembourg Stock Exchange.


 


56

















 


Section 4.04         Compliance Certificate.


 


(a)           The Issuer shall
deliver to the Trustee, within 90 days after the end of each fiscal year
(without the need for any request by the Trustee) and (at any time) within 14
days of a request by the Trustee therefor, an Officer’s Certificate stating
that a review of the activities of the Issuer, the Parent and its Subsidiaries
during the preceding fiscal year or, as the case may be, during the 12-month
period ending on the date of such request, has been made under the supervision
of the signing Officer with a view to determining whether each of the Issuer
and the Parent has kept, observed, performed and fulfilled its obligations
under this Indenture, and further stating, as to such Officer signing such
certificate, that to the best of his or her knowledge each of the Issuer and
the Parent is not (and has not been since the date of the last such
certificate, or if none, since the Issue Date) in Default in the performance or
observance of any of the terms, provisions and conditions of this Indenture
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Issuer and/or the Parent is taking or proposes to take with respect
thereto).


 


(b)           The Issuer shall, so
long as any of the Notes are outstanding, deliver to the Trustee, promptly, in
any case within 30 days, upon any Officer becoming aware of any Default or
Event of Default, an Officer’s Certificate specifying such Default or Event of
Default and what action the Issuer is taking or proposes to take with respect
thereto.


 


Section 4.05         [Reserved].


 


Section 4.06         Stay, Extension and Usury Laws.


 


Each of the Issuer
and the Guarantors covenants (to the extent that it may lawfully do so) that
they shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Indenture; and each of the Issuer and any
Guarantor (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it shall not, by
resort to any such law, hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and permit the execution of
every such power as though no such law has been enacted.


 


Section 4.07         Limitations on Restricted
Payments


 


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


 


(i)            declare or pay any
dividend or make any other payment or distribution on account of the Parent’s
or any of its Restricted Subsidiaries’ Equity Interests (including, without
limitation, any payment in connection with any merger or consolidation
involving the Parent or any of its Restricted Subsidiaries) or to the direct or
indirect holders of the Parent’s or any of its Restricted Subsidiaries’ Equity
Interests in their capacity as holders (other than dividends or distributions
payable in Equity Interests (other than Disqualified Stock) of the Parent or
any of its Restricted Subsidiaries and other than dividends or distributions
payable to the Parent or a Restricted Subsidiary);


 


(ii)           purchase, redeem or
otherwise acquire or retire for value (including, without limitation, in
connection with any merger or consolidation involving the Parent) any Equity
Interests of the Parent or any direct or indirect parent entity of the Parent;


 


(iii)          make any principal payment on or with
respect to, or purchase, redeem, defease or otherwise acquire or retire for
value any Indebtedness of the Parent, the Issuer or any Guarantor that is
expressly contractually subordinated to the Notes or to any Note


 


57

















 


Guarantee
(excluding any intercompany Indebtedness between or among the Parent and any of
its Restricted Subsidiaries), except (1) a payment of principal at the
Stated Maturity thereof or (2) the purchase, repurchase or other
acquisition of Indebtedness purchased in anticipation of satisfying a sinking
fund obligation, principal installment or scheduled maturity, in each case due
within one year of the date of such purchase, repurchase or other acquisition;
or


 


(iv)           make any Restricted
Investment,


 


(all such payments and other actions
set forth in these clauses (i) through (iv) above being collectively
referred to as “Restricted Payments”),
unless, at the time of any such Restricted Payment:


 


(v)            no Default or Event
of Default has occurred and is continuing or would occur as a consequence of
such Restricted Payment;


 


(vi)           the Parent would, at
the time of such Restricted Payment and after giving pro forma effect thereto
as if such Restricted Payment had been made at the beginning of the applicable
four-quarter period, have been permitted to incur at least US$1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in Section 4.09(a); and


 


(vii)          such Restricted Payment, together
with the aggregate amount of all other Restricted Payments made by the Parent
and its Restricted Subsidiaries since the Issue Date (excluding Restricted
Payments permitted by clauses (ii), (iii), (iv), (vi), (vii) and (xi) of Section 4.07(b)),
is less than the sum, without duplication, of:


 


(A)           50% of the
Consolidated Net Income of the Parent for the period (taken as one accounting
period) from June 29, 2009 to the end of the Parent’s most recently ended
fiscal quarter for which internal financial statements are available at the
time of such Restricted Payment (or, if such Consolidated Net Income for such period
is a deficit, less 100% of such deficit); plus


 


(B)           100% of the
aggregate net cash proceeds received by the Parent since the Issue Date as a
contribution to its common equity capital or from the issue or sale of Equity
Interests of the Parent (other than Disqualified Stock) or from the issue or
sale of convertible or exchangeable Disqualified Stock of the Parent or
convertible or exchangeable debt securities of the Parent, in each case that
have been converted into or exchanged for Equity Interests of the Parent (other
than Equity Interests (or Disqualified Stock or debt securities) sold to a
Subsidiary of the Parent); plus


 


(C)          to the extent that any Restricted
Investment that was made after the Issue Date is (a) sold or otherwise
cancelled, liquidated or repaid, or (b) made in an entity that
subsequently becomes a Restricted Subsidiary, 100% of the aggregate net cash
proceeds received by the Parent or Restricted Subsidiary or in the case of
non-cash consideration, the Fair Market Value of the property received by the
Parent or Restricted Subsidiary or the Parent’s Restricted Investment as of the
date such entity becomes a Restricted Subsidiary; plus


 


(D)          to the extent that any Unrestricted
Subsidiary of the Parent designated as such after the Issue Date is
redesignated as a Restricted Subsidiary after the Issue Date, the Fair Market
Value of the property received by the Parent or Restricted Subsidiary or the
Parent’s Restricted Investment in such Subsidiary as of the date of such
redesignation to the extent such investments reduced the restricted payments
capacity under this clause (vii) and were not previously repaid or
otherwise reduced; plus


 


58

















 


(E)           100% of any
dividends or distributions received by the Parent or a Restricted Subsidiary
after the Issue Date from an Unrestricted Subsidiary, to the extent that such
dividends or distributions were not otherwise included in the Consolidated Net
Income of the Parent for such period.


 


(b)           The provisions of Section 4.07(a) will
not prohibit:


 


(i)            the payment of any
dividend or the consummation of any redemption within 60 days after the date of
declaration of the dividend or giving of the redemption notice, as the case may
be, if at the date of declaration or notice, the dividend or redemption payment
would have complied with the provisions of this Indenture;


 


(ii)           the making of any
Restricted Payment in exchange for, or out of or with the net cash proceeds of
the substantially concurrent sale (other than to a Subsidiary of the Parent)
of, Equity Interests of the Parent (other than Disqualified Stock) or from the
substantially concurrent contribution of common equity capital to the Parent; provided that the amount of any such net
cash proceeds that are utilized for any such Restricted Payment will be
excluded from Section 4.07(a)(vii)(B) and will not be considered to
be net cash proceeds from an Equity Offering for purposes of Section 3.07(a);


 


(iii)          the repurchase, redemption,
defeasance or other acquisition or retirement for value of Indebtedness of the
Parent, or any Restricted Subsidiary that is contractually subordinated to the
Notes or to any Note Guarantee with the net cash proceeds from an incurrence of
Permitted Refinancing Indebtedness;


 


(iv)           the repurchase,
redemption or other acquisition or retirement for value of any Equity Interests
of the Parent or any Restricted Subsidiary held by any current or former
officer, director, employee or consultant of the Parent or any of its
Restricted Subsidiaries pursuant to any equity subscription agreement, stock
option agreement, restricted stock grant, shareholders’ agreement or similar
agreement; provided that the
aggregate price paid for all such repurchased, redeemed, acquired or retired
Equity Interests may not exceed US$5.0 million in any calendar year (with
unused amounts in any calendar year being carried over to the next succeeding
two years); and provided, further,
that such amount in any calendar year period may be increased by an amount not
to exceed the cash proceeds from the sale of Equity Interests of the Parent or
a Restricted Subsidiary received by the Parent or a Restricted Subsidiary
during such calendar year period, in each case to members of management,
directors or consultants of the Parent, any of its Restricted Subsidiaries or
any of its direct or indirect parent companies to the extent the cash proceeds
from the sale of Equity Interests have not otherwise been applied to the making
of Restricted Payments pursuant to Section 4.07(a)(vii)(B) or 4.07(b)(ii);


 


(v)            the repurchase of
Equity Interests deemed to occur upon the exercise of stock options to the
extent such Equity Interests represent a portion of the exercise price of those
stock options;


 


(vi)           the declaration and
payment of regularly scheduled or accrued dividends to holders of any class or
series of Disqualified Stock of the Parent or any preferred stock of any
Restricted Subsidiary issued on or after the Issue Date in accordance with Section 4.09;


 


(vii)          payments of cash, dividends, distributions,
advances or other Restricted Payments by the Parent or any of its Restricted
Subsidiaries to allow the payment of cash in lieu of the issuance of fractional
shares upon (1) the exercise of options or warrants or (2) the
conversion or exchange of Capital Stock of any such Person;


 


59

















 


(viii)         advances or loans to any future,
present or former officer, director, employee or consultant of the Parent or a
Restricted Subsidiary to pay for the purchase or other acquisition for value of
Capital Stock of the Parent or a Restricted Subsidiary, or any obligation under
a forward sale agreement, deferred purchase agreement or deferred payment
arrangement pursuant to any management equity plan or stock option plan or any
other management or employee benefit or incentive plan or other agreement or
arrangement, provided that the
total aggregate amount of Restricted Payments made under this clause (viii) does
not exceed US$5.0 million in any calendar year and US$15.0 million in the
aggregate since the Issue Date;


 


(ix)           advances or loans to
any management equity plan or stock option plan or any other management or
employee benefit or incentive plan or unit trust or the trustees of any such
plan or trust, provided that the total
aggregate amount of Restricted Payments made under this clause (ix) does
not exceed US$6.0 million in any calendar year;


 


(x)            the payment of any
dividend (or, in the case of any partnership or limited liability company, any
similar distribution) by a Restricted Subsidiary to the holders of its Equity
Interests (other than the Parent or any Restricted Subsidiary) on no more than
a pro rata basis;


 


(xi)           payment of any
Securitization Fees and purchases of Securitization Assets pursuant to a
Securitization Repurchase Obligation in connection with a Qualified
Securitization Financing;


 


(xii)          the repurchase, redemption or other
acquisition or retirement for value of any Equity Interests of the Parent or
any South African Restricted Subsidiary pursuant to transactions in connection
with the BBBEE Act; or


 


(xiii)         so long as no Default or Event of
Default has occurred and is continuing, other Restricted Payments in an
aggregate amount not to exceed US$37.5 million since the Issue Date.


 


(c)           The amount of all
Restricted Payments (other than cash) will be the Fair Market Value on the date
of the Restricted Payment of the asset(s) or securities proposed to be
transferred or issued by the Parent or such Restricted Subsidiary, as the case
may be, pursuant to the Restricted Payment. 
Unsecured Indebtedness shall not be deemed to be subordinate or junior
to Secured Indebtedness by virtue of its nature as unsecured Indebtedness.


 


Section 4.08         Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries.


 


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


 


(i)            pay dividends or
make any other distributions on its Capital Stock to the Parent or any
Restricted Subsidiary, or with respect to any other interest or participation
in, or measured by, its profits, or pay any Indebtedness owed to the Parent or
any Restricted Subsidiary;


 


(ii)           make loans or
advances to the Parent or any Restricted Subsidiary; or


 


(iii)          sell, lease or transfer any of its
properties or assets to the Parent or any Restricted Subsidiary,


 


60

















 


provided that (x) the
priority of any preferred stock in receiving dividends or liquidating
distributions prior to dividends or liquidating distributions being paid on
common stock and (y) the subordination of (including the application of
any standstill period to) loans or advances made to the Parent or any
Restricted Subsidiary to other Indebtedness incurred by the Parent or any
Restricted Subsidiary, shall not be deemed to constitute such an encumbrance or
restriction.


 


(b)           However, the
preceding restrictions will not apply to encumbrances or restrictions existing
under or by reason of:


 


(i)            agreements governing
Indebtedness and Credit Facilities as in effect on the Issue Date and any
amendments, restatements, modifications, renewals, supplements, refundings, replacements
or refinancings of those agreements; provided that
the amendments, restatements, modifications, renewals, supplements, refundings,
replacements or refinancings are not materially more restrictive, taken as a
whole, with respect to such dividend and other payment restrictions than those
contained in those agreements on the Issue Date;


 


(ii)           this Indenture, the
Notes and the Note Guarantees, the Revolving Credit Facility, the OeKB
Facility, the Bank Austria Facility, the Vendor Loan Notes, the Intercreditor
Agreement and the Collateral Documents;


 


(iii)          agreements governing other
Indebtedness permitted to be incurred under the provisions of Section 4.09
and any amendments, restatements, modifications, renewals, supplements,
refundings, replacements or refinancings of those agreements; provided that the restrictions therein are not materially
less favorable to the holders of the Notes than is customary in comparable
financings (as determined in good faith by the Parent) and the Parent
determines at the time of the incurrence of such Indebtedness that such
encumbrances or restrictions will not adversely affect, in any material
respect, the Issuer’s ability to make principal or interest payments on the
Notes;


 


(iv)           applicable law,
rule, regulation or order or the terms of any license, authorization,
concession or permit;


 


(v)            any instrument
governing Indebtedness or Capital Stock of a Person acquired by the Parent or
any of its Restricted Subsidiaries as in effect at the time of such acquisition
(except to the extent such Indebtedness or Capital Stock was incurred in
connection with or in contemplation of such acquisition), which encumbrance or
restriction is not applicable to any Person, or the properties or assets of any
Person, other than the Person, or the property or assets of the Person, so
acquired; provided that, in the case of
Indebtedness, such Indebtedness was permitted by the terms of this Indenture to
be incurred;


 


(vi)           customary
non-assignment and similar provisions in contracts, leases and licenses entered
into in the ordinary course of business;


 


(vii)          purchase money obligations for
property acquired in the ordinary course of business and Capital Lease
Obligations that impose restrictions on the property purchased or leased of the
nature described in Section 4.08(a)(iii);


 


(viii)         any agreement for the sale or other
disposition of the Capital Stock or all or substantially all of the property
and assets of a Restricted Subsidiary that restricts distributions by that
Restricted Subsidiary pending its sale or other disposition;


 


(ix)           Permitted
Refinancing Indebtedness; provided that
the restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are not materially more restrictive, taken as a whole,
than those contained in the agreements governing the Indebtedness being
refinanced;


 


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(x)            Liens permitted to
be incurred under the provisions of Section 4.12 that limit the right of
the debtor to dispose of the assets subject to such Liens;


 


(xi)           provisions limiting
the disposition or distribution of assets or property in joint venture agreements,
asset sale agreements, sale-leaseback agreements, stock sale agreements and
other similar agreements (including agreements entered into in connection with
a Restricted Investment), which limitation is applicable only to the assets
that are the subject of such agreements;


 


(xii)          restrictions on cash or other
deposits or net worth imposed by customers or suppliers or required by
insurance, surety or bonding companies, in each case, under contracts entered
into in the ordinary course of business;


 


(xiii)         any encumbrance or restriction of a
Securitization Subsidiary effected in connection with a Qualified
Securitization Financing; provided, however,
that such restrictions apply only to such Securitization Subsidiary; and


 


(xiv)         any encumbrance or restriction
existing under any agreement that extends, renews, refinances or replaces the
agreements containing the encumbrances or restrictions in the foregoing Section 4.08(b)(i)–
(xiii), or in this clause (xiv); provided that
the terms and conditions of any such encumbrances or restrictions are no more
restrictive in any material respect than those under or pursuant to the
agreement so extended, renewed, refinanced or replaced.


 


Section 4.09         Limitation on Incurrence of
Indebtedness and Issuance of Preferred Stock


 


(a)           The Parent will not,
and will not cause or permit any of its Restricted Subsidiaries to, directly or
indirectly, create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable, contingently or otherwise, with respect to (collectively,
“incur”) any Indebtedness
(including Acquired Debt), and the Parent will not and will not permit the
Issuer or any Subsidiary Guarantor to, issue any Disqualified Stock and will
not permit any of its Restricted Subsidiaries to issue any shares of preferred
stock; provided, however, that
the Parent may incur Indebtedness (including Acquired Debt) or issue
Disqualified Stock, the Subsidiary Guarantors may issue Disqualified Stock, and
the Issuer and the Subsidiary Guarantors may incur Indebtedness (including
Acquired Debt) or issue preferred stock, if the Fixed Charge Coverage Ratio for
the Parent’s most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such Disqualified Stock or such
preferred stock is issued, as the case may be, would have been at least 2.0 to
1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if
the additional Indebtedness had been incurred or the Disqualified Stock or the
preferred stock had been issued, as the case may be, at the beginning of such
four-quarter period.


 


(b)           Section 4.09(a) will
not prohibit the incurrence of any of the following items of Indebtedness
(collectively, “Permitted Debt”):


 


(i)            the incurrence by
the Issuer, any Guarantor and any Permitted Obligor of additional Indebtedness
under Credit Facilities in an aggregate principal amount at any one time
outstanding under this clause (i) not to exceed €1.1 billion, plus in the case of any refinancing of any
Indebtedness permitted under this clause (i) or any portion thereof, the
aggregate amount of fees, underwriting discounts, premiums and other costs and
expenses incurred in connection with such refinancing, less the aggregate amount of all Net
Proceeds of Asset Sales applied by the Parent or any of its Restricted
Subsidiaries since the Issue Date to repay any term Indebtedness under a Credit
Facility or to repay any revolving credit Indebtedness under a Credit Facility
and effect a corresponding commitment reduction


 


62

















 


thereunder pursuant to
Section 4.10; provided, however,
in no event shall any such reduction reduce the availability under this clause (i) to
less than €950.0 million at any one time outstanding;


 


(ii)           Indebtedness of the
Parent or any Restricted Subsidiary outstanding on the Issue Date which remains
outstanding on the Completion Date and not otherwise referred to in this
definition of “Permitted Debt”;


 


(iii)          the incurrence by the Issuer and the
Guarantors of Indebtedness represented by the Notes issued on the Issue Date
and the related Note Guarantees and the Notes Proceeds Loan to be issued on the
Completion Date and any “parallel debt” obligations under the Intercreditor
Agreement or the Collateral Documents;


 


(iv)           Indebtedness or
Disqualified Stock of the Parent, Disqualified Stock of any Subsidiary
Guarantor and Indebtedness or preferred stock of any Restricted Subsidiary
represented by Capital Lease Obligations, mortgage financings or purchase money
obligations, in each case, incurred for the purpose of financing all or any
part of the purchase price, lease expense, rental payments or cost of design,
construction, installation or improvement of property, plant or equipment or
other assets (including Capital Stock) used in the business of the Parent or
any of its Restricted Subsidiaries, in an aggregate principal amount, including
all Permitted Refinancing Indebtedness, Disqualified Stock and preferred stock
incurred to renew, refund, refinance, replace, defease or discharge any
Indebtedness, Disqualified Stock and preferred stock incurred pursuant to this
clause (iv), not to exceed US$120.0 million at any time outstanding;


 


(v)            Permitted
Refinancing Indebtedness or Disqualified Stock of the Parent or any Subsidiary
Guarantor and Permitted Refinancing Indebtedness or preferred stock of any
Restricted Subsidiary in exchange for, or the net proceeds of which are used to
renew, refund, refinance, replace, defease or discharge any Indebtedness,
Disqualified Stock and preferred stock (other than intercompany Indebtedness)
that was permitted by this Indenture to be incurred by the Parent, Subsidiary
Guarantor or Restricted Subsidiary, as the case may be, under 4.09(a) or
clauses (ii), (iii), or (v) of Section 4.09(b);


 


(vi)           the incurrence by
the Parent or any Restricted Subsidiary of intercompany Indebtedness between or
among the Parent or any Restricted Subsidiary; provided,
however, that:


 


(A)           if the Issuer or any
Guarantor is the obligor on such Indebtedness and the payee is not the Issuer
or a Guarantor, such Indebtedness must be unsecured and ((i) except in
respect of the intercompany current liabilities incurred in the ordinary course
of business in connection with the cash management operations of the Parent and
its Restricted Subsidiaries and (ii) only to the extent legally permitted
(the Parent and its Restricted Subsidiaries having completed all procedures
required in the reasonable judgement of directors of officers of the obligee or
obligor to protect such Persons from any penalty or civil or criminal liability
in connection with the subordination of such Indebtedness) expressly
subordinated to the prior payment in full in cash of all Obligations then due
with respect to the Notes, in the case of the Issuer, or the Note Guarantee, in
the case of a Guarantor; and


 


(B)           if a South African Restricted Subsidiary is the
obligor on such Indebtedness, such intercompany Indebtedness complies with the
requirements of clause (1) of the definition of Permitted Investments; and


 


(C)          (1) any subsequent issuance or
transfer of Equity Interests that results in any such Indebtedness being held
by a Person other than the Parent or a Restricted 


 


63

















 


Subsidiary and (2) any sale or
other transfer of any such Indebtedness to a Person that is not either the
Parent or a Restricted Subsidiary, will be deemed, in each case, to constitute
an incurrence of such Indebtedness by the Issuer or such Restricted Subsidiary,
as the case may be, that was not permitted by this clause (vi);


 


(vii)          the issuance by any Restricted
Subsidiary to the Parent or to any of its Restricted Subsidiaries of preferred
stock; provided,  however, that:


 


(A)           any subsequent
issuance or transfer of Equity Interests that results in any such preferred
stock being held by a Person other than the Parent or a Restricted Subsidiary;
and


 


(B)           any sale or other
transfer of any such preferred stock to a Person that is not either the Parent
or a Restricted Subsidiary,


 


will
be deemed, in each case, to constitute an issuance of such preferred stock by
such Restricted Subsidiary that was not permitted by this clause (vii);


 


(viii)         the incurrence by the Parent or any
Restricted Subsidiary of Hedging Obligations in the ordinary course of business
and not for speculative purposes;


 


(ix)           the Guarantee by the
Parent or any Restricted Subsidiary of Indebtedness of the Parent or any
Restricted Subsidiary to the extent that the guaranteed Indebtedness was
permitted to be incurred by another provision Section 4.09; provided that if the Indebtedness being
guaranteed is subordinated to or pari passu
with the Notes or a Note Guarantee, then the Guarantee must be subordinated or pari passu, as applicable, to the same
extent as the Indebtedness guaranteed; and provided
further, that this clause (ix) will not permit (A) the
Guarantee by any Restricted Subsidiary other than Sappi International S.A. of (1) the
SPH Bonds or (2) any Indebtedness incurred under clause (v) of this
paragraph, the proceeds of which are used to renew, refund, refinance, replace,
defease or discharge the SPH Bonds or any Permitted Refinancing Indebtedness in
respect thereof unless such Indebtedness is secured by the Collateral; (B) the
Guarantee by SPH or any of its Restricted Subsidiaries of Indebtedness of (1) any
South African Restricted Subsidiary or (2) any Guarantee provided by Sappi
Limited in respect of the Indebtedness of a South African Restricted Subsidiary
(other than, in each case, for Guarantees of payments to customers to be made
by Sappi Saiccor), or (C) the Guarantee by any South African Restricted
Subsidiary of any Indebtedness of SPH or any of its Restricted Subsidiaries;


 


(x)            the incurrence by
the Parent or any of its Restricted Subsidiaries of Indebtedness in respect of
workers’ compensation claims, self-insurance obligations, captive insurance
companies, bankers’ acceptances, performance and surety bonds in the ordinary
course of business;


 


(xi)           the incurrence by
the Parent or any of its Restricted Subsidiaries of Indebtedness arising from
the honoring by a bank or other financial institution of a check, draft or
similar instrument inadvertently drawn against insufficient funds, so long as
such Indebtedness is covered within five Business Days;


 


(xii)          Indebtedness represented by
Guarantees of any Management Advances;


 


(xiii)         Indebtedness incurred in a Qualified
Securitization Financing;


 


(xiv)         Indebtedness of any Person
outstanding on the date on which such Person becomes a Restricted Subsidiary or
is merged, consolidated, amalgamated or otherwise combined with (including
pursuant to any acquisition of assets and assumption of related 


 


64

















 


liabilities) the Parent or any
Restricted Subsidiary (other than Indebtedness incurred to provide all or any
portion of the funds used to consummate the transaction or series of related
transactions pursuant to which such Person became a Restricted Subsidiary or
was otherwise acquired by the Parent or a Restricted Subsidiary); provided, however, with respect to this
clause (xiv), that at the time of the acquisition or other transaction pursuant
to which such Indebtedness was deemed to be incurred (a) the Parent would
have been able to incur US$1.00 of additional Indebtedness pursuant to Section 4.09(a) after
giving effect to the incurrence of such Indebtedness pursuant to this clause
(xiv) or (b) the Fixed Charge Coverage Ratio would not be less than it was
immediately prior to giving effect to such acquisition or other transaction;


 


(xv)          Indebtedness arising from agreements
of the Parent or a Restricted Subsidiary providing for customary
indemnification, obligations in respect of earnouts or other adjustments of
purchase price or, in each case, similar obligations, in each case, incurred or
assumed in connection with the acquisition or disposition of any business or
assets or Person or any Equity Interests of a Subsidiary, provided that the maximum liability of the
Parent and its Restricted Subsidiaries in respect of all such Indebtedness
shall at no time exceed the gross proceeds, including the Fair Market Value of
non-cash proceeds (measured at the time received and without giving effect to
any subsequent changes in value), actually received by the Parent and its
Restricted Subsidiaries in connection with such disposition;


 


(xvi)         Indebtedness of the Parent and its
Restricted Subsidiaries in respect of joint ventures in an aggregate principal
amount at any time outstanding not to exceed US$25.0 million plus the
amount of such Indebtedness outstanding or issued on the Issue Date;


 


(xvii)        the incurrence by any South African
Restricted Subsidiary of Indebtedness and guarantees by a South African
Restricted Subsidiary in respect of such Indebtedness in an aggregate principal
amount at any time outstanding, including all Indebtedness incurred to renew,
refund, refinance, replace, defease or discharge any Indebtedness incurred
pursuant to this clause (xvii), not to exceed ZAR5.5 billion;


 


(xviii)       Indebtedness of the Parent and its
Restricted Subsidiaries in respect of (1) letters of credit, surety,
performance or appeal bonds, completion guarantees, judgment, advance payment,
customs, VAT or other tax guarantees or similar instruments issued in the
ordinary course of business of such Person and not in connection with the
borrowing of money, including letters of credit or similar instruments in
respect of self-insurance and workers compensation obligations, and (2) any
customary cash management, cash pooling or netting or setting off arrangements;
provided, however, that upon the
drawing of such letters of credit or other instrument, such obligations are
reimbursed within 30 days following such drawing;


 


(xix)         Guarantees by the Parent or any
Restricted Subsidiary granted to any trustee of any management equity plan or
stock option plan or any other management or employee benefit or incentive plan
or unit trust scheme, so long as the aggregate principal amount of all such Indebtedness
incurred in any calendar year shall not exceed US$6.0 million;


 


(xx)          Any counter indemnity or similar
obligations of the Parent or any Restricted Subsidiary in respect of bills of
exchange or similar instruments, so long as the aggregate principal amount of
all such Indebtedness shall not exceed €25.0 million outstanding at any one
time in the aggregate;


 


(xxi)         Indebtedness represented by
guarantees of pension fund obligations of the Parent or any Restricted
Subsidiary required by law or regulation;


 


65

















 


(xxii)        (1) Indebtedness of the Parent
or any Restricted Subsidiary arising from transactions under or in connection
with the BBBEE Act so long as the aggregate principal amount of all such
Indebtedness does not exceed US$50.0 million outstanding at any one time in the
aggregate (excluding any Indebtedness incurred pursuant to clause (2)) and (2) Guarantees
of Indebtedness made in connection with the BBBEE Act to facilitate the
purchase of Equity Interests of the Parent or any South African Restricted
Subsidiary or in respect of put/call arrangements under which the Parent will
acquire Equity Interests of the Parent or any South African Restricted
Subsidiary (or a Person that owns Equity Interests of the Parent or any South
African Restricted Subsidiary);


 


(xxiii)       Indebtedness of the Parent or any
Restricted Subsidiary incurred in a receivables securitization financing or
similar asset based revolving or term financing at any time outstanding not to
exceed €150.0 million; provided that
such Indebtedness is secured only by the assets described in clause (33) of the
definition of Permitted Liens; and


 


(xxiv)       Indebtedness or Disqualified Stock of
the Parent, Disqualified Stock of any Subsidiary Guarantor, Indebtedness of the
Issuer and Indebtedness or preferred stock of any Restricted Subsidiary in an
aggregate principal amount at any time outstanding, including all Indebtedness,
Disqualified Stock and preferred stock incurred to renew, refund, refinance,
replace, defease or discharge any Indebtedness, Disqualified Stock and
preferred stock incurred pursuant to this clause (xxiv), not to exceed US$125.0
million.


 


Neither the Issuer nor any Guarantor
will incur any Indebtedness (including Permitted Debt) that is contractually
subordinated in right of payment to any other Indebtedness of the Issuer or
such Guarantor unless such Indebtedness is also contractually subordinated in right
of payment to the Notes and the applicable Note Guarantee on substantially
identical terms; provided, however,
that no Indebtedness will be deemed to be contractually subordinated in right
of payment to any other Indebtedness of the Issuer or any Guarantor solely by
virtue of being unsecured by virtue of being secured with different collateral
or by virtue of being secured on a junior priority basis or by virtue of the
application of waterfall or other payment ordering provisions affecting
different tranches of Indebtedness under Credit Facilities.


 


For purposes of determining
compliance with Section 4.09, in the event that an item of Indebtedness
meets the criteria of more than one of the categories of Permitted Debt
described in clauses (i) through (xxiv) above, or is entitled to be
incurred pursuant to Section 4.09(a), the Issuer, in its sole discretion,
will be permitted to classify such item of Indebtedness on the date of its
incurrence and only be required to include the amount and type of such Indebtedness
in one of such clauses and will be permitted on the date of such incurrence to
divide and classify an item of Indebtedness in more than one of the types of
Indebtedness described in Section 4.09(a) or 4.09(b), or except with
respect to Indebtedness incurred under clause (i) or clause (xvii) of the
definition of Permitted Debt, which may not be reclassified, from time to time
to reclassify all or a portion of such item of Indebtedness, in any manner that
complies with Section 4.09. 
Indebtedness under the Existing Revolving Credit Facility, the Existing
OeKB Facility and the Bank Austria Facility outstanding on the Issue Date (and
the Indebtedness under the Revolving Credit Facility and the OeKB Facility
utilized to refinance, replace, restate, or extend such facilities as
contemplated by the Offering Memorandum) will initially be deemed to have been
incurred on such date in reliance on the exception provided by clause (i) of
the definition of Permitted Debt and may not be reclassified.  Indebtedness incurred by South African
Restricted Subsidiaries outstanding on the Issue Date (other than Hedging
Obligations) will initially be deemed to have been incurred on such date in
reliance on the exception provided by clause (xvii) of the definition of Permitted
Debt and may not be reclassified. 
Indebtedness represented by Capital Lease Obligations, mortgage
financings or purchase money obligations incurred by the Parent and any
Restricted Subsidiary (other than a South African Restricted Subsidiary)
outstanding on 


 


66

















 


the Issue Date will initially be
deemed to have been incurred on such date in reliance on the exception provided
by clause (iv) of the definition of Permitted Debt.


 


The accrual of interest or preferred
stock dividends, the accretion or amortization of original issue discount, the
payment of interest on any Indebtedness in the form of additional Indebtedness,
the reclassification of preferred stock as Indebtedness due to a change in
accounting principles, and the payment of dividends on preferred stock or
Disqualified Stock in the form of additional shares of the same class of
preferred stock or Disqualified Stock will not be deemed to be an incurrence of
Indebtedness or an issuance of preferred stock or Disqualified Stock for
purposes of Section 4.09.  For
purposes of determining compliance with any U.S. Dollar-denominated,
ZAR-denominated or euro-denominated restriction on the incurrence of
Indebtedness, the U.S. Dollar equivalent, ZAR equivalent or euro equivalent, as
applicable, principal amount of Indebtedness denominated in a different
currency shall be utilized, calculated based on the relevant currency exchange
rate in effect on the date such Indebtedness was incurred; provided, however, that (1) if such
Indebtedness denominated in a non-U.S. Dollar, non-ZAR or non-euro currency is
subject to a Currency Exchange Protection Agreement with respect to U.S.
Dollars, ZAR, or euro, as applicable, the amount of such Indebtedness expressed
in U.S. Dollars, ZAR or euro, as applicable, will be calculated so as to take
account of the effects of such Currency Exchange Protection Agreement; and (2) the
U.S. Dollar equivalent, ZAR equivalent or euro equivalent, as applicable, of
the principal amount of any such Indebtedness outstanding on the Issue Date
shall be calculated based on the relevant currency exchange rate in effect on
the Issue Date.  The principal amount of
any refinancing Indebtedness incurred in the same currency as the Indebtedness
being refinanced will be the U.S. Dollar equivalent, ZAR equivalent or euro
equivalent, as applicable, of the Indebtedness refinanced determined on the
date such Indebtedness was originally incurred, except that to the extent that:


 


(1)           such U.S. Dollar
equivalent, ZAR equivalent or euro equivalent, as applicable, was determined
based on a Currency Exchange Protection Agreement, in which case the
Refinancing Indebtedness will be determined in accordance with the preceding
sentence; and


 


(2)           the principal amount
of the refinancing Indebtedness exceeds the principal amount of the
Indebtedness being refinanced, in which case the U.S. Dollar equivalent, ZAR
equivalent or euro equivalent, as applicable, of such excess, as appropriate,
will be determined on the date such refinancing Indebtedness is being incurred.


 


Notwithstanding any other provision
of Section 4.09, the maximum amount of Indebtedness that the Parent or any
Restricted Subsidiary may incur pursuant to Section 4.09 shall not be
deemed to be exceeded solely as a result of fluctuations in exchange rates or
currency values.


 


(c)           The amount of any
Indebtedness outstanding as of any date will be:


 


(i)            in the case of any
Indebtedness issued with original issue discount, the amount of the liability
in respect thereof determined in accordance with IFRS;


 


(ii)           the principal amount
of the Indebtedness, in the case of any other Indebtedness; and


 


(iii)          in respect of Indebtedness of another
Person secured by a Lien on the assets of the specified Person, the lesser of:


 


(A)           the Fair Market
Value of such assets at the date of determination; and


 


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(B)           the amount of the
Indebtedness of the other Person.


 


Section 4.10         Asset
Sales.


 


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


 


(i)            the Parent (or the
Restricted Subsidiary, as the case may be) receives consideration at the time
of the Asset Sale at least equal to the Fair Market Value of the assets or
Equity Interests issued or sold or otherwise disposed of; and


 


(ii)           at least 75% of the
consideration received in the Asset Sale by the Parent or such Restricted
Subsidiary is in the form of cash or Cash Equivalents.  For purposes of this provision, each of the
following will be deemed to be cash:


 


(A)           any liabilities, as
recorded on the balance sheet of the Parent or any Restricted Subsidiary (other
than contingent liabilities and liabilities that are by their terms
subordinated to the Notes or any Note Guarantee), that are assumed by the
transferee of any such assets and as a result of which the Parent and its
Restricted Subsidiaries are no longer obligated with respect to such
liabilities or are indemnified against further liabilities;


 


(B)           any securities,
notes or other obligations received by the Parent or any such Restricted
Subsidiary from such transferee that are converted by the Parent or such
Restricted Subsidiary into cash or Cash Equivalents within 90 days following
the closing of the Asset Sale, to the extent of the cash or Cash Equivalents
received in that conversion;


 


(C)          any Capital Stock or assets of the
kind referred to in clauses (iii) or (v) of Section 4.10(b);


 


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


 


(E)           consideration
consisting of Indebtedness of the Issuer or any Guarantor (other than
Indebtedness that is by its terms subordinated to the Notes or any Note
Guarantee) received from Persons who are not the Parent or any Restricted
Subsidiary.


 


(b)           Within 360 days
after the receipt of any Net Proceeds from an Asset Sale, the Parent (or the
applicable Restricted Subsidiary, as the case may be) may apply such Net
Proceeds (at the option of the Parent or Restricted Subsidiary):


 


(i)            to purchase the
Notes pursuant to an offer to all holders of Notes; provided that, all Holders shall be offered the same offer
price for the Notes, plus accrued and unpaid interest to (but not including)
the date of purchase (a “Notes Offer”);


 


(ii)           to purchase, prepay
or redeem or repay Indebtedness which is pari passu in right of payment with
the Notes or any of the Note Guarantees and secured in whole or part by the
Collateral, and, if the Indebtedness repaid is revolving credit Indebtedness,
to correspondingly reduce commitments with respect thereto;


 


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(iii)          to acquire all or substantially all
of the assets of, or any Capital Stock of, another Permitted Business, if,
after giving effect to any such acquisition of Capital Stock, the Permitted
Business is or becomes a Restricted Subsidiary;


 


(iv)           to make a capital
expenditure;


 


(v)            to acquire other
assets (other than Capital Stock) that are used or useful in a Permitted
Business; or


 


(vi)           to the extent such
Net Proceeds derive from an Asset Sale in respect of an asset which immediately
prior to such Asset Sale did not constitute Collateral, to repurchase, prepay,
redeem or repay Indebtedness and, if the Indebtedness repaid is revolving
credit Indebtedness, to correspondingly reduce commitments with respect thereto,
of a Restricted Subsidiary which is not a Guarantor, or Indebtedness of a
Guarantor that is not by its terms subordinated to the Notes Guarantee;


 


provided, however, if the assets sold constitute Collateral, subject to
the Agreed Security Principles, the Parent shall pledge or shall cause the
applicable Restricted Subsidiary to pledge any acquired Capital Stock or assets
(to the extent such assets were of a category of assets included in the
Collateral as of the Issue Date) referred to in clause (iii) or (iv) above
in favor of the Notes on a first-ranking basis.


 


(c)           Pending the final
application of any Net Proceeds, the Parent (or the applicable Restricted
Subsidiary) may temporarily reduce revolving credit borrowings or otherwise
invest the Net Proceeds in any manner that is not prohibited by this Indenture.


 


(d)           Any Net Proceeds
from Asset Sales that are not applied or invested as provided in Section 4.10(b) will
constitute “Excess Proceeds.”  When
the aggregate amount of Excess Proceeds exceeds US$25.0 million, within ten
Business Days thereof, the Issuer will make an offer (an “Asset Sale Offer”) to all Holders of Notes
and may make an offer to all Holders of other Indebtedness that is pari passu with the Notes or any Note
Guarantees with respect to offers to purchase, prepay or redeem with the
proceeds of sales of assets to purchase, prepay or redeem the maximum principal
amount of Notes and such other pari passu
Indebtedness (plus all accrued interest on the Indebtedness and the amount of
all fees and expenses, including premiums, incurred in connection therewith)
that may be purchased, prepaid or redeemed out of the Excess Proceeds.  The offer price for the Notes in any Asset
Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid
interest and Additional Amounts, if any, to the date of purchase, prepayment or
redemption, subject to the rights of Holders of Notes on the relevant record
date to receive interest due on the relevant interest payment date, and will be
payable in cash.  If any Excess Proceeds
remain after consummation of an Asset Sale Offer, the Issuer may use those
Excess Proceeds for any purpose not otherwise prohibited by this
Indenture.  If the aggregate principal
amount of Notes and other pari passu
Indebtedness tendered into (or to be prepaid or redeemed in connection with)
such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will
select the Notes and such other pari passu
Indebtedness to be purchased on a pro rata
basis (or in the manner described in Section 3.02 or Section 13.01),
based on the amounts tendered or required to be prepaid or redeemed.  Upon completion of each Asset Sale Offer, the
amount of Excess Proceeds will be reset at zero.


 


(e)           The Issuer will comply with the requirements of Rule 14e-1
under the U.S. Exchange Act and any other applicable securities laws and
regulations to the extent those laws and regulations are applicable in
connection with each repurchase of Notes pursuant to a Change of Control Offer,
an Asset Sale Offer or a Notes Offer.  To
the extent that the provisions of any securities laws or regulations conflict
with the Change of Control, Asset Sale or Notes Offer provisions of this
Indenture, the Issuer will comply with the applicable securities laws and
regulations and will not be deemed to have breached its obligations under the
Change of Control, Asset Sale or Notes Offer provisions of this Indenture by
virtue of such compliance.


 


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Section 4.11         Transactions with Affiliates.


 


(a)           The Parent will not, and will not cause or permit any
of its Restricted Subsidiaries to, make any payment to or sell, lease, transfer
or otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate of the Parent (each, an “Affiliate Transaction”) involving aggregate payments or
consideration in excess of US$2.5 million, unless:


 


(i)            the Affiliate
Transaction is on terms that are no less favorable to the Parent or the
relevant Restricted Subsidiary than those that would have been obtained in a
comparable transaction by the Parent or such Restricted Subsidiary with an
unrelated Person; and


 


(ii)           the Parent delivers
to the Trustee:


 


(A)           with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of US$15.0 million, a resolution of the Board
of Directors of the Parent set forth in an Officer’s Certificate certifying
that such Affiliate Transaction complies with Section 4.11 and that such
Affiliate Transaction has been approved by a majority of the disinterested
members of the Board of Directors of the Parent; and, in addition,


 


(B)           with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in excess of
US$25.0 million, an opinion of an accounting, appraisal or investment banking
firm of international standing, or other recognized independent expert of
international standing with experience appraising the terms and conditions of
the type of transaction or series of related transactions for which an opinion
is required, stating that the transaction or series of related transactions is (1) fair
from a financial point of view taking into account all relevant circumstances
or (2) on terms not less favorable than might have been obtained in a
comparable transaction at such time on an arm’s length basis from a Person who
is not an Affiliate.


 


(b)           The following items
will not be deemed to be Affiliate Transactions and, therefore, will not be
subject to the provisions of Section 4.11(a):


 


(i)            any employment
agreement, collective bargaining agreement, consultant, employee benefit
arrangements with any employee, consultant, officer or director of the Parent
or any Restricted Subsidiary, including under any stock option, stock
appreciation rights, stock incentive or similar plans, entered into in the
ordinary course of business;


 


(ii)           transactions between
or among the Parent and/or its Restricted Subsidiaries;


 


(iii)          transactions with a Person (other
than an Unrestricted Subsidiary of the Parent) that is an Affiliate of the
Parent solely because the Parent owns, directly or through a Restricted
Subsidiary, an Equity Interest in, or controls, such Person;


 


(iv)           payment of
reasonable and customary fees and reimbursements of expenses (pursuant to
indemnity arrangements or otherwise) of Officers, directors, employees or
consultants of the Parent or any of its Restricted Subsidiaries;


 


(v)            any issuance of
Equity Interests (other than Disqualified Stock) of the Parent to Affiliates of
the Parent;


 


(vi)           Restricted Payments
that do not violate the provisions of Section 4.07;


 


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(vii)          Permitted Investments (other than
Permitted Investments described in clauses (iii), (xiii) and (xvii) of the
definition thereof);


 


(viii)         transactions pursuant to, or
contemplated by, any agreement in effect on the Issue Date and transactions
pursuant to any amendment, modification or extension to such agreement, so long
as such amendment, modification or extension, taken as a whole, is not
materially more disadvantageous to the holders of the Notes than the original
agreement as in effect on the Issue Date;


 


(ix)           Management Advances;


 


(x)            transactions with
customers, clients, suppliers, or purchasers or sellers of goods or services,
in each case in the ordinary course of business and otherwise in compliance
with the terms of this Indenture that are fair to the Parent or the Restricted
Subsidiaries, in the reasonable determination of the members of the Board of
Directors of SPH or the Parent or the senior management thereof, or are on
terms at least as favorable as might reasonably have been obtained at such time
from an unaffiliated Person; and


 


(xi)           any transaction
effected as part of a Qualified Securitization Financing.


 


Section 4.12         Liens.


 


(a)           The Parent will not
and will not cause or permit any of its Restricted Subsidiaries to, directly or
indirectly, create, incur, assume or otherwise cause or suffer to exist or
become effective any Lien of any kind securing Indebtedness upon any of their
property or assets, now owned or hereafter acquired, except (1) in the
case of any property or asset that does not constitute Collateral, Permitted
Liens; and (2) in the case of any property or asset that constitutes
Collateral, Permitted Collateral Liens.


 


Section 4.13         Additional Intercreditor
Agreement.


 


(a)           At the request of the Issuer, at the time of, or prior
to, the incurrence of any Indebtedness that is permitted to share the
Collateral, the Issuer, the relevant Guarantors, the Trustee and the Security
Agent shall enter into an additional intercreditor agreement on terms
substantially similar to the Intercreditor Agreement or an amendment to the
Intercreditor Agreement (which amendment does not adversely affect the rights
of the Noteholders); provided that
such Intercreditor Agreement or additional intercreditor agreement will not
impose any personal obligations on the Trustee or the Security Agent or
adversely affect the rights, duties, liabilities or immunities of the Trustee
under the Indenture or the Intercreditor Agreement.


 


(b)           Upon the request of the Issuer, the Trustee and the
Security Agent shall enter into the Intercreditor Agreement.  Each Holder of a Note, by accepting such
Note, shall be deemed to have agreed to and accepted the terms and conditions
of each Intercreditor Agreement and additional intercreditor agreement and the
Trustee or the Security Agent shall not be required to seek the consent of any
Holders of Notes to perform its obligations under and in accordance with this Section 4.13
and shall be held harmless with respect thereto.


 


Section 4.14         Offer to Repurchase Upon Change
of Control.


 


(a)           If a Change of Control occurs, each holder of Notes
will have the right to require the Issuer to repurchase all or any part (equal
to US$100,000 or €50,000 or an integral multiple of US$1,000 or €1,000 in
excess thereof) of that Holder’s Notes pursuant to a Change of Control Offer on
the terms set forth in this Indenture. 
In the Change of Control Offer, the Issuer will offer a payment in cash
equal to 101% of the aggregate principal amount of Notes repurchased, plus
accrued and unpaid interest and Additional Amounts, if any, on the Notes
repurchased to the date of purchase 


 


71

















 


(the “Change of Control Payment”), subject to
the rights of holders of Notes on the relevant record date to receive interest
due on the relevant interest payment date. 
Within 30 days following any Change of Control, the Issuer will mail a
notice to each holder of the Notes at such holder’s registered address or
otherwise deliver a notice in accordance with the procedures described under Section 13.01,
stating that a Change of Control Offer is being made and offering to repurchase
Notes on the date (the “Change of Control
Payment Date”) specified in the notice, which date will be no
earlier than 30 days and no later than 60 days from the date such notice is
mailed or delivered, pursuant to the procedures required by this Indenture and
described in such notice.  The Issuer
will comply with the requirements of Rule 14e-1 under the U.S. Exchange
Act and any other applicable securities laws and regulations to the extent
those laws and regulations are applicable in connection with the repurchase of
the Notes as a result of a Change of Control Offer.  To the extent that the provisions of any
securities laws or regulations conflict with the Change of Control provisions
of this Indenture, the Issuer will comply with the applicable securities laws
and regulations and will not be deemed to have breached its obligations under
this Indenture by virtue of such compliance.


 


(b)           On the Change of Control Payment Date, the Issuer
will, to the extent lawful:


 


(i)            accept for payment
all Notes or portions of Notes properly tendered pursuant to the Change of
Control Offer;


 


(ii)           deposit with the
Paying Agent an amount equal to the Change of Control Payment in respect of all
Notes or portions of Notes properly tendered; and


 


(iii)          deliver or cause to be delivered to
the Trustee the Notes properly accepted together with an Officer’s Certificate
stating the aggregate principal amount of Notes or portions of Notes being
purchased by the Issuer.


 


(c)           The Paying Agent
will promptly mail (or cause to be delivered) to each holder of Notes properly
tendered the Change of Control Payment for such Notes, and the Trustee will
promptly authenticate and mail (or cause to be transferred by book-entry) to
each holder a new Note equal in principal amount to any unpurchased portion of
the Notes surrendered, if any.  The
Issuer will publicly announce the results of the Change of Control Offer on or
as soon as practicable after the Change of Control Payment Date.


 


(d)           The provisions of
this Section 4.14 that require the Issuer to make a Change of Control
Offer following a Change of Control will be applicable whether or not any other
provisions of this Indenture are applicable. 
Except as described above with respect to a Change of Control, this
Indenture does not permit the holders of the Notes to require that the Issuer
repurchase or redeem the Notes in the event of a takeover, recapitalization or
similar transaction.


 


(e)           The Issuer will not
be required to make a Change of Control Offer upon a Change of Control if (1) a
third party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this Indenture
applicable to a Change of Control Offer made by the Issuer and purchases all
Notes properly tendered and not withdrawn under the Change of Control Offer, or
(2) a notice of redemption has been given pursuant to this Indenture as
described in Section 3.07, unless and until there is a default in payment
of the applicable redemption price. 
Notwithstanding anything to the contrary contained herein, a Change of
Control Offer may be made in advance of a Change of Control, conditioned upon
the consummation of such Change of Control, if a definitive agreement is in
place for the Change of Control at the time the Change of Control Offer is
made.


 


(f)            The provisions under this Indenture relating to the
Issuer’s obligation to make an offer to repurchase the Notes as a result of a
Change of Control may be waived or modified with the consent of the holders of
a majority in principal amount of the Notes prior to the occurrence of the
Change of Control.


 


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(g)           If and for so long as the Notes are listed on the Official List of the
Luxembourg Stock Exchange and admitted for trading on the Euro MTF and the rules of
the Luxembourg Stock Exchange so require, the Issuer will publish notices
relating to the Change of Control Offer in a leading newspaper of general
circulation in Luxembourg or, to the extent and in the manner permitted by such
rules, post such notices on the official website of the Luxembourg Stock
Exchange at www.bourse.lu.


 


Section 4.15         Designation of Restricted and Unrestricted Subsidiaries.


 


(a)           The Board of Directors of the Parent may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if that designation would not cause
a Default.  If a Restricted Subsidiary is
designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of
all outstanding Investments owned by the Parent and its Restricted Subsidiaries
in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be
an Investment made as of the time of the designation and will reduce the amount
available for Restricted Payments under Section 4.07 or under one or more
clauses of the definition of Permitted Investments, as determined by the
Parent.  That designation will only be
permitted if the Investment would be permitted at that time and if the
Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary.  The Parent may redesignate
any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation
would not cause a Default.


 


(b)           Any designation of a Subsidiary of the Parent as an Unrestricted Subsidiary
will be evidenced to the Trustee by filing with the Trustee a copy of a
resolution of the Board of Directors giving effect to such designation and an
Officer’s Certificate certifying that such designation complied with the
preceding conditions and was permitted by Section 4.07.  If, at any time, any Unrestricted Subsidiary
would fail to meet the preceding requirements as an Unrestricted Subsidiary, it
will thereafter cease to be an Unrestricted Subsidiary for purposes of this
Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred
by a Restricted Subsidiary as of such date and, if such Indebtedness is not
permitted to be incurred as of such date under Section 4.09, the Parent
will be in default of such covenant.  The
Board of Directors of the Parent may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided
that such designation will be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such
Unrestricted Subsidiary, and such designation will only be permitted if (1) such
Indebtedness is permitted under the covenant described under Section 4.09,
calculated on a pro forma basis
as if such designation had occurred at the beginning of the applicable
reference period; and (2) no Default or Event of Default would be in
existence following such designation.


 


Section 4.16         Limitation on Issuance of Guarantees of Indebtedness by Restricted
Subsidiaries.


 


(a)           The Parent will not cause or permit any Restricted Subsidiary (which is
not a Guarantor), directly or indirectly, to guarantee, assume or in any other
manner become liable with respect to any Indebtedness of any Restricted
Subsidiary under the Revolving Credit Facility or the OeKB Facility or any
refinancing Indebtedness in respect thereof, unless such Restricted Subsidiary
simultaneously executes and delivers a supplemental indenture to this Indenture
providing for a Guarantee of the Notes on the same terms as the other
Guarantees of the Notes by the Guarantors except that:


 


(i)            such Guarantee need
not be secured unless the guarantee under the Revolving Credit Facility, the
OeKB Facility or any refinancing Indebtedness in respect thereof is secured;


 


(ii)           if such Indebtedness
is by its terms expressly subordinated to the Notes or any Guarantee, any such
assumption, guarantee or other liability of such Restricted Subsidiary with
respect to such Indebtedness shall be subordinated to such Restricted
Subsidiary’s


 


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Guarantee of the Notes at least to the same extent as such Indebtedness
is subordinated to the Notes or any other Guarantee;


 


(iii)          no Guarantee shall
be required if such Guarantee could reasonably be expected to give rise to or
result in (A) personal liability for the officers, directors or
shareholders of such Restricted Subsidiary, (B) any violation of
applicable law that cannot be avoided or otherwise prevented through measures
reasonably available to such Restricted Subsidiary or (C) any significant
cost, expense, liability or obligation (including with respect of any Taxes)
other than reasonable out-of-pocket expenses and other than reasonable expenses
incurred in connection with any governmental or regulatory filings required as
a result of, or any measures pursuant to clause (B) undertaken in
connection with such Guarantee, which cannot be avoided through measures
reasonably available to the Restricted Subsidiary; and


 


(iv)           each such Guarantee
will be limited as necessary to recognize certain defenses generally available
to guarantors (including those that relate to fraudulent conveyance or
transfer, voidable preference, financial assistance, corporate purpose, capital
maintenance or similar laws, regulations or defenses affecting the rights of
creditors generally) or other considerations under applicable law.


 


Section 4.17         Additional Amounts.


 


(a)           All payments made by the Issuer under
or with respect to the Notes (whether or not in the form of Definitive
Registered Notes) or any of the Guarantors with respect to its Note Guarantee
will be made free and clear of and without withholding or deduction for, or on
account of, any present or future Taxes unless the withholding or deduction of
such Taxes is then required by law.  If
any deduction or withholding for, or on account of, any Taxes imposed or levied
by or on behalf of any jurisdiction in which the Issuer or any Guarantor
(including any successor entity) is then incorporated, engaged in business or
resident for tax purposes or any political subdivision thereof or therein or
any jurisdiction from or through which payment is made by or on behalf of the
Issuer or any Guarantor (including, without limitation, the jurisdiction of any
Paying Agent) (each, a “Tax Jurisdiction”)
will at any time be required to be made from any payments made by the Issuer
under or with respect to the Notes or any of the Guarantors with respect to any
Note Guarantee, including, without limitation, payments of principal,
redemption price, purchase price, interest or premium, the Issuer or the
relevant Guarantor, as applicable, will pay such additional amounts (the “Additional Amounts”) as may be necessary
in order that the net amounts received and retained in respect of such payments
by each holder (including Additional Amounts) after such withholding, deduction
or imposition will equal the respective amounts that would have been received
and retained in respect of such payments in the absence of such withholding or
deduction; provided, however,
that no Additional Amounts will be payable with respect to:


 


(i)            any Taxes that would
not have been imposed but for the holder or the Beneficial Owner of the Notes
being a citizen or resident or national of, incorporated in or carrying on a
business, in the relevant Tax Jurisdiction in which such Taxes are imposed or
having any other present or former connection with the relevant Tax
Jurisdiction other than the mere acquisition, holding, enforcement or the
receipt of payment in respect of the Notes or with respect to any Note
Guarantee;


 


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


 


(iii)          any estate,
inheritance, gift, sale, transfer, personal property or similar Taxes;


 


74

















 


(iv)           any Taxes withheld,
deducted or imposed on a payment to an individual and that are required to be
made pursuant to European Council Directive 2003/48/EC or any other directive
implementing the conclusions of the ECOFIN Council meeting of 26 and 27 November 2000
on the taxation of savings income, or any law implementing or complying with or
introduced in order to conform to, such directive;


 


(v)            any Note presented
for payment by or on behalf of a holder of Notes who would have been able to
avoid such withholding or deduction by presenting the relevant Note to another
Paying Agent;


 


(vi)           any Taxes payable
other than by deduction or withholding from payments under, or with respect to,
the Notes or with respect to any Note Guarantee;


 


(vii)          any Taxes to the
extent such Taxes are imposed or withheld by reason of the failure of the
holder or Beneficial Owner of Notes, following the Issuer’s written request
addressed with reasonable prior written notice to the holder or Beneficial
Owner, to comply with any certification, identification, information or other
reporting requirements (to the extent such holder or Beneficial Owner is
legally eligible to do so), whether required by statute, treaty, regulation or
administrative practice of a Tax Jurisdiction, as a precondition to exemption
from, or reduction in the rate of deduction or withholding of, Taxes imposed by
the Tax Jurisdiction (including, without limitation, a certification that the
holder or Beneficial Owner is not resident in the Tax Jurisdiction); or


 


(viii)         any combination of
items (i) through (vii) above;


 


nor
will any Additional Amounts be paid with respect to any Taxes imposed on any
payment of principal or interest on the Note or payments under the Note
Guarantees in respect thereof to any holder who is either a fiduciary of a
Beneficial Owner or a partnership to the extent such principal or interest
payment would be required (under the tax laws of the jurisdiction of the Issuer
or, if applicable, the tax laws of the jurisdiction of a Guarantor) to be
included in the taxable income of either the Beneficial Owner (in the case of a
fiduciary) or a partner (in the case of a partnership) if such Beneficial Owner
or partner would not have been entitled to such Additional Amounts had such
Beneficial Owner or partner been the holder of such Note.


 


(b)           In addition to the foregoing, the Issuer and the Guarantors will also
pay and indemnify the holder for any present or future stamp, court or
documentary taxes, or any other excise or property taxes, charges or similar
levies or Taxes which are levied by any Tax Jurisdiction on the execution,
delivery, registration or enforcement of any of the Notes, this Indenture, any
Note Guarantee, or any Collateral Documents.


 


(c)           If the Issuer or any Guarantor, as
the case may be, becomes aware that it will be obligated to pay Additional
Amounts with respect to any payment under or with respect to the Notes or any
Note Guarantee, each of the Issuer or the relevant Guarantor, as the case may
be, will deliver to the Trustee on a date that is at least 30 days prior to the
date of that payment (unless the obligation to pay Additional Amounts arises
less than 45 days prior to that payment date, in which case the Issuer or the
relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s
Certificate stating the fact that Additional Amounts will be payable and the
amount estimated to be so payable.  The
Officer’s Certificates must also set forth any other information reasonably necessary
to enable the Paying Agents to pay Additional Amounts to holders on the
relevant payment date.  The Trustee shall
be entitled to rely solely on such an Officer’s Certificate as conclusive proof
that such payments are necessary.


 


(d)           Upon written request the Issuer or the relevant Guarantor will provide
to the Trustee copies of receipts or, if such receipts are not obtainable,
other documentation reasonably satisfactory to the Trustee evidencing the
payment of any Taxes so deducted or withheld. 
Upon request, copies of 


 


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those receipts or other documentation, as the case may be, will be made
available by the Trustee to the holders of the Notes.


 


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


 


Section 4.18         Maintenance of Listing.


 


The Issuer will use its commercially reasonable efforts to maintain the
listing of the Notes on the Euro MTF for so long as such Notes are outstanding;
provided that if at any time the
Issuer determines that it will not maintain such listing, it will obtain prior
to the delisting of the Notes from the Euro MTF, and thereafter use its
commercially reasonable efforts to maintain, a listing of such Notes on another
recognized stock exchange or exchange regulated market in Western Europe.


 


Section 4.19         No Impairment of Security Interests.


 


(a)           The Parent will not, and will not cause or permit any of its Restricted
Subsidiaries to, take or knowingly or negligently omit to take, any action
which action or omission might or would have the result of materially impairing
the security interest with respect to the Collateral (it being understood that
the incurrence of Liens on the Collateral permitted by the definition of
Permitted Collateral Liens shall under no circumstances be deemed to materially
impair the security interest with respect to the Collateral) for the benefit of
the Trustee and the holders of the Notes, and the Parent will not, and will not
cause or permit any of its Restricted Subsidiaries to, grant to any Person
other than the Security Agent, for the benefit of the Trustee and the holders
of the Notes and the other beneficiaries described in the Collateral Documents
and the Intercreditor Agreement, any interest whatsoever in any of the
Collateral.


 


(b)           Notwithstanding Section 4.19(a) (1) nothing
in this provision shall restrict the discharge or release of the Collateral in
accordance with this Indenture, the Collateral Documents and the Intercreditor
Agreement and (2) the Parent and its Restricted Subsidiaries may incur
Permitted Collateral Liens; provided further,
however, that no Collateral Document may be amended, extended, renewed,
restated, supplemented or otherwise modified or replaced, unless
contemporaneously with such amendment, extension, replacement, restatement,
supplement, modification or renewal, the Issuer delivers to the Trustee either (A) a
solvency opinion, in form and substance reasonably satisfactory to the Trustee
confirming the solvency of the Parent and its Subsidiaries, taken as a whole,
after giving effect to any transactions related to such amendment, extension,
renewal, supplement, modification or replacement or (B) an opinion of
counsel, in form and substance reasonably satisfactory to the Trustee (subject
to customary exceptions and qualifications), confirming that, after giving
effect to any transactions related to such amendment, extension, renewal,
restatement, supplement, modification or replacement, the Lien or Liens
securing the Notes created under the Collateral Documents so amended, extended,
renewed, restated, supplemented, modified or replaced are valid and perfected
Liens not otherwise subject to any limitation imperfection or new hardening
period, in equity or at law, and that such Lien or Liens were not otherwise
subject to immediately prior to such amendment, extension, renewal,
restatement, supplement, modification or replacement which shall be
substantially in the form attached to this Indenture.  In the event that the Issuer complies with Section 4.19,
the Trustee and the Security Agent shall (subject to customary protections and
indemnifications) consent to such amendment, extension, renewal, restatement,
supplement, modification or replacement with no need for instructions from
holders of the Notes.


 


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Section 4.20         Payments for Consent.


 


The Parent will not, and will not cause or permit any of its Restricted
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration to or for the benefit of any holder of Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Notes unless such consideration is offered
to be paid and is paid to all holders of the Notes that consent, waive or agree
to amend in the time frame set forth in the solicitation documents relating to
such consent, waiver or agreement.


 


Section 4.21         Suspension of Certain Covenants when Notes Rated Investment Grade.


 


If on any date following the Issue Date (i) the Notes have achieved
Investment Grade Status; and (ii) no Default or Event of Default shall
have occurred and be continuing on such date, then, beginning on that day and
continuing until such time, if any, at which the Notes cease to have Investment
Grade Status (such period, the “Suspension
Period”) as a result of the release of Collateral or otherwise,
Sections 4.07 through 4.11, Section 4.15, Section 4.19 (provided that all Collateral securing the
Notes has been released pursuant to the terms of this Indenture), clause (iv) of
Section 5.01(a) and clause (iv) of Section 5.01(b) will
no longer be applicable to the Notes and any related default provisions of this
Indenture will cease to be effective and will not be applicable to the Parent
and its Restricted Subsidiaries.


 


Such covenants will not, however, be of any effect with regard to the
actions of the Parent and the Restricted Subsidiaries properly taken during the
continuance of the Suspension Period; provided
that (1) with respect to the Restricted Payments made after any
such reinstatement, the amount of Restricted Payments will be calculated as
though Section 4.07 had been in effect prior to, but not during, the
Suspension Period and (2) all Indebtedness incurred, or Disqualified Stock
or preferred stock issued, during the Suspension Period will be classified to
have been incurred or issued pursuant to Section 4.09(b)(ii).  Upon the occurrence of a Suspension Period,
the amount of Excess Proceeds shall be reset at zero.


 


During the Suspension Period, the Parent may release or cause its
Restricted Subsidiaries to release the Collateral securing the Notes; provided that during the Suspension Period
no more than US$300.0 million of Indebtedness remains secured by any property
and assets which constituted Collateral for the Liens securing the Notes at the
time such Collateral is released. 
Following the termination of the Suspension Period, the Parent shall use
its commercially reasonable efforts to, and shall cause its Restricted
Subsidiaries to use commercially reasonable efforts, to secure the Notes and
Note Guarantees on a first-ranking basis (subject to Permitted Liens) with
substantially all the property and assets which constituted Collateral at the
time such Collateral was released.


 


Section 4.22         The Issuer and the Notes Proceeds Loan


 


Notwithstanding anything in
this Indenture to the contrary, the Issuer shall not engage in any business
activity or undertake any other activity, except any activity (a) relating
to the offering, sale or issuance of the Notes issued on the Issue Date and any
Additional Notes, the incurrence of Indebtedness represented by the Notes and
the Additional Notes, lending or otherwise advancing the proceeds thereof to
SPH and any other activities in connection therewith, (b) undertaken with
the purpose of fulfilling any other obligations under the Notes, the Additional
Notes or this Indenture or (c) related to the establishment or maintenance
of the Issuer’s corporate existence and activities related to its obligations
under the Escrow Agreement.


 


The Issuer shall not (a) incur any Indebtedness other than the
Indebtedness represented by the Notes issued on the Issue Date and, subject to compliance
with Section 4.09, Additional Notes, or (b) except as otherwise
permitted by this Section 4.22, issue any Capital Stock other than the
issuance of its ordinary shares to SPH or to the Foundation.


 


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The Issuer shall not,
create, incur, assume or suffer to exist any Lien in respect of borrowed money
of any kind against or upon any of its property or assets, or any proceeds
therefrom, except for Liens to secure the payment or performance of the Notes.


 


Subject to the following
sentence, following the Escrow Release Date, the Issuer shall, at all times,
remain a wholly owned Restricted Subsidiary of SPH.  The Issuer shall not merge, consolidate,
amalgamate or otherwise combine with or into another Person except SPH or
another Guarantor, or sell, convey, transfer, lease or otherwise dispose of any
material property or assets to any Person except to SPH or another Guarantor,
in each case, in accordance with Section 5.01.


 


For so long as any Notes
are outstanding, SPH shall not commence or take any action to facilitate a
winding-up, liquidation or other analogous proceeding in respect of the Issuer
other than in connection with the merger, consolidation, transfer, amalgamation
or other consolidation of the Issuer with or into a Guarantor.


 


Following their release on
the Completion Date, the gross proceeds of Notes issued on the Issue Date (and
any Additional Notes issued in the future) shall be on-lent by the Issuer to
SPH under the Notes Proceeds Loan. Neither the Issuer nor SPH shall, except as
expressly permitted by this Indenture: (i) change the Stated Maturity of
the principal of, or any instalment of interest on, the Notes Proceeds Loan; (ii) reduce
the rate of interest on the Notes Proceeds Loan to below the interest rate on
the Notes; (iii) change the currency for payment of principal or interest
on the Notes Proceeds Loan; (iv) prepay or otherwise reduce or permit the
prepayment or reduction of the Notes Proceeds Loan; (v) assign or novate
the Notes Proceeds Loan; or (vi) amend, modify or alter the Notes Proceeds
Loan in any manner adverse to the Holders of the Notes in any material respect.


 


The Notes Proceeds Loan may
be released upon the request or direction of the Security Agent in connection
with an enforcement sale or action under the Intercreditor Agreement.


 


Notwithstanding the
foregoing, the Notes Proceeds Loan may be prepaid or reduced to facilitate or
otherwise accommodate or reflect a repayment, redemption or repurchase of
outstanding Notes. The Notes Proceeds Loan may be discharged in connection with
a transaction permitted under Section 5.01.


 


Notwithstanding the
foregoing, any actions by, or in respect of, the Issuer in connection with the
transactions pursuant to the Escrow Agreement, as described in the Offering
Memorandum, shall be expressly permitted under this Section 4.22.


 


ARTICLE 5

SUCCESSORS


 


Section 5.01         Merger, Consolidation or Sale of Assets.


 


(a)           The Parent will not, directly or
indirectly (1) consolidate or merge with or into another Person (whether
or not the Parent is the surviving corporation), or (2) sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of the
properties or assets of the Parent and its Subsidiaries which are Restricted
Subsidiaries taken as a whole, in one or more related transactions, to another
Person, unless:


 


(i)            either (1) the
Parent is the surviving corporation; or (2) the Person formed by or
surviving any such consolidation or merger (if other than the Parent) or to which
such sale, assignment, transfer, conveyance, lease or other disposition has
been made is an entity organized or existing under the laws of any member state
of the European Union, Switzerland, South Africa, Canada, any state of the
United States or the District of Columbia;


 


78

















 


(ii)           the Person formed by
or surviving any such consolidation or merger (if other than the Parent) or the
Person to which such sale, assignment, transfer, conveyance, lease or other
disposition has been made assumes all the obligations of the Parent under the
Note Guarantee, this Indenture, the Intercreditor Agreement and the Collateral
Documents;


 


(iii)          immediately after
such transaction, no Default or Event of Default exists;


 


(iv)           the Parent or the
Person formed by or surviving any such consolidation or merger (if other than
the Parent), or to which such sale, assignment, transfer, conveyance, lease or
other disposition has been made would, on the date of such transaction after giving
pro forma effect thereto and any
related financing transactions, as if the same had occurred at the beginning of
the applicable four-quarter period (1) be permitted to incur at least
US$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio
test set forth in Section 4.09(a) or (2) have a Fixed Charge
Coverage Ratio not less than it was immediately prior to giving effect to such
transaction; and


 


(v)            the Parent delivers
to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case,
stating that such consolidation, merger or transfer and such supplemental
indenture comply with this Section 5.01(a).


 


(b)           The Issuer will not, directly or
indirectly (1) consolidate or merge with or into another Person (whether
or not the Issuer is the surviving corporation), or (2) sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of the
properties or assets of the Issuer and its Subsidiaries which are Restricted
Subsidiaries taken as a whole, in one or more related transactions, to another
Person, unless:


 


(i)            either (1) the
Issuer is the surviving corporation; or (2) the Person formed by or
surviving any such consolidation or merger (if other than the Issuer) or to
which such sale, assignment, transfer, conveyance, lease or other disposition
has been made is an entity organized or existing under the laws of any member
state of the European Union, Switzerland, South Africa, Canada, any state of
the United States or the District of Columbia;


 


(ii)           the Person formed by
or surviving any such consolidation or merger (if other than the Issuer) or the
Person to which such sale, assignment, transfer, conveyance, lease or other
disposition has been made assumes all the obligations of the Issuer under the
Notes, this Indenture, the Intercreditor Agreement and the Collateral
Documents;


 


(iii)          immediately after
such transaction, no Default or Event of Default exists;


 


(iv)           the Issuer or the
Person formed by or surviving any such consolidation or merger (if other than the
Issuer), or to which such sale, assignment, transfer, conveyance, lease or
other disposition has been made would, on the date of such transaction after
giving pro forma effect thereto and any related financing transactions as if
the same had occurred at the beginning of the applicable four-quarter period (i) be
permitted to incur at least US$1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in Section 4.09(a) or (ii) have
a Fixed Charge Coverage Ratio not less than it was immediately prior to giving
effect to such transaction; and


 


(v)            the Issuer delivers
to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case,
stating that such consolidation, merger or transfer and such supplemental
indenture comply with this Section 5.01(b).


 


(c)           A Guarantor (other than a Guarantor whose Note Guarantee is to be
released in accordance with the terms of the Note Guarantee and Article 11
hereof or the Parent) will not, directly or indirectly:  (1) consolidate or merge with or into
another Person (whether or not such Guarantor is


 


79

















 


the surviving corporation), or (2) sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of the properties or
assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries
taken as a whole, in one or more related transactions, to another Person,
unless:


 


(i)            either (1) such
Guarantor is the surviving corporation; or (2) the Person formed by or
surviving any such consolidation or merger (if other than such Guarantor) or to
which such sale, assignment, transfer, conveyance, lease or other disposition
has been made is an entity organized or existing under the laws of any member
state of the European Union, Switzerland, South Africa, Canada, Hong Kong, the
United States, any state of the United States or the District of Columbia;


 


(ii)           the Person formed by
or surviving any such consolidation or merger (if other than such Guarantor) or
the Person to which such sale, assignment, transfer, conveyance, lease or other
disposition has been made assumes all the obligations of such Guarantor under
the Note Guarantee, this Indenture, the Intercreditor Agreement and the
Collateral Documents;


 


(iii)          immediately after
giving pro forma effect to such transaction (and treating any Indebtedness
which becomes an obligation of the surviving corporation as a result of such
transaction as having been incurred by the surviving corporation at the time of
such transaction), no Default or Event of Default exists; or


 


(iv)           the Parent delivers
to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case,
stating that such consolidation, merger or transfer and such supplemental
indenture comply with this Section 5.01(c).


 


(d)           This
Section 5.01 will not apply to any sale, assignment, transfer, conveyance,
lease or other disposition of assets among the Issuer and the Guarantors; provided that, if the Issuer is not the
surviving entity, the relevant Guarantor will assume the obligations of the
Issuer under the Indenture, the Intercreditor Agreement and (to the extent
applicable), the Collateral Documents.  Section 5.01(a)(iii) and
(iv), Section 5.01(b)(iii) and Section 5.01(c)(iii) hereof
will not apply to any merger or consolidation of the Issuer or any Guarantors
with or into an Affiliate solely for the purpose of reincorporating the Issuer
or such Guarantor in another jurisdiction.


 


Section 5.02         Successor Corporation Substituted.


 


Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the
properties or assets of the Issuer or the Parent, any other Guarantor or their
respective Restricted Subsidiaries, in a transaction that is subject to, and
that complies with the provisions of, Section 5.01, the successor Person
formed by such consolidation or into or with which the Issuer, the Parent or
any other Guarantor, as applicable, is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, assignment, transfer, lease, conveyance or other
disposition, the provisions of this Indenture referring to the “Parent”, the “Issuer”
or the “Guarantor”, as applicable, shall refer instead to the successor Person
and not to the Parent, the Issuer or the Guarantor, as applicable), and may
exercise every right and power of the predecessor Parent, the Issuer or the
Guarantor, as applicable, under this Indenture with the same effect as if such
successor Person had been named as the Parent, the Issuer or Guarantor, as
applicable, herein and the predecessor Issuer, Parent or Guarantor, as
applicable, shall be discharged from all obligations under the Notes, the Notes
Guarantees, this Indenture and the Collateral Documents, as applicable; provided, however, that the predecessor
Parent shall not be relieved from the obligation to pay the principal of and
interest on the Notes except in the case of a sale, conveyance, transfer or
lease of all of the assets of or a consolidation or merger of the Parent in a
transaction that is subject to, and that complies with the provisions of, Section 5.01.


 


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ARTICLE 6

DEFAULTS AND REMEDIES


 


Section 6.01         Events of Default.


 


The following events constitute “Events of Default” under this Indenture:


 


(i)            default for 30 days
in the payment when due of interest on, or Additional Amounts (if any) with
respect to, the Notes;


 


(ii)           default in the
payment when due (at maturity, upon redemption or otherwise) of the principal
of, or premium, if any, on, the Notes;


 


(iii)          failure by the
Issuer to make a Change of Control Offer or Asset Sale Offer or to purchase
Notes in accordance with Section 4.10 or Section 4.14 or failure by
the Issuer or relevant Guarantor for 30 days after written notice to the Parent
by the Trustee or the Holders of at least 25% in aggregate principal amount of
the Notes outstanding, voting as a single class, to comply with any other
provision described in Section 4.10 or Section 4.14;


 


(iv)           failure by the
Parent, the Issuer or relevant Guarantor to comply with Section 5.01;


 


(v)            failure by the
Parent, the Issuer or relevant Guarantor for 60 days after written notice to
the Parent by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding, voting as a single class, to comply with
any of the agreements in this Indenture (other than a default in performance,
or breach, or a covenant or agreement which is specifically dealt with in
clauses (i), (ii), (iii) or (iv) above);


 


(vi)           default under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness for money borrowed by the
Parent, the Issuer or any of its Restricted Subsidiaries (or the payment of
which is guaranteed by the Parent, the Issuer or any of its Restricted
Subsidiaries), whether such Indebtedness or Guarantee now exists, or is created
after the Issue Date, if that default:


 


(A)           is caused by a
failure to pay principal of such Indebtedness prior to the expiration of the
grace period provided in such Indebtedness on the date of such default (a “Payment Default”); or


 


(B)           results in the
acceleration of such Indebtedness prior to its Stated Maturity,


 


and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under which
there has been a Payment Default or the maturity of which has been so
accelerated aggregates US$25.0 million or more;


 


(vii)          failure by the
Parent, the Issuer or any Restricted Subsidiary that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary, to pay final judgments entered by a court
or courts of competent jurisdiction aggregating in excess of US$25.0 million
(exclusive of any amounts that an insurance company has acknowledged liability
for), which judgments shall not have been discharged or waived and there shall
have been a period of 60 consecutive days during which a stay of enforcement of
such judgment, by reason of an appeal, waiver or otherwise, shall not have been
in effect;


 


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(viii)         any security
interest created by the Collateral Documents ceases to be in full force and
effect (except as permitted by the terms of this Indenture, the Intercreditor
Agreement or the Collateral Documents) with respect to Collateral having a Fair
Market Value in excess of US$5.0 million or an assertion by the Parent or any
of its Restricted Subsidiaries, in any pleading in any court of competent
jurisdiction, that any Collateral having a Fair Market Value in excess of
US$5.0 million is not subject to a valid, perfected security interest (except
as permitted by the terms of the Indenture, the Intercreditor Agreement or the
Collateral Documents);


 


(ix)           except as permitted
by this Indenture (including with respect to any limitations), any Note
Guarantee of the Parent or a Significant Subsidiary or any group of its
Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary is held in any judicial proceeding to be unenforceable or invalid or
ceases for any reason to be in full force and effect, or the Parent or any
Guarantor which is a Significant Subsidiary or any group of its Restricted
Subsidiaries that, taken together, would constitute a Significant Subsidiary,
or any Person acting on behalf of any such Guarantor, denies or disaffirms its
obligations under its Note Guarantee;


 


(x)            the Issuer, the
Parent or any of its Restricted Subsidiaries that is a Significant Subsidiary
or any group of its Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary pursuant to or within the meaning of
Bankruptcy Law:


 


(A)           commences a voluntary
case;


 


(B)           consents to the entry
of an order for relief against it in an involuntary case;


 


(C)          consents to the
appointment of a custodian of it or for all or substantially all of its
property;


 


(D)          makes a general
assignment for the benefit of its creditors; or


 


(E)           admits in writing its
inability to pay its debts generally as they become due; and


 


(xi)           a court of competent
jurisdiction enters an order or decree under any Bankruptcy Law that:


 


(A)           is for relief against
the Parent, the Issuer or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of its Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary in an involuntary case;


 


(B)           appoints a custodian
or administrator of the Parent, the Issuer, or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of its Restricted
Subsidiaries that, taken together, would constitute a Significant Subsidiary or
for all or substantially all of the property of the Parent, the Issuer or any
of its Restricted Subsidiaries that is a Significant Subsidiary or any group of
its Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary; or


 


(C)          orders the liquidation
of the Parent, the Issuer or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of its Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary;


 


and the order or decree
remains unstayed and in effect for 60 consecutive days.


 


82














 


Section 6.02         Acceleration.


 


In the case of an Event of Default specified in clause (x) or (xi)
of Section 6.01, with respect to the Parent or the Issuer, all outstanding
Notes will become due and payable immediately without further action or
notice.  If any other Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the then outstanding Notes may declare all the
Notes to be due and payable immediately and may instruct the Security Agent to enforce
any Collateral pursuant to the terms of the Intercreditor Agreement and the
Security Agent to enforce the Notes Proceeds Loan Assignment Agreement.


 


Section 6.03         Other
Remedies.


 


If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal of, interest, premium
and Additional Amounts, if any, on the Notes or to enforce the performance of
any provision of this Indenture.


 


The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding.  A delay or omission by the Trustee or any
Holder of a Note in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. 
All remedies are cumulative to the extent permitted by law.


 


Section 6.04         Waiver
of Past Defaults.


 


The Holders of not less than a majority in aggregate principal amount of
the Notes outstanding may, on behalf of the holders of all outstanding Notes,
waive any past default under this Indenture and its consequences, except a
continuing default


 


(i)            in the payment of
the principal of premium, if any, any Additional Amounts or interest on any
Note held by a non-consenting holder (which may only be waived with the consent
of each Holder of Notes affected), or


 


(ii)           for any Note held
by a non-consenting holder, in respect of a covenant or provision which under
this Indenture cannot be modified or amended without the consent of the holder
of each Note affected by such modification or amendment.


 


Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.


 


Prior to taking any action hereunder, the Trustee shall be entitled to
indemnification or other security satisfactory to it in its sole discretion
against all losses, liabilities and expenses caused by taking or not taking
such action.


 


Section 6.05         Control
by Majority.


 


Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on the Trustee. 
However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture or that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability.


 


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Section 6.06         Limitation
on Suits.


 


Subject to the provisions of this Indenture relating to the duties of
the Trustee, in case an Event of Default occurs and is continuing, the Trustee
will be under no obligation to exercise any of the rights or powers under this
Indenture at the request or direction of any Holders of Notes unless such Holders
have offered to the Trustee reasonable indemnity or security against any loss,
liability or expense.  Except (subject to
Article 9 hereof) to enforce the right provided under Section 6.07 to
receive payment of principal, premium, if any, or interest or Additional
Amounts when due, no Holder of a Note may pursue any remedy with respect to
this Indenture or the Notes unless:


 


(i)            such Holder of a
Note gives the Trustee notice that an Event of Default is continuing;


 


(ii)           the Holders of at
least 25% in aggregate principal amount of the then outstanding Notes make a
request to the Trustee to pursue the remedy;


 


(iii)          such Holder of a
Note offers the Trustee reasonable security or indemnity against any loss,
liability or expense;


 


(iv)           the Trustee does not
comply with such request within 60 days after the receipt of the request and
the offer of security or indemnity; and


 


(v)            during such 60-day
period, the Holders of a majority of the principal amount of the then
outstanding Notes do not give the Trustee a direction inconsistent with the
request.


 


A Holder of a Note may not use this Indenture to prejudice the rights of
another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.


 


Section 6.07         Rights
of Holders of Notes to Receive Payment.


 


Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal of, interest and premium,
Additional Amounts, if any, on the Note, on or after the respective due dates
expressed in the Note (including in connection with an offer to purchase), or
to bring proceedings for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of
Holders of not less than 90% of the then outstanding aggregate principal amount
of the Notes.


 


Section 6.08         Collection
Suit by Trustee.


 


If an Event of Default specified in Section 6.01 occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Issuer for the whole amount of
principal of, interest and premium then owing, Additional Amounts, if any, on
the Notes and interest on overdue principal and, to the extent lawful,
Additional Amounts, interest and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.


 


Section 6.09         Trustee
May File Proofs of Claim.


 


The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Holders of the
Notes allowed in any judicial proceedings relative to the Issuer, a Guarantor
or any other obligor upon the Notes, their creditors or property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims


 


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and
any custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due to it for the compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.06.  To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.06 out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise.  Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder, or
to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.


 


Section 6.10         Priorities.


 


Subject to the terms of the Intercreditor Agreement, all moneys received
by the Trustee under this Indenture shall be held by the Trustee in trust to
apply them (subject to any legal privilege (if any) pursuant to any applicable
Bankruptcy Law or any other applicable law):


 


First:  to the Trustee, its
agents and attorneys for amounts due under Section 7.06, including payment
of all compensation, expense and liabilities incurred, and all advances, if
any, made, by the Trustee and the costs and expenses of collection;


 


Second:  to Holders of Notes
for amounts due and unpaid on the Notes, on the principal of, or premium,
interest, Additional Amounts, if any, on the Notes, pari passu and ratably, without preference or priority of
any kind, according to the amounts due and payable on the Notes, on the
principal of, premium, interest, Additional Amounts, if any, respectively; and


 


Third:  to the Issuer, the
Parent or to such party as a court of competent jurisdiction shall direct.


 


The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.


 


Section 6.11         Undertaking
for Costs.


 


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


 


Section 6.12         Agents


 


The Trustee shall be entitled to require all Paying Agents to act under
its direction following the occurrence and continuance of a Default or Event of
Default.


 


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ARTICLE
7


TRUSTEE


 


Section 7.01         Duties
of Trustee.


 


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


 


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


 


(i)            the duties of the
Trustee shall be determined solely by the express provisions of this Indenture
and the Trustee need perform only those duties that are specifically set forth
in this Indenture and no others, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and


 


(ii)           in the absence of
bad faith on its part, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture.  However,
the Trustee shall examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein).


 


(c)           The Trustee may not be
relieved from liabilities for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:


 


(i)            this Section 7.01(c) does
not limit the effect of Section 7.01(b);


 


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


 


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


 


(d)           Whether or not therein
expressly so provided, every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b) and (c) of
this Section 7.01.


 


(e)           No provision of this
Indenture shall require the Trustee to expend or risk its own funds or incur
any liability.  The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall have offered
to the Trustee security and/or indemnity satisfactory to it against any loss,
liability or expense.


 


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


 


Section 7.02         Rights
of Trustee.


 


(a)           The Trustee may
conclusively rely upon and will be protected in acting or refraining from
acting upon, whether in its original, facsimile or other electronic form, any
document reasonably believed by it to be genuine and to have been signed or
presented by the proper Person.  The
Trustee need not investigate any fact or matter stated in the document
(regardless of whether any such document is subject to any monetary or other
limit).


 


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(b)           Before the Trustee acts
or refrains from acting, it may require an Officer’s Certificate or an Opinion
of Counsel or both.  The Trustee shall
not be liable for any action it takes or omits to take in good faith in
reliance on such Officer’s Certificate or Opinion of Counsel, as the case may
be.  The Trustee may consult with
professional advisors (including counsel) and the advice or written advice of
such professional adviser or any Opinion of Counsel shall be full and complete
authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.


 


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


 


(d)           The Trustee shall not
be liable for any action it takes or omits to take in good faith that it
reasonably believes to be authorized or within the rights or powers conferred
upon it by this Indenture.


 


(e)           Unless otherwise
specifically provided in this Indenture, any demand, request, direction or
notice from the Issuer shall be sufficient if signed by an Officer of the
Issuer.


 


(f)            The Trustee shall be
under no obligation to exercise any of the rights or powers vested in it by
this Indenture at the request or direction of any of the Holders unless such
Holders shall have offered to the Trustee security and/or indemnity (deemed to
be sufficient in the Trustee’s sole discretion) against the losses, liabilities
and expenses that might be incurred by it in compliance with such request or
direction.


 


(g)           The Trustee shall have
no duty to inquire as to the performance of the covenants of the Issuer and/or
its Restricted Subsidiaries in Article 4. 
In addition, the Trustee shall not be deemed to have knowledge of any
Default or Event of Default except:  (i) any
Event of Default occurring pursuant to Section 6.01(i) or 6.01(ii) (provided
it is acting as Paying Agent); and (ii) any Default or Event of Default of
which a Responsible Officer shall have received written notification.  Delivery of reports, information and
documents to the Trustee under Section 4.03 is for informational purposes
only and the Trustee’s receipt of the foregoing shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Issuer’s compliance with any of
their covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officer’s Certificates).


 


(h)           The Trustee shall not
have any obligation or duty to monitor, determine or inquire as to compliance,
and shall not be responsible or liable for compliance with restrictions on
transfer, exchange, redemption, purchase or repurchase, as applicable, of
minimum denominations imposed under this Indenture or under applicable law or
regulation with respect to any transfer, exchange, redemption, purchase or
repurchase, as applicable, of any interest in any Notes.


 


(i)            The rights,
privileges, protections, immunities and benefits given to the Trustee,
including its right to be indemnified and/or secured, are extended to, and
shall be enforceable by The Bank of New York Mellon in each of its capacities
hereunder and by The Bank of New York Mellon (Luxembourg) S.A. and each agent,
custodian and other person employed to act hereunder.  Absent willful misconduct or gross
negligence, each Paying Agent, Registrar and Transfer Agent shall not be liable
for acting in good faith on instructions believed by it to be genuine and from
the proper party.


 


(j)            In the event the
Trustee receives inconsistent or conflicting requests and indemnity from two or
more groups of Holders, each representing less than a majority in aggregate
principal amount of the Notes then outstanding, pursuant to the provisions of
this Indenture, the Trustee, in its sole discretion, may determine what action,
if any, will be taken and shall not incur any liability for its failure to act
until such inconsistency or conflict is, in its reasonable opinion, resolved.


 


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(k)           In no event shall the Trustee be responsible
or liable for any failure or delay in the performance of its obligations
hereunder arising out of or caused by acts of war or terrorism involving the
United States, the United Kingdom or any member state of the European Monetary
Union or any other national or international calamity or emergency (including
natural disasters or acts of God), it being understood that the Trustee shall
use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the
circumstances.


 


(l)            The Trustee is not
required to give any bond or surety with respect to the performance or its
duties or the exercise of its powers under this Indenture or the Notes.


 


(m)          The permissive right of the Trustee to take
the actions permitted by this Indenture shall not be construed as an obligation
or duty to do so.


 


(n)           The Trustee will not be liable to any person
if prevented or delayed in performing any of its obligations or discretionary
functions under this Indenture by reason of any present or future law
applicable to it, by any governmental or regulatory authority or by any
circumstances beyond its control.


 


(o)           The Trustee shall not
be liable for any consequential loss (being loss of business, goodwill,
opportunity or profit of any kind) of the Issuer, the Parent, any Restricted
Subsidiary or any other Person (or, in each case, any successor thereto), even
if advised of it in advance and even if foreseeable.


 


(p)           The Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records and
premises of the Issuer personally or by agent or attorney.


 


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


 


Section 7.03         Individual
Rights of Trustee.


 


The Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Issuer or any Affiliate of
the Issuer with the same rights it would have if it were not Trustee.  However, in the event that the Trustee
acquires any conflicting interest it must eliminate such conflict within 90
days or resign.  Any Agent may do the
same with like rights and duties.  The
Trustee is also subject to Section 7.09.


 


Section 7.04         Trustee’s
Disclaimer.


 


The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture, the Notes, any Note Guarantee,
the Intercreditor Agreement (or any additional intercreditor agreement entered
into in accordance with the terms of the Intercreditor Agreement or this
Indenture), the Collateral, or the Collateral Documents, it shall not be
accountable for the Issuer’s use of the proceeds from the Notes, and it shall
not be responsible for any statement or recital herein or any statement in the
Notes or any other document in connection with the sale of the Notes or
pursuant to this Indenture other than its certificate of authentication.  The Trustee shall be


 


88

















 


entitled
to assume without inquiry that the Issuer has performed in accordance with all
the provisions in the Indenture, unless notified to the contrary.


 


Section 7.05         Notice
of Defaults.


 


Subject to Section 7.02(g), if a Default or Event of Default occurs
and is continuing and if it is known to the Trustee, the Trustee shall mail to
Holders of Notes a notice of the Default or Event of Default within 90 days
after it occurs.  The Trustee may
withhold from holders of the Notes notice of any continuing Default or Event of
Default if it determines that withholding notice is in their interest, except a
Default or Event of Default relating to the payment of principal, interest or
Additional Amounts or premium, if any.


 


Section 7.06         Compensation
and Indemnity.


 


(a)           The Issuer and each Guarantor, jointly and
severally, shall pay to the Trustee from time to time compensation for its
acceptance of this Indenture and services hereunder in accordance with the
Trustee’s signed fee letter.  The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of an
express trust.  The Issuer and each
Guarantor, jointly and severally, shall reimburse the Trustee promptly upon
request for all disbursements, advances (if any) and expenses incurred or made
by it in addition to the compensation for its services.  Such expenses shall include the compensation,
disbursements and expenses of the Trustee’s agents and counsel.


 


(b)           The Issuer and each Guarantor shall indemnify
the Trustee (which for purposes of this Section 7.06 shall include its
officers, directors, employees and agents) against any and all losses,
liabilities or expenses incurred by it arising out of, or in connection with,
the acceptance or administration of its duties under this Indenture, any
Supplemental Indenture or Accession Agreement, the Notes, the Escrow Agreement,
any Intercreditor Agreement, any Collateral Agreement or in any other role
performed by The Bank of New York Mellon under said documents, including the
costs and expenses of enforcing this Indenture against the Issuer and any
Guarantor (including this Section 7.06) and defending itself against any
claim (whether asserted by the Issuer or any Guarantor or any Holder or any
other person) or liability in connection with the exercise or performance of
any of its powers or duties hereunder, except to the extent any such loss, liability
or expense may be attributable to its willful misconduct, negligence or bad
faith.  The Trustee shall notify the
Issuer promptly of any claim for which it may seek indemnity.  Failure by the Trustee to so notify the
Issuer shall not relieve the Issuer or any Guarantor of its obligations
hereunder.  The Issuer or such Guarantor
shall defend the claim and the Trustee shall cooperate in the defense.  The Trustee may have separate counsel and the
Issuer shall pay the reasonable fees and expenses of such counsel.  Neither the Issuer nor any Guarantor need pay
for any settlement made without its consent, which consent shall not be
unreasonably withheld.


 


(c)           The obligations of the Issuer and the
Guarantors under this Section 7.06 shall survive the satisfaction and
discharge of this Indenture.


 


(d)           To secure the Issuer’s and the Guarantors’
payment obligations in this Section 7.06, the Trustee shall have a Lien
prior to the Notes on all money or property held or collected by the Trustee,
except that held in trust to pay principal of, premium, interest, Additional
Amounts, if any, on particular Notes. 
Such Lien shall survive the satisfaction and discharge of this
Indenture.


 


(e)           When the Trustee incurs expenses or renders
services after an Event of Default specified in Section 6.01 occurs, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.


 


For the avoidance of doubt, the rights, privileges, protections,
immunities and benefits given, to the Trustee in this Section 7.06,
including its right to be indemnified, are extended to, and shall be


 


89

















 


enforceable
by The Bank of New York Mellon, as the Trustee and in each of its other
capacities hereunder, and by each agent (including The Bank of New York Mellon
(Luxembourg) S.A.), custodian and other Person employed by the Trustee to act
hereunder.


 


Section 7.07         Replacement
of Trustee.


 


(a)           A resignation or removal of the Trustee and
appointment of a successor Trustee shall become effective only upon the
successor Trustee’s acceptance of appointment as provided in this Section 7.07.


 


(b)           The Trustee may resign in writing at any time
and be discharged from the trust hereby created by so notifying the
Issuer.  The Holders of a majority in
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Issuer in writing.  The Issuer may remove the Trustee if:


 


(i)            the Trustee fails to comply with Section 7.09;


 


(ii)           the Trustee is adjudged a bankrupt or an insolvent
or an order for relief is entered with respect to the Trustee under any
Bankruptcy Law;


 


(iii)          a custodian or public officer takes charge of the
Trustee or its property; or


 


(iv)          the Trustee becomes incapable of acting.


 


(c)           If the Trustee resigns or is removed or if a
vacancy exists in the office of Trustee for any reason, the Issuer shall
promptly appoint a successor Trustee. 
Within one year after the successor Trustee takes office, the Holders of
a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Issuer.


 


(d)           If a successor Trustee does not take office
within 60 calendar days after the retiring Trustee gives notice of resignation
or is removed, the retiring Trustee, the Issuer, or the Holders of at least 10%
in principal amount of the then outstanding Notes may petition any court of
competent jurisdiction for the appointment of a successor Trustee.


 


(e)           If the Trustee, after written request by any
Holder who has been a Holder for at least six months, fails to comply with Section 7.09,
such Holder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.


 


(f)            A successor Trustee
shall deliver a written acceptance of its appointment to the retiring Trustee
and to the Issuer.  Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture.  The successor
Trustee shall mail a notice of its succession to the Holders.  The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, provided all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in Section 7.06.  Notwithstanding replacement of the Trustee
pursuant to this Section 7.07, the Issuer’s obligations under Section 7.06
shall continue for the benefit of the retiring Trustee.


 


Section 7.08         Successor
Trustee by Merger, etc.


 


If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.


 


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Section 7.09         Eligibility;
Disqualification.


 


There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or
state authorities and that has a combined capital and surplus of at least $50
million as set forth in its most recent published annual report of condition.


 


ARTICLE
8

LEGAL DEFEASANCE AND COVENANT DEFEASANCE


 


Section 8.01         Option
to Effect Legal Defeasance or Covenant Defeasance.


 


The Issuer may, at its option evidenced by a resolution of its Board of
Directors set forth in an Officer’s Certificate, at any time, elect to have
either Section 8.02 or 8.03 be applied to all outstanding Notes upon compliance
with the conditions set forth below in this Article 8.


 


Section 8.02         Legal
Defeasance and Discharge.


 


(a)           Upon the Issuer’s
exercise under Section 8.01 of the option applicable to this Section 8.02,
the Issuer and the Guarantors, subject to the satisfaction of the conditions set forth in Section 8.04,
will be deemed to have been discharged from their obligations with respect to
the Notes (including the Note Guarantee) issued under this Indenture and to
have cured all then existing Events of Default on the date the conditions set
forth below are satisfied (hereinafter, “Legal
Defeasance”).  For this
purpose, Legal Defeasance means that the Issuer and the Guarantors shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes (including the Note Guarantee) and with respect to the
Guarantors the Collateral Documents to which it is party, which shall
thereafter be deemed to be “outstanding” only for the purposes of Section 8.05
and the other Sections of this Indenture referred to in clauses (a)(i) and
(ii) below, and to have satisfied all their other obligations under this
Indenture and the Notes, the Note Guarantee, and with respect to the Guarantors
the Collateral Documents to which it is party (and the Trustee, on demand of
and at the expense of the Issuer, shall execute proper instruments
acknowledging the same), except for the following provisions which shall
survive until otherwise terminated or discharged hereunder:


 


(i)            the rights of
Holders of outstanding Notes to receive payments in respect of the principal
of, or interest (including Additional Amounts) or premium, if any, on such
Notes when such payments are due from the trust referred to in Section 8.04;


 


(ii)           the Issuer’s
obligations with respect to such Notes under Article 2 and Section 4.02;


 


(iii)          the rights, powers,
trusts, duties and immunities of the Trustee, and the Issuer’s and the
Guarantors’ obligations in connection therewith; and


 


(iv)           this Article 8;


 


(b)           Subject to compliance with this Article 8,
the Issuer may exercise its option under this Section 8.02 notwithstanding
the prior exercise of its option under Section 8.03.


 


Section 8.03         Covenant
Defeasance.


 


Upon the Issuer’s exercise under Section 8.01 of the option
applicable to this Section 8.03, the Issuer and the Guarantors shall,
subject to the satisfaction of the conditions set forth in Section 8.04,
be released from their respective obligations under the covenants contained in Article 4
(other than Sections 4.01 and 4.04) and Section 5.01(other than Section 5.01(b)(i),
(ii) and (iii)) with respect


 


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to
the outstanding Notes on and after the date the conditions set forth in Section 8.04
are satisfied (hereinafter, “Covenant
Defeasance”), and the Notes shall thereafter be deemed not “outstanding”
for the purposes of any direction, waiver, consent or declaration or act of
Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed “outstanding” for all other purposes
hereunder (it being understood that such Notes shall not be deemed outstanding
for accounting purposes).  For this
purpose, Covenant Defeasance means that the Issuer and the Guarantors may, with
respect to the outstanding Notes and Note Guarantee and with respect to the
Guarantors the Collateral Documents to which it is party, omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference
in any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 6.01, but, except as specified above, the remainder of this
Indenture and such Notes, Note Guarantee and Collateral Documents shall be
unaffected thereby.  In addition, upon
the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.03,
subject to the satisfaction of the conditions set forth in Section 8.04,
the Events of Default set forth in Section 6.01 (except those relating to
payments on the Notes or, solely with respect to the Issuer, clause (x) of
Section 6.01) shall not constitute Events of Default.


 


Section 8.04         Conditions
to Legal or Covenant Defeasance.


 


In order to exercise either Legal Defeasance or Covenant Defeasance with
respect to the Notes issued under this Indenture:


 


(i)            the Issuer must
irrevocably deposit with the Trustee, in trust, for the benefit of the holders
of the Notes, cash in U.S. Dollars, non callable U.S. Government Securities, or
a combination of cash in U.S. Dollars and non callable U.S. Government
Securities (in the case of the Dollar Notes) or cash in euros, non callable
European Government Obligations or a combination of cash in euros and non
callable European Government Obligations (in the case of the Euro Notes), in
amounts as will be sufficient, in the opinion of a nationally recognized
investment bank, appraisal firm or firm of independent public accountants, to
pay the principal of, or interest (including Additional Amounts and premium, if
any) on the outstanding Notes on the stated date for payment thereof or on the
applicable redemption date, as the case may be, and the Issuer must specify
whether the Notes are being defeased to such stated date for payment or to a
particular redemption date;


 


(ii)           in the case of an
election under Section 8.02, the Issuer must deliver to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee confirming that (a) the
Issuer has received from, or there has been published by, the U.S. Internal
Revenue Service a ruling or (b) since the Issue Date, there has been a
change in the applicable U.S. federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel will confirm that, the
Holders of the outstanding Notes will not recognize income, gain or loss for
U.S. federal income tax purposes as a result of such Legal Defeasance and will
be subject to tax on the same amounts, in the same manner and at the same times
as would have been the case if such Legal Defeasance had not occurred;


 


(iii)          in the case of an
election under Section 8.03, the Issuer must deliver to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee confirming that the
Holders of the outstanding Notes will not recognize income, gain or loss for
U.S. federal income tax purposes as a result of such Covenant Defeasance and will
be subject to U.S. federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Covenant Defeasance
had not occurred;


 


(iv)           the Issuer must
deliver to the Trustee an Officer’s Certificate stating that the deposit was
not made by the Issuer with the intent of preferring the Holders of Notes over
the


 


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other
creditors of the Issuer with the intent of defeating, hindering, delaying or
defrauding any creditors of the Issuer or others; and


 


(v)            the Issuer must
deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel,
subject to customary assumptions and qualifications, each stating that all
conditions precedent relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.


 


Section 8.05         Deposited Money, U.S. Government Securities and European Government
Obligations Held in Trust; Other Miscellaneous Provisions.


 


(a)           Subject to Section 8.06, all money,
non-callable U.S. Government Securities and non-callable European Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.05,
the “Trustee”) pursuant to Section 8.04
in respect of the outstanding Notes shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Notes and this Indenture, to
the payment, either directly or through any Paying Agent (including the Issuer
acting as Paying Agent) as the Trustee may determine, to the Holders of the
Notes of all sums due and to become due thereon in respect of principal,
premium, interest, Additional Amounts, if any, but such money need not be
segregated from other funds except to the extent required by law.


 


(b)           The Issuer shall pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against the
cash, U.S. Government Securities or European Government Obligations deposited
pursuant to Section 8.04 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of the outstanding Notes.


 


(c)           Notwithstanding anything in this Article 8
to the contrary, the Trustee shall deliver or pay to the Issuer from time to
time upon the request of the Issuer any money, non-callable U.S. Government
Securities or non-callable European Government Obligations held by it as
provided in Section 8.04 which, in the opinion of a nationally recognized
investment bank, appraisal firm or firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee (which
may be the opinion delivered under Section 8.04(i)), are in excess of the
amount thereof that would then be required to be deposited to effect a Legal
Defeasance or Covenant Defeasance, as applicable, of the type and scope
originally effected by the Issuer pursuant to this Article 8.


 


Section 8.06         Repayment
to Issuer.


 


Any money deposited with the Trustee or any Paying Agent, or then held
by the Issuer, in trust for the payment of the principal of, premium, interest
or Additional Amounts on any Note and remaining unclaimed for two years after
such principal, interest (and Additional Amounts, or premium, if any), has become
due and payable shall be paid to the Issuer on its request or (if then held by
the Issuer) shall be discharged from such trust; and the Holder of such Note
shall thereafter look only to the Issuer for payment thereof, and all liability
of the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Issuer as trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may, at
the expense of the Issuer, give notice to the Holders in accordance with Section 13.01
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such notification or
publication, any unclaimed balance of such money then remaining will be repaid
to the Issuer.


 


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Section 8.07         Reinstatement.


 


If the Trustee or
Paying Agent is unable to apply any U.S. Dollars, euro, non-callable U.S.
Government Securities or non-callable European Government Obligations in
accordance with Section 8.02 or 8.03, as the case may be, by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the Issuer’s obligations under
this Indenture and the Notes and the Guarantors’ obligations under the Note
Guarantees and any Collateral Documents to which it is party shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.02
or 8.03 until such time as the Trustee or Paying Agent is permitted to apply
all such money in accordance with Section 8.02 or 8.03, as the case may
be; provided, however, that, if
the Issuer makes any payment of principal of, premium, interest or Additional
Amounts on any Note following the reinstatement of its obligations, the Issuer
shall be subrogated to the rights of the Holders of such Notes to receive such
payment from the money held by the Trustee or Paying Agent.


 


ARTICLE 9

AMENDMENT, SUPPLEMENT AND WAIVER


 


Section 9.01         Without Consent of Holders of Notes.


 


Notwithstanding Section 9.02
of this Indenture, the Issuer, the Guarantors, the Trustee and the Security
Agent may amend or supplement this Indenture, the Notes or the Note Guarantees,
any Collateral Document and the Intercreditor Agreement without the consent of
any Holder of Notes:


 


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


 


(ii)           to provide for uncertificated Notes
in addition to or in place of certificated Notes;


 


(iii)          to provide for the assumption of the
Issuer’s or a Guarantor’s obligations to the Holders of the Notes and Note
Guarantees pursuant to a transaction governed by Section 5.01;


 


(iv)           to make any change that would provide
any additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights hereunder of any Holder in any material
respect;


 


(v)            to conform the text of this
Indenture, the Note Guarantees, the Collateral Documents or the Notes to any
provision of the “Description of Notes” section of the Offering Memorandum, to
the extent that such provision in that “Description of Notes” was intended to
be a verbatim recitation of a provision of this Indenture, the Note Guarantees,
the Collateral Documents or the Notes;


 


(vi)           to enter into additional or
supplemental Collateral Documents;


 


(vii)          to release Collateral in accordance
with the terms of this Indenture and the Collateral Documents or to release any
Note Guarantee in accordance with the terms of this Indenture;


 


(viii)         to provide for the issuance of
Additional Notes in accordance with the limitations set forth in this Indenture
as of the Issue Date;


 


(ix)           to allow any Guarantor to execute a
supplemental indenture and/or a Note Guarantee with respect to the Notes;


 


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(x)            to provide for uncertified Notes in
addition to or in place of certified Notes (provided that the uncertified Notes
are issued in registered form for purposes of Section 163(f) of Title
26 the U.S. Code, in a manner such that the uncertified Notes are described in Section 163(f)(2)(B) of
the U.S. Code);


 


(xi)           to evidence and provide the
acceptance of the appointment of a successor Trustee under this Indenture; or


 


(xii)          to add additional parties to the
Intercreditor Agreement or any Collateral Documents to the extent permitted
under this Indenture and thereunder.


 


Upon the request of
the Issuer and upon receipt by the Trustee of the documents described in Section 7.02(b),
the Trustee and the Security Agent will join with the Issuer and the Guarantors
in the execution of any amended or supplemental indenture or other document
authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee and the Security Agent will not be obligated to enter into such amended
or supplemental indenture or other document that affects its own rights, duties
or immunities under this Indenture.


 


Section 9.02         With
Consent of Holders of Notes.


 


Except as provided
otherwise in Section 9.01 and Section 9.02, the Issuer, the
Guarantors, the Trustee and the Security Agent may amend or supplement this
Indenture (including, without limitation, Section 4.10 and Section 4.14),
the Notes, the Note Guarantees, the Intercreditor Agreement or the Collateral
Documents with the consent of the Holders of at least a majority in aggregate
principal amount of the Notes then outstanding (including, without limitation,
Additional Notes, if any) voting as a single class (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, the Notes), and subject to Section 6.04 and Section 6.07
hereof, any existing Default or Event of Default (other than a continuing
Default or Event of Default in the payment of the principal of, interest and
premium and Additional Amounts, if any, on the Notes, except a payment default
resulting from an acceleration that has been rescinded) or compliance with any
provision of this Indenture, the Notes, the Note Guarantees, the Intercreditor
or the Collateral Documents may be waived with the consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes
(including, without limitation, Additional Notes, if any) voting as a single
class (including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, the Notes); provided that, if any amendment, waiver or
other modification will only affect one series of the Notes, only the consent
of the Holders of a majority in aggregate principal amount of the then outstanding
Notes of such series shall be required.


 


Upon the request of
the Issuer, and upon receipt by the Trustee of the documents described in Section 7.02(b),
the Trustee and the Security Agent will join with the Issuer and the Guarantors
in the execution of such amended or supplemental indenture or other document
unless such amended or supplemental indenture or other document directly
affects the Trustee’s own rights, duties or immunities under this Indenture, in
which case the Trustee may in its discretion, but will not be obligated to,
enter into such amended or supplemental indenture or other document.


 


It shall not be
necessary for the consent of the Holders of Notes under this Section 9.02
to approve the particular form of any proposed amendment, supplement or waiver,
but it is sufficient if such consent approves the substance thereof.


 


After an amendment,
supplement or waiver under this Section 9.02 becomes effective, the Issuer
will mail or otherwise deliver to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver.  Any failure of the Issuer to mail or
otherwise deliver such notice, or any defect therein, will not, however, in any
way impair or affect the validity of any such amended or supplemental indenture
or waiver.  Subject to Sections 6.04 and
6.07, the 


 


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Holders of a majority in aggregate
principal amount of the Notes then outstanding, voting as a single class, may
waive compliance in a particular instance by the Issuer with any provision of
this Indenture, the Notes, any Note Guarantee, the Intercreditor Agreement (or
any additional intercreditor agreement entered into in accordance with the
terms of this Indenture) or the Collateral Documents.  However, unless consented to by the Holders
of at least 90% of the aggregate principal amount of then outstanding Notes
(including, without limitation, Additional Notes, if any) voting as a single
class (including, without limitation, consents obtained in connection with a
tender offer or exchange offer for, or purchase of, the Notes), without the
consent of each Holder affected, an amendment, supplement or waiver under this Section 9.02
may not (with respect to any Notes held by a non-consenting Holder):


 


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


 


(ii)           reduce the principal of or change the
fixed maturity of any Note or alter or waive any of the provisions with respect
to the redemption of the Notes (except with respect to Sections 4.10 and 4.14
hereof);


 


(iii)          reduce the rate of or change the time
for payment of interest, including default interest, on any Note;


 


(iv)           impair the right of any Holder of
Notes to receive payment of principal of and interest on such Holder’s Notes on
or after the due dates thereof or to institute suit for the enforcement of any
payment on or with respect to such Holder’s Notes or any Note Guarantee in
respect thereof;


 


(v)            waive a Default or Event of Default
in the payment of principal of, or interest, Additional Amounts or premium, if
any, on, the Notes (except a rescission of acceleration of the Notes by the
Holders of at least a majority in aggregate principal amount of the then
outstanding Notes and a waiver of the Payment Default that resulted from such
acceleration);


 


(vi)           make any Note payable in money other
than that stated in the Notes;


 


(vii)          make any change in the provisions of
this Indenture relating to waivers of past Defaults or the rights of Holders of
Notes to receive payments of principal of, or interest, Additional Amounts or
premium, if any, on, the Notes;


 


(viii)         waive a redemption payment with respect
to any Note (other than a payment required by Sections 4.10 or 4.14);


 


(ix)           release any Guarantor from any of its
obligations under its Note Guarantee or the Indenture, except in accordance
with the terms of this Indenture and the Intercreditor Agreement (or any
additional intercreditor agreement entered into in accordance with the terms of
this Indenture);


 


(x)            release the Lien on Collateral
granted for the benefit of the Holders of Notes, except in accordance with the
terms of the Collateral Documents, this Indenture and the Intercreditor
Agreement, or


 


(xi)           make any change in the preceding
amendment and waiver provisions.


 


Notwithstanding the
immediately preceding paragraph of this Section 9.02, any Note Guarantee
or Lien on Collateral will be released in connection with any sale or other
disposition of property or assets (including Capital Stock) that does not
violate Section 4.07 or Section 4.10 of this


 


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Indenture as such provision or
covenant may be amended from time to time with the consent of the Holders of at
least a majority in aggregate principal amount of the Notes then outstanding
and in such case the consent of at least a majority in aggregate principal
amount of the Notes then outstanding will suffice for such release.


 


For the purposes of
calculating the aggregate principal amount of Notes that have consented to or
voted in favor of any amendment, supplement or waiver, the Euro Equivalent of
the principal amount of any Dollar Notes shall be as of the Issue Date.


 


Section 9.03         Revocation and Effect of Consents.


 


Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder of a Note
is a continuing consent by the Holder of a Note and every subsequent Holder of
a Note or portion of a Note that evidences the same debt as the consenting
Holder’s Note, even if notation of the consent is not made on any Note.  However, any such Holder of a Note or
subsequent Holder of a Note may revoke the consent as to its Note if the
Trustee receives written notice of revocation before the date of the amendment,
supplement or waiver becomes effective. 
An amendment, supplement or waiver becomes effective in accordance with
its terms and thereafter binds every Holder.


 


Section 9.04         Notation on or Exchange of Notes.


 


The Trustee may
place an appropriate notation about an amendment, supplement or waiver on any
Note thereafter authenticated.  The
Issuer, in exchange for Notes, may issue and the Trustee shall, upon receipt of
an Authentication Order, authenticate new Notes that reflect the amendment, supplement
or waiver.


 


Failure to make the
appropriate notation or issue a new Note will not affect the validity and
effect of such amendment, supplement or waiver.


 


Section 9.05         Trustee and the Security Agent to Sign Amendments.


 


The Trustee and the
Security Agent will sign any amended or supplemental indenture or other
document authorized pursuant to this Article 9 if the amendment or
supplement or other document does not adversely affect the rights, duties,
liabilities or immunities of the Trustee or the Security Agent as
applicable.  In executing any amended or
supplemental indenture or other document, the Trustee and the Security Agent
will be entitled to receive and (subject to Section 7.01) will be fully
protected in relying upon, in addition to the documents required by Section 13.02
(i) indemnity deemed satisfaction to it in its sole discretion; and (ii) an
Officer’s Certificate and an Opinion of Counsel stating that the execution of
such amended or supplemental indenture or other document is authorized or
permitted by this Indenture and that such amendment is the legal, valid and
binding obligation of the Issuer (and any Guarantor) enforceable against them
in accordance with its terms, subject to customary exceptions, and complies
with the provisions of this Indenture.


 


ARTICLE 10

COLLATERAL AND SECURITY


 


Section 10.01       Security Documents.


 


The due and punctual
payment of the principal of, interest, Additional Amounts and premium, if any,
on the Notes and any Note Guarantee when and as the same shall be due and
payable, whether on an interest payment date, at maturity, by acceleration,
repurchase, redemption or otherwise, and interest on the overdue principal of
and interest and Additional Amounts (to the extent permitted by law), if any,
on the Notes and any Note Guarantee and performance of all other obligations of
the Issuer and any Guarantor to the Holders of Notes, the Trustee and the
Security Agent under this Indenture, the Notes and any Note Guarantee,
according to the terms hereunder or thereunder, are


 


97

















 


secured as provided in the Collateral
Documents and the Intercreditor Agreement. 
Each Holder of Notes, by its acceptance thereof, consents and agrees to
the terms of the Collateral Documents and the Intercreditor Agreement and any
additional intercreditor agreement (including, without limitation, the
provisions providing for foreclosure and release of Collateral and authorizing
the Security Agent to enter into any Collateral Document on its behalf) as the
same may be in effect or may be amended from time to time in accordance with
its terms and authorizes and directs the Security Agent to enter into the
Collateral Documents and the Intercreditor Agreement and any additional
intercreditor agreement and to perform its obligations and exercise its rights
thereunder in accordance therewith.  The
Issuer will deliver to the Trustee copies of all documents delivered to the
Security Agent pursuant to the Collateral Documents, and the Issuer and the
Parent will, and the Parent will cause each of its Restricted Subsidiaries to,
do or cause to be done all such acts and things as may be required, or which
the Security Agent from time to time may reasonably request, to assure and
confirm to the Trustee that the Security Agent holds, for the benefit of the
Trustee and the Holders, duly created, enforceable and perfected Liens as
contemplated hereby and by the Collateral Documents and the Intercreditor
Agreement, so as to render the same available for the security and benefit of
this Indenture and of the Notes and any Note Guarantee secured hereby,
according to the intent and purposes herein expressed.  The Issuer and any Guarantor will each take,
and will cause their respective Restricted Subsidiaries to take (including as
may be requested by the Trustee) any and all actions reasonably required to
cause the Collateral Documents and the Intercreditor Agreement to create and
maintain, as security for the Obligations of the Issuer and any Guarantor
hereunder, in respect of the Collateral, valid and enforceable perfected Liens
in and on such Collateral ranking in right and priority of payment as set forth
in the Intercreditor Agreement and subject to no other Liens other than as
permitted by the terms of this Indenture and the Intercreditor Agreement.


 


Section 10.02       Release of Collateral.


 


Collateral may be
released from the Liens and security interests created by the Collateral
Documents at any time or from time to time in accordance with the provisions of
the Collateral Documents, the Intercreditor Agreement and this Indenture.  In addition, and subject to the terms and
conditions of the relevant Collateral Documents and the Intercreditor
Agreement, upon the request of the Issuer pursuant to an Officer’s Certificate
and Opinion of Counsel certifying that all conditions precedent hereunder have
been met and (at the sole cost and expense of the Issuer) the Trustee shall, if
so requested by the Security Agent or the Issuer or otherwise required by the
Intercreditor Agreement, authorize the release of Collateral from the security
created by the Collateral Documents that is sold, conveyed or disposed of in
compliance with the provisions of this Indenture.  Upon receipt of such Officer’s Certificate
the Security Agent shall execute, deliver or acknowledge any necessary or
proper instruments of termination, satisfaction or release to evidence the
release of any Collateral permitted to be released pursuant to this Indenture
or the Collateral Documents and the Intercreditor Agreement and any Additional
Intercreditor Agreement.


 


Section 10.03       Authorization of Actions to Be Taken by the Trustee.


 


Upon reasonable
request of the Trustee, but without any affirmative duty on the Trustee to do
so, the Issuer and Guarantors shall execute and deliver such further
instruments and do such further acts as may be reasonably necessary to carry
out more effectively the purposes of this Indenture.


 


Subject to the
provisions of Section 7.01 and 7.02 and the terms of the Collateral
Documents and the Intercreditor Agreement (including any consent of the Holders
required thereunder), the Trustee may, in its sole discretion, direct, on
behalf of the Holders of Notes, the Security Agent to take all actions it deems
necessary or appropriate in order to:


 


(i)            enforce any of the terms of the
Collateral Documents or the Intercreditor Agreement; and


 


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(ii)           collect and receive any and all
amounts payable in respect of the Obligations of the Issuer or any Guarantor
hereunder.


 


Subject to the
provisions hereof, the Collateral Documents, the Intercreditor Agreement and
any Additional Intercreditor Agreement, the Trustee and/or the Security Agent
will have power to but shall not be required to institute and maintain such
suits and proceedings as it may deem expedient to prevent any impairment of the
Collateral by any acts that may be unlawful or in violation of the Collateral
Documents, the Intercreditor Agreement or this Indenture, and such suits and
proceedings as the Trustee may deem expedient to preserve or protect its
interests and the interests of the Holders of Notes in the Collateral
(including power to institute and maintain suits or proceedings to restrain the
enforcement of or compliance with any legislative or other governmental
enactment, rule or order that may be otherwise invalid if the enforcement
of, or compliance with, such enactment, rule or order would impair the
security interest hereunder or be prejudicial to the interests of the Holders
of Notes or of the Trustee and/or the Security Agent).


 


Section 10.04       Authorization of Receipt of Funds by the Trustee
Under the Collateral Documents.


 


The Trustee and/or
the Security Agent is authorized to receive any funds for the benefit of the
Holders of Notes distributed under the Collateral Documents or Intercreditor
Agreement, and to make further distributions of such funds to the Holders of
Notes according to the provisions of this Indenture and the Intercreditor
Agreement.


 


Section 10.05       Termination of Security Interest.


 


The Trustee shall,
at the request of the Issuer upon having provided the Trustee an Officer’s
Certificate (which shall certify, among other things, that all action under the
relevant Collateral Document(s) with respect to the release of the
security thereunder has been taken and the release of the Collateral complies
with the terms of the relevant Collateral Document(s)) and Opinion of Counsel
certifying compliance with this Section 10.05, execute and deliver a
certificate to the Security Agent releasing the relevant Collateral or other
appropriate instrument evidencing such release (in the form provided by and at
the expense of the Issuer):


 


(i)            in connection with any sale or other
disposition of property and assets, if such sale or other disposition does not
violate Section 4.10 hereof;


 


(ii)           with respect to a Guarantor that is
released from its Note Guarantee pursuant to the terms of this Indenture and
the Intercreditor Agreement, the release of property and assets, and Capital
Stock of such Guarantor;


 


(iii)          in accordance with Article 9
hereof;


 


(iv)           upon the full and final payment and
performance of all Obligations of the Issuer and the Guarantors under this
Indenture and the Notes;


 


(v)            upon a Legal Defeasance or Covenant
Defeasance as provided for in Article 8 or satisfaction and discharge of
this Indenture as provided for in Article 12;


 


(vi)           if the Issuer or the Parent
designates any Restricted Subsidiary to be an Unrestricted Subsidiary pursuant
to the terms of this Indenture, the release of property and assets of such
Restricted Subsidiary;


 


(vii)          during a Suspension Period pursuant to
Section 4.21 hereof; or


 


(viii)         in connection with an enforcement sale
under the Intercreditor Agreement.


 


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Section 10.06       Further Action.


 


Upon the terms and
subject to the conditions of this Indenture, 
the Collateral Documents and the Intercreditor Agreement, the Issuer and
any Guarantor shall use its respective best efforts to take, or cause to be
taken, all appropriate action, and to do or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the security over the Collateral as contemplated
by the Collateral Documents and the Intercreditor Agreement.


 


Notwithstanding any
other provision of this Indenture, the Trustee has no responsibility for the
validity, perfection, priority or enforceability of any Lien, Collateral,
Collateral Documents or other security interest.


 


Section 10.07       [Reserved]


 


ARTICLE 11

NOTE GUARANTEES


 


Section 11.01       Guarantee.


 


(a)           Subject to this Article 11, each
of the Guarantors hereby, jointly and severally, unconditionally guarantees to
each Holder of a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Notes or the obligations of the Issuer
hereunder or thereunder, that:


 


(i)            the principal of, Additional Amounts
and premium, if any, and interest on, the Notes will be promptly paid in full
when due, whether at maturity, by acceleration, redemption or otherwise, and
interest on the overdue principal of and interest, Additional Amounts and
premium, if any, on the Notes (to the extent permitted by law) and all other
obligations of the Issuer to the Holders or the Trustee hereunder or thereunder
will be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; and


 


(ii)           in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, that same
will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise.


 


Failing payment when due of any
amount so guaranteed or any performance so guaranteed for whatever reason, the
Guarantors will be jointly and severally obligated to pay the same
immediately.  Each Guarantor agrees that
this is a guarantee of payment and not a guarantee of collection.


 


(b)           Each Guarantor hereby agrees that its
obligations hereunder are unconditional, irrespective of the validity,
regularity or enforceability of the Notes or this Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder of the Notes
with respect to any provisions hereof or thereof, the recovery of any judgment
against the Issuer, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor.  Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Issuer, any right to require a proceeding first
against the Issuer, protest, notice and all demands whatsoever and covenant
that this Note Guarantee will not be discharged except by complete performance
of the obligations contained in the Notes and this Indenture.


 


(c)           If any Holder or the Trustee is
required by any court or otherwise to return to or for the benefit of the
Issuer, the Guarantors or any custodian, trustee, liquidator or other similar
official


 


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acting in relation to either
the Issuer or the Guarantors, any amount paid by either the Issuer or the
Guarantors to the Trustee or such Holder, this Note Guarantee, to the extent
theretofore discharged, will be reinstated in full force and effect.


 


(d)           Each Guarantor agrees that it will
not be entitled to any right of subrogation in relation to the Holders in
respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby.  Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand,


 


(i)            the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article 6 hereof for the purposes
of this Note Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and


 


(ii)           in the event of any declaration of
acceleration of such obligations as provided in Article 6, such
obligations (whether or not due and payable) will forthwith become due and
payable by the Guarantors for the purpose of this Note Guarantee.  The Guarantors will have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such
right does not impair the rights of the Holders under the Note Guarantee.


 


Section 11.02       Limitation on Guarantor Liability.


 


(a)           Each
Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it
is the intention of all such parties that the Note Guarantee of such Guarantor
not constitute a fraudulent transfer or conveyance, for purposes of Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar national, federal, local or state law or voidable preference,
financial assistance or improper corporate benefit, or violate the corporate
purpose of the relevant Guarantor or any applicable capital maintenance or
similar laws or regulations affecting the rights of creditors generally under
any applicable law or regulation to the extent applicable to any Note
Guarantee.  To effectuate the foregoing
intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree
that the obligations of such Guarantor will be limited to the maximum amount
that will, after giving effect to such maximum amount and all other contingent
and fixed liabilities of such Guarantor that are relevant under such laws, and
after giving effect to any collections from, rights to receive contribution
from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article 11, result in the
obligations of such Guarantor under its Note Guarantee not constituting either
a fraudulent transfer or conveyance or voidable preference, financial
assistance or improper corporate benefit, or violating the corporate purpose of
the relevant Guarantor or any applicable capital maintenance or similar laws or
regulations affecting the rights of creditors generally under any applicable
law or regulation.


 


(b)           Limitations for Austrian Guarantors


 


(i)            Nothing in this Indenture shall be
construed to create any obligation of an Austrian Guarantor to act in violation
of mandatory Austrian capital maintenance rules (Kapitalerhaltungsvorschriften), including,
without limitation, § 82 et seq. of the Austrian Act on Limited Liability
Companies (Gesetz über Gesellschaften mit
beschränkter Haftung — GmbHG) the GmbHG and § 52 et seq. of the
Austrian Act on Joint Stock Companies (Aktiengesetz-AktG)
(the “Austrian Capital Maintenance Rules”),
and all obligations of any Austrian Guarantor under this Indenture shall be
limited in accordance with the Austrian Capital Maintenance Rules;


 


(ii)           If and to the extent the payment
obligations of an Austrian Guarantor under this Indenture would not be
permitted under the Austrian Capital Maintenance Rules or would render the
directors of an Austrian Guarantor personally liable pursuant to Austrian law
to any of the creditors of that Austrian Guarantor as a consequence of paying
such amount, then such


 


101

















 


payment
Obligations shall be limited to the maximum amount permitted to be paid which
would not trigger such directors’ liability, provided
that the amount payable shall not be less than (i) that
Austrian Guarantor’s balance sheet profit (including retained earnings) (Bilanzgewinn) as defined in § 224 (3) lit
A no. IV of the Austrian Enterprise Code (Unternehmensgesetzbuch—UGB)
as calculated by reference to the most recent (audited, if applicable)
financial statements of that Austrian Guarantor then available plus (ii) any
other amounts which are freely available for distribution to the shareholder(s) of
that Austrian Guarantor under the GmbHG or AktG (as the case may be) and the
UGB at the time or times payment under the Note Guarantee is demanded from that
Austrian Guarantor plus, (iii) to the extent applicable, the aggregate
amount of any proceeds from the issuance of the Notes made available to that
Austrian Guarantor and/or its subsidiaries plus
(iv) the amount of any Indebtedness capable of being discharged by way of
setting-off that Austrian Guarantor’s recourse claim following enforcement of
this Indenture against any Indebtedness owed by that Austrian Guarantor to the
Issuer.


 


(c)           Limitations for Belgian Guarantors


 


In the case
of a Belgian Guarantor, with respect to the obligations of the Issuer or any
Guarantor under this Indenture which is not a Subsidiary of such Belgian
Guarantor, its liability under this Article 11 shall be limited, at any
time, to a maximum aggregate amount equal to the greater of:


 


(i)            an amount equal to 90% of such
Belgian Guarantor’s net assets (as determined in accordance with article 617 of
the Belgian Companies Code and accounting principles generally accepted in
Belgium, but not taking intra-group debt into account as debts) as shown by its
most recent audited annual financial statements on the date on which the
relevant demand is made; and


 


(ii)           the aggregate amount outstanding on
the date on which the relevant demand is made of (i) the principal amount
made available to such Belgian Guarantor from the proceeds of the Notes, and (ii) the
aggregate amount of any intra-group loans or facilities made to it by any
Subsidiary of the Parent directly and/or indirectly using all or part of the
proceeds of the Notes (whether or not such intra-group loan is retained by the
Belgian Guarantor for its own purposes or on-lent to a Subsidiary of such
Belgian Guarantor, but for the avoidance of doubt excluding any intra-group
loan on-lent to any other Subsidiary of the Parent).


 


(d)           Limitations for German Guarantors


 


(i)            Notwithstanding any other provision
of this Indenture, each Holder, by its acceptance of the Notes, and the Trustee
(and its successors and assigns) agree not to enforce the Note Guarantee
granted under this Article 11 against any Guarantor which is a German
limited liability company (Gesellschaft mit
beschränkter Haftung—GmbH) or a limited partnership (Kommanditgesellschaft) with a GmbH as its sole general partner (Komplementär) (GmbH & Co. KG) (the “Affected German Guarantor”), to the extent that payment
under the Note Guarantee would:


 


(A)           where the Affected German Guarantor is a GmbH, cause the Affected German Guarantor’s
net assets as at the date of enforcement of the Note Guarantee (the “Relevant Net Assets”) to fall below its
registered share capital (Stammkapital);
or


 


(B)           where the Affected German Guarantor is a GmbH & Co. KG, give rise to a
claim against its general partner (Komplementär)
exceeding the latter’s Relevant Net Assets not required to cover its registered
share capital (Stammkapital), 


 


102

















 


and in each case, thereby cause a violation of section
30 of the German Limited Liabilities Company Act (as amended from time to time)
or, where the Relevant Net Assets are already lower than its registered share
capital cause such amount to be further reduced.


 


(ii)           For the purposes of the calculation
of the limitation pursuant to Section 11.02(d)(i), the following balance
sheet items shall be adjusted as follows:


 


(A)           the amount of any increase of the stated share capital (Stammkapital), of the Affected German
Guarantor or its general partner (Komplementär),
effected after the date of this Indenture without the prior written consent of
the Security Agent shall be deducted from the relevant stated share capital;


 


(B)           loans provided to the Affected German Guarantor by the
Parent or a Subsidiary of the Parent shall be disregarded if such loans are
subordinated within the meaning of Section 39, subsection 2 of the German
Insolvency Code (InsO); and


 


(C)          loans and other liabilities incurred in violation of the
provisions of this Indenture shall be disregarded.


 


(iii)          In case of an enforcement of the Note
Guarantee, the Affected German Guarantor shall (upon the written request of the
Security Agent and to the extent legally permitted) for the purposes of the
determination of the Relevant Net Assets dispose of all assets which are shown
in the balance sheet of the Affected German Guarantor with a book value (Buchwert) which is significantly lower
than the market value of such assets to the extent that such assets are not
necessary for the Affected German Guarantor’s business (nicht betriebsnotwendig).


 


(iv)           The limitations set forth under Section 11.02(d)(i) through
(iii) do not apply:


 


(A)           to any amounts due and payable under the Note Guarantee
which relate to funds which have been on-lent to the Affected German Guarantor
or to any of its Subsidiaries and are still outstanding; or


 


(B)           if, following notification by the Security Agent to the
Relevant German Guarantor of claims raised under the Note Guarantee, the
Affected German Guarantor does not provide evidence satisfactory to the
Security Agent (acting reasonably), including in particular interim financial
statements, within 30 days after the date of such notification, or if after
receipt of such unaudited statements notification is given by the Security
Agent to the Affected German Guarantor to provide audited financial statements
up to the end of that same calendar month and such audited financial statements
are not provided within 60 days after the date of such notification.


 


(v)            No reduction of the amount
enforceable under the Note Guarantee in accordance with the above limitations
shall prejudice the rights of any Holder or the Trustee to continue enforcing
the Note Guarantee (subject always to the operation of the limitation set out
above at the time of such enforcement) until full satisfaction of the
Obligations guaranteed under the relevant Note Guarantee.


 


(e)           Limitations for Dutch Guarantors


 


Notwithstanding any other provision of this Indenture
and without prejudice to the general applicability of Section 11.01 of
this Indenture, the guarantee, indemnity and other obligations of any Dutch
Guarantor under this Article 11 shall be deemed not to be given to the
extent that the same


 


103

















 


would
constitute unlawful financial assistance within the meaning of article 2:98c
and/or 2:207c of the Dutch Civil Code or any other applicable financial
assistance rules under any applicable law and the provisions of this Article 11
and other provisions of this Indenture shall be construed accordingly.


 


(f)            Limitations for Finnish Guarantors


 


(i)            The liabilities and obligations
guaranteed by Sappi Finland in its capacity as Guarantor under this Indenture shall
not include, and Sappi Finland shall not be liable to perform or be deemed to
have undertaken any liability or obligation in respect of, any liability or
obligation the guaranteeing of which would be contrary to or would constitute a
breach of mandatory provisions or principles of Finnish law, including without
limitation (1) Chapter 13, Section 1 of the Finnish Companies
Act (1.9.2006/624, as amended) regulating distribution of assets and (2) other
applicable mandatory provisions of Finnish corporate law.


 


(ii)           Furthermore, the maximum amount
payable by Sappi Finland at any time under this Indenture shall not exceed an
amount equal to the higher of the following:


 


(A)           The aggregate amount of (1) an amount no greater than
the aggregate amount owing by Sappi Finland (directly or indirectly) to the
Issuer under any intra-group loan agreement or loan agreements between Sappi
Finland and the Issuer (or any direct or indirect Subsidiary of the Issuer)
existing on the Completion Date and (2) the aggregate amount of funds
available for distribution as a dividend of Sappi Finland according to the
Companies Act on the date on which any guaranteed party exercises any of its
rights, remedies, powers or discretions under the Note Guarantee;


 


(B)           the aggregate amount of (1) the aggregate amount
owing by Sappi Finland (directly or indirectly) to the Issuer under any
intra-group loan agreement or loan agreements between Sappi Finland and the
Issuer (or any direct or indirect Subsidiary of the Issuer) existing on the
date on which the Trustee exercises any of its rights, remedies, powers or
discretions under the Note Guarantee provided by Sappi Finland pursuant to this
Indenture and (2) the aggregate amount of funds available for distribution
as a dividend of Sappi Finland according to the Companies Act on the date on
which any guaranteed party exercises any of its rights, remedies, powers or
discretions under any guarantee provided by Sappi Finland pursuant to this
Indenture; or


 


(C)          any higher amount (based on any direct or indirect economic
and operational benefit to Sappi Finland derived under this Indenture) to the
extent not prohibited by Chapter 13, Section 1 of the Finnish Companies
Act,


 


in
each case less the aggregate amount at that time already paid or payable by Sappi
Finland under any claim already made under its Note Guarantee.


 


Section 11.03       Execution and Delivery of Note Guarantee.


 


To evidence its Note
Guarantee set forth in Section 11.01, each Guarantor hereby agrees that a
notation of such Note Guarantee substantially in the form attached as Exhibit D hereto will be endorsed
by an Officer or a Director of such Guarantor on each Note authenticated and
delivered by the Trustee and that this Indenture will be executed on behalf of
such Guarantor by one of its Officers or Directors.


 


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


 


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If
an Officer or Director whose signature is on this Indenture or on the Note
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Note Guarantee is endorsed, the Note Guarantee will be valid
nevertheless.


 


The
delivery of any Note by the Trustee, after the authentication thereof
hereunder, will constitute due delivery of the Note Guarantee set forth in this
Indenture on behalf of the Guarantors.


 


The
Parent shall cause any Restricted Subsidiary so required by Section 4.16,
to execute a Supplemental Indenture in the form of Exhibit E  to this Indenture and a
notation of Note Guarantees in the form of Exhibit D
to this Indenture in accordance with Section 4.16 and this Article 11.


 


Section 11.04                     Releases.


 


The
Note Guarantee of a Guarantor shall be released:


 


(i)                                     with respect to a
Guarantor other than the Parent, in connection with any sale or other
disposition of all or substantially all of the assets of that Guarantor
(including by way of merger or consolidation) to a Person that is not (either
before or after giving effect to such transaction) the Parent or a Restricted
Subsidiary if such sale or other disposition does not violate Section 4.10
hereof;


 


(ii)                                  with respect to a
Guarantor other than the Parent, in connection with any sale or other
disposition of Capital Stock of that Guarantor to a Person that is not (either
before or after giving affect to such transaction) the Parent or a Restricted
Subsidiary, if such sale or other disposition does not violate with Section 4.10
hereof and that Guarantor ceases to be a Restricted Subsidiary as a result of
such sale or other disposition;


 


(iii)                               if the Parent
designates any Restricted Subsidiary to be an Unrestricted Subsidiary pursuant
to the terms of this Indenture;


 


(iv)                                upon the full
and final payment and performance of all Obligations of the Issuer and the
Guarantors under this Indenture and the Notes;


 


(v)                                   with respect
to a Guarantor other than the Parent, upon the release or discharge of the Note
Guarantee by such Guarantor of the Indebtedness that resulted in the creation
of such Note Guarantee pursuant to Section 4.16 hereof (but not the
release of any Note Guarantee in effect on the Escrow Release Date);


 


(vi)                                upon Legal
Defeasance or Covenant Defeasance as provided for in Article 8 or
satisfaction and discharge of this Indenture as provided in Article 12,
respectively; or


 


(vii)                             with respect
to a Guarantor other than the Parent, in connection with an enforcement sale by
the Security Agent in accordance with the terms of the Intercreditor Agreement.


 


ARTICLE 12

SATISFACTION AND DISCHARGE


 


Section 12.01                     Satisfaction
and Discharge.


 


(a)                                 This Indenture will
be discharged and will cease to be of further effect as to all Notes, when:


 


(i)                                     either:


 


105

















 


(A)                                 all Notes that have
been authenticated, except lost, stolen or destroyed Notes that have been
replaced or paid and Notes for whose payment money has been deposited in trust
and thereafter repaid to the Issuer, have been delivered to the Trustee for
cancellation; or


 


(B)                                all Notes that have not been delivered to the Trustee for cancellation
have become due and payable by reason of the mailing of a notice of redemption
or otherwise or will become due and payable within one year and the Issuer or
any Guarantor has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust solely for the benefit of the Holders, cash in
U.S. Dollars, non-callable U.S. Government Securities or a combination of cash
in U.S. Dollars and non-callable U.S. Government Securities (in the case of
Dollar Notes) and cash in euros, non-callable European Government Obligations
or a combination of cash in euros and non-callable European Government
Obligations (in the case of Euro Notes), in either case, in amounts as will be
sufficient, without consideration of any reinvestment of interest, to pay and
discharge the entire Indebtedness on the Notes not delivered to the Trustee for
cancellation of principal, premium and Additional Amounts, if any, and accrued
interest to the date of maturity or redemption;


 


(ii)                                  the Issuer or
any Guarantor has paid or caused to be paid all sums payable by it under this
Indenture; and


 


(iii)                               the Issuer
has delivered irrevocable instructions to the Trustee under this Indenture to
apply the deposited money toward the payment of the Notes at maturity or on the
redemption date, as the case may be.


 


In addition, the
Issuer must deliver an Officer’s Certificate and an Opinion of Counsel to the
Trustee stating that all conditions precedent to satisfaction and discharge
have been satisfied; provided that
any such counsel may rely on any Officer’s Certificate as to matters of fact
(including as to compliance with the foregoing clauses (i), (ii) and (iii) of
this Section 12.01(a)).


 


(b)                                 With respect to the
termination of obligations with respect to Section 12.01(a)(i)(A), the
obligations of the Issuer under Section 7.06 shall survive.  With respect to the termination of
obligations with respect to Section 12.01(a)(i)(B), the obligations of the
Issuer in Sections 2.02, 2.03, 2.04, 2.06, 2.07, 2.11, 4.01, 4.02, 4.06, 7.06,
7.07, 8.05, and 8.07 shall survive until the Notes are no longer
outstanding.  Thereafter, only the obligations
of the Issuer in Sections 7.06, 7.07, and 8.07 shall survive.  After any such irrevocable deposit, the
Trustee upon request shall acknowledge in writing the discharge of the
obligations of the Issuer under this Indenture, the Notes and the Note Guarantees,
if any, except for those surviving obligations specified above.


 


(c)                                  Notwithstanding the
satisfaction and discharge of this Indenture, if money has been deposited with
the Trustee pursuant to Section 12.01(a)(i)(B), the provisions of Sections
8.06 and 12.02 will survive.  In
addition, nothing in this Section 12.01 will be deemed to discharge those
provisions of Section 7.06, that, by their terms, survive the satisfaction
and discharge of this Indenture.


 


Section 12.02                     Application of
Trust Money.


 


(a)                                 Subject to the
provisions of Section 8.05, all money deposited with the Trustee pursuant
to Section 12.01 shall be held in trust and applied by it, in accordance
with the provisions of the Notes and this Indenture, to the payment, either
directly or through any Paying Agent (including the Issuer acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal, Additional Amounts and premium, if any, and interest for whose
payment such money has been deposited with the Trustee; but such money need not
be segregated from other funds except to the extent required by law.


 


106

















 


(b)                                 If the
Trustee or Paying Agent is unable to apply any money, U.S. Government
Securities or European Government Obligations in accordance with this Section 12.02
by reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Issuer’s and any Guarantor’s obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit
had occurred pursuant to Section 12.01; provided
that if the Issuer or any Guarantor has made any payment of
principal of, premium, if any, or interest on any Notes or Note Guarantees
because of the reinstatement of its obligations, the Issuer or any Guarantor,
as applicable, shall be subrogated to the rights of the Holders of such Notes
to receive such payment from the money, U.S. Government Securities or European
Government Obligations held by the Trustee or Paying Agent.


 


ARTICLE 13

MISCELLANEOUS


 


Section 13.01                     Notices.


 


(a)                                 Any notice or
communication by the Issuer, any Guarantor, the Trustee or the Security Agent
to the others is duly given if in writing in the English language and delivered
in Person or mailed by first class mail (registered or certified, return
receipt requested), telecopy or facsimile transmission or overnight air courier
guaranteeing next day delivery, to the others’ address:


 


If to the Issuer:




Prior to the Escrow Release Date: 




PE Paper Escrow GmbH

c/o Stichting Paper Escrow Holding

Locatellikade 1

1076 AZ Amsterdam

P.O. Box 75215

1070 AE Amsterdam

The Netherlands

Facsimile No.:  +31 (0) 20 6730 016

Attention:  Managing Director


 


On and after the Escrow Release
Date:


 


PE Paper Escrow GmbH

c/o Parent at the address below


 


With a copy to:




Cravath, Swaine & Moore LLP

CityPoint

One Ropemaker Street

London  EC2Y 9HR

Facsimile No.:  +44 20 7860 1150

Attn:  George Stephanakis


 


107

















 


If to the Parent:




Sappi Limited

48 Ameshoff Street

Braamfontein

Johannesburg 2001

South Africa

Facsimile No.:  +27 11 339 8022

Attention:  Company Secretary


 


With a copy to:




Cravath, Swaine & Moore LLP

CityPoint

One Ropemaker Street

London   EC2Y 9HR

Facsimile No.:  +44 20 7860 1150

Attn:  George Stephanakis


 


If to the Trustee:




The Bank of New York Mellon

One Canada Square

London  E14 5AL

United Kingdom

Facsimile No.:  +44 20 7964 2536

Attention:  Corporate Trust Administration


 


If to the Security Agent:




J. P. Morgan Europe Limited

125 London Wall

London EC2Y  5AS

Fax:  +44 20 7777 4165

Attention:  Managing Director


 


(b)                                 The Issuer, any
Guarantor, the Trustee or the Security Agent, by notice to the others may
designate additional or different addresses for subsequent notices or
communications.


 


(c)                                  All notices and
communications (other than those sent to Holders) shall be deemed to have been
duly given:  at the time delivered by
hand, if personally delivered; five Business Days after being deposited in the
mail, postage prepaid, if mailed and confirmed by facsimile; when receipt
acknowledged, if telecopied or transmitted by facsimile; and the next Business
Day after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.


 


(d)                                 All notices to the
Holders (while any Notes are represented by one or more Global Notes) shall be
delivered to DTC, Euroclear and Clearstream, as applicable for communication to
entitled account holders.  So long as the
Notes are traded on the Euro MTF and the rules and regulations of the
Luxembourg Stock Exchange so require, all notices to Holders will also be
published in d’Wort or in another daily newspaper published in Luxembourg
approved by the Trustee or on the website of the Luxembourg Stock Exchange
(www.bourse.lu).  If publication as
provided above is not practicable, notice will be given in such other manner,
and shall be deemed to have been given on such date, as the Trustee may
approve.  In the case of Definitive
Registered Notes, notices will be mailed to Holders by first-class mail at
their respective addresses as they appear on the records


 


108

















 


of
the Registrar, unless stated otherwise in the register kept by, and at the
registered office of the Issuer.


 


(e)                                 Notices given by
publication will be deemed given on the first date on which publication is
made.  Notices delivered to DTC,
Euroclear and Clearstream will be deemed given on the date when delivered.  Notices given by first class mail, postage
paid, will be deemed given five calendar days after mailing whether or not the
addressee receives it.


 


(f)                                     If a notice or
communication is mailed or published in the manner provided above within the
time prescribed, it is duly given, whether or not the addressee receives it.


 


If
the Issuer or any Guarantor mails a notice or communication to Holders or
delivers a notice or communication to holders of Book-Entry Interests, it shall
mail a copy to the Trustee and each Agent at the same time.


 


Section 13.02                     Certificate and
Opinion as to Conditions Precedent.


 


Upon
any request or application by the Issuer or any Guarantor to the Trustee to
take any action under this Indenture, the Issuer shall furnish to the Trustee:


 


(i)                                     an Officer’s
Certificate in form and substance reasonably satisfactory to the Trustee (which
shall include the statements set forth in Section 13.03) stating that, in
the opinion of the signers, all conditions precedent and covenants, if any,
provided for in this Indenture relating to the proposed action have been
complied with; and/or


 


(ii)                                  an Opinion of
Counsel in form and substance reasonably satisfactory to the Trustee (which
shall include the statements set forth in Section 13.03) stating that, in
the opinion of such counsel, all such conditions precedent and covenants have
been complied with.


 


Section 13.03                     Statements
Required in Certificate or Opinion.


 


Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:


 


(i)                                     a statement
that the Person making such certificate or opinion has read such covenant or
condition;


 


(ii)                                  a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based;


 


(iii)                               a statement
that, in the opinion of such Person, such Person has made such examination or
investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been satisfied; and


 


(iv)                                a statement
as to whether or not, in the opinion of such Person, such condition or covenant
has been satisfied.


 


Section 13.04                     Rules by
Trustee and Agents.


 


The
Trustee may make reasonable rules for action by or at a meeting of
Holders.  The Registrar or Paying Agent
may make reasonable rules and set reasonable requirements for its
functions.


 


109

















 


Section 13.05                     Agent for
Service; Submission to Jurisdiction; Waiver of Immunities.


 


Each
of the parties hereto irrevocably agrees that any suit, action or proceeding
arising out of, related to, or in connection with this Indenture, the Notes and
the Note Guarantees or the transactions contemplated hereby, and any action
arising under U.S. federal or state securities laws, may be instituted in any
U.S. federal or state court located in the State and City of New York, Borough
of Manhattan; irrevocably waives, to the fullest extent it may effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any such proceeding; and irrevocably submits to the jurisdiction of such courts
in any such suit, action or proceeding. 
The Issuer and each of the Guarantors has appointed CT Corporation as its
authorized agent upon whom process may be served in any such suit, action or
proceeding which may be instituted in any federal or state court located in the
State of New York, Borough of Manhattan arising out of or based upon this
Indenture, the Notes or the transactions contemplated hereby or thereby, and
any action brought under U.S. federal or state securities laws (the “Authorized Agent”).  The Issuer and each of the Guarantors
expressly consents to the jurisdiction of any such court in respect of any such
action and waives any other requirements of or objections to personal
jurisdiction with respect thereto and waives any right to trial by jury.  Such appointment shall be irrevocable unless
and until replaced by an agent reasonably acceptable to the Trustee it being
understood and agreed that S.D. Warren Company, 225 Franklin Street, 28th
Floor, Boston, MA 02110 (Attention:  Ms. Sarah
Manchester, Vice President and General Counsel), shall be deemed an agent
acceptable to the Trustee.  The Issuer
and each of the Guarantors represents and warrants that the Authorized Agent
has agreed to act as said agent for service of process, and each of the Issuer
and the Parent agrees to take any and all action, including the filing of any
and all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid.  Service of process upon the Authorized Agent
and written notice of such service to the Issuer shall be deemed, in every
respect, effective service of process upon the Issuer and any Guarantor.


 


Section 13.06                     No Personal
Liability of Directors, Officers, Employees and Shareholders.


 


No
director, officer, employee, incorporator or stockholder of the Issuer or any
Guarantor, as such, will have any liability for any obligations of the Issuer
or any Guarantor under the Notes, the Indenture, the Note Guarantees, the
Collateral Documents, the Intercreditor Agreement or for any claim based on, in
respect of, or by reason of, such obligations or their creation.  Each holder of Notes by accepting a Note
waives and releases all such liability. 
The waiver and release are part of the consideration for issuance of the
Notes.


 


Section 13.07                     Governing
Law.


 


THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,  WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.


 


Section 13.08                     No Adverse
Interpretation of Other Agreements.


 


This
Indenture may not be used to interpret any other indenture, loan or debt
agreement of the Issuer, any Guarantor or any of their respective Subsidiaries
or of any other Person.  Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.


 


Section 13.09                     Successors.


 


All
agreements of the Issuer in this Indenture and the Notes shall bind its
successors.  All agreements of each
Guarantor in this Indenture shall bind its successors, except as otherwise
provided


 


110

















 


in Section 11.04
hereof.  All agreements of the Trustee or
the Security Agent in this Indenture shall bind its successors.


 


Section 13.10                     Severability.


 


In
case any provision in this Indenture or in the Notes shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.


 


Section 13.11                     Counterpart
Originals.


 


The
parties may sign any number of copies of this Indenture.  Each signed copy shall be an original, but
all of them together represent the same agreement.


 


Section 13.12                     Table of
Contents, Headings, etc.


 


The
Table of Contents and Headings of the Articles and Sections of this Indenture
have been inserted for convenience of reference only, are not to be considered
a part of this Indenture and shall in no way modify or restrict any of the
terms or provisions hereof.


 


Section 13.13                     Judgment
Currency.


 


Any
payment on account of an amount that is payable in U.S. Dollars or euros (each,
a “Required Currency”), which is
made to or for the account of any Holder or the Trustee in lawful currency of
any other jurisdiction (the “Judgment
Currency”), whether as a result of any judgment or order or the
enforcement thereof or the liquidation of the Issuer or any Guarantor, shall
constitute a discharge of the Issuer or the Guarantor’s obligation under this
Indenture and the Notes or Note Guarantee, as the case may be, only to the
extent of the amount of the Required Currency with such Holder or the Trustee,
as the case may be, could purchase in the London foreign exchange markets with
the amount of the Judgment Currency in accordance with normal banking
procedures at the rate of exchange prevailing on the first Business Day
following receipt of the payment in the Judgment Currency.  If the amount of the Required Currency that
could be so purchased is less than the amount of the Required Currency
originally due to such Holder or the Trustee, as the case may be, the Issuer
and the Guarantors shall indemnify and hold harmless the Holder or the Trustee,
as the case may be, from and against all loss or damage arising out of, or as a
result of, such deficiency.  This
indemnity shall constitute an obligation separate and independent from the
other obligations contained in this Indenture or the Notes, shall give rise to
a separate and independent cause of action, shall apply irrespective of any
indulgence granted by any Holder or the Trustee from time to time and shall continue
in full force and effect notwithstanding any judgment or order for a liquidated
sum in respect of an amount due hereunder or under any judgment or order.


 


Section 13.14                     Prescription


 


Claims
against the Issuer or any Guarantor for the payment of principal or Additional
Amounts, if any, on the Notes will be prescribed ten years after the applicable
due date for payment thereof.  Claims
against the Issuer or any Guarantor for the payment of interest on the Notes will
be prescribed five years after the applicable due date for payment of interest.


 


Section 13.15                     Place of
performance


 


(a)                                 Performance


 


The
Parties shall perform their obligations under or in connection with this
Indenture exclusively at the Place of Performance (as defined below), but in no
event at a place in Austria and the performance of any obligations or liability
under or in connection with this Indenture or the Notes


 


111

















 


within the Republic of Austria shall not constitute
discharge or performance of such obligation or liability. For the purposes of
the above, “Place of Performance” means:


 


(i)                                     in relation
to any payment by a Debtor or a Creditor under or in connection with this
Indenture, the place at which such payment is to be made pursuant to this
Indenture; and


 


(ii)                                  in relation
to any other obligation or liability under or in connection with this
Indenture, the premises of the Trustee or Security Agent or any other place
outside of Austria as the Trustee or Security Agent specifies from time to
time.


 


(b)                                 Delivery of notices by Agent


 


Each of the or
any Guarantor agrees that any notice or document delivered on it under or in
connection with this Indenture or the Notes shall be sent to an address located
outside of Austria.


 


(Signatures on following page)


 


112

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed as of the date first written above.


 


	
   

  	
  PE PAPER
  ESCROW GmbH, as Issuer

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mr. Alexander Walther

  
	
   

  	
   

  	
  Name:
  Mr. Alexander Walther

  
	
   

  	
   

  	
  Title: Managing Director

  
	
   

  	
   

  
	
   

  	
  J.P. MORGAN
  EUROPE LIMITED, as Security Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Franck. Gomboc

  
	
   

  	
   

  	
  Name: Franck. Gomboc

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
  THE BANK OF
  NEW YORK MELLON, as Trustee, Transfer Agent, Registrar and Principal Paying
  Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul. Cattermole

  
	
   

  	
   

  	
  Name: Paul. Cattermole

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
  THE BANK OF
  NEW YORK MELLON (LUXEMBOURG) S.A., as Luxembourg Paying Agent, Transfer Agent
  and Registrar

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul. Cattermole

  
	
   

  	
   

  	
  Name: Paul. Cattermole

  
	
   

  	
   

  	
  Title: Vice President

  



 


113














 


EXHIBIT A


 


FORM OF NOTE


 


[THIS NOTE HAS BEEN ISSUED WITH
ORIGINAL ISSUE DISCOUNT (“OID”) FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES.  THE ISSUE PRICE, AMOUNT OF
OID, ISSUE DATE AND YIELD TO MATURITY OF THESE NOTES MAY BE OBTAINED FROM
MANAGING DIRECTOR OF THE ISSUER C/O STICHTING PAPER ESCROW HOLDING,
LOCATELLIKADE 1, 1076 AZ AMSTERDAM, P.O. BOX 75215, 1070 AE AMSTERDAM, THE
NETHERLANDS.]


 


PE
PAPER ESCROW GmbH


 


[11.75% Senior Secured Notes due 2014][12% Senior Secured
Notes due 2014]


 


GUARANTEED
BY


THE
GUARANTORS (AS DEFINED IN THE INDENTURE)


 




	
  No. ____

  	
   

  	
  CUSIP                          (1)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ISIN                          

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  COMMON CODE                          (2)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [$][€]                          

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Issue Date:                          

  






 


PE PAPER ESCROW GmbH, an Austrian
limited liability company (Gesellschaft mit
beschränkter Haftung), having its registered office at
Teinfaltstrasse 8, 1010 Vienna, Austria and registered with the Commercial
Court of Vienna, Austria under registration number FN 315874 x, for value
received promises to pay to
                                                        ,
or registered assigns, upon surrender hereof, the principal sum of
                                                        
[DOLLARS][EURO], subject to any adjustments listed on The Schedule of Exchanges
of Interests in the Global Note attached hereto, on August 1, 2014.


 


Interest Payment Dates:  February 1 and August 1


 


Record Dates:  January 15 and July 15


 


Reference is
hereby made to the further provisions of this Note set forth herein, which
further provisions shall for all purposes have the same effect as if set forth
at this place.


 






(1)         Include in any Dollar Note.


 


(2)         Include in any Euro Note.


 


A-1

















 


IN WITNESS
WHEREOF, the parties hereto have caused this Note to be signed manually or by
facsimile by the duly authorized officers referred to below.


 


 


	
   

  	
  PE PAPER ESCROW GmbH, as Issuer

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
  Location:

  



 


A-2

















 


This is one of the Notes referred
to


in the within-mentioned
Indenture:


 


	
  THE BANK OF NEW YORK MELLON, as Trustee

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


A-3

















 


[Back of Note]


 


[11.75% Senior Secured Notes due 2014] [12% Senior Secured
Notes due 2014]


 


[Insert the Global Note Legend, if applicable pursuant to the
provisions of the Indenture]


 


[Insert the Private Placement Legend]


 


Capitalized
terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.


 


(1)                                 INTEREST.  PE PAPER ESCROW
GmbH, an Austrian limited liability company (Gesellschaft
mit beschränkter Haftung), having its registered office at
Teinfaltstrasse 8, 1010 Vienna Austria and registered with the Commercial Court
of Vienna, Austria under registration number FN 315874 x, (the “Issuer”), promises to pay interest on the
principal amount of this Note at [11.75%](2) [12%](1) per annum from
                                          
until maturity.  The Issuer will pay
interest semi-annually in arrear on February 1st and August 1st of each year, or if any such day is not a
Business Day, on the next succeeding Business Day (each an “Interest Payment Date”).  Interest on the Notes will accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from the date of issuance; provided
that if there is no existing Default in the payment of interest, and if this
Note is authenticated between a record date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided,
further, that the first Interest Payment Date shall be
                                          .  The Issuer shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand at a rate that is 1%
per annum in excess of the rate then in effect; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law)
on overdue installments of interest and Additional Amounts (without regard to
any applicable grace periods) from time to time on demand at the same rate to
the extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.


 


(2)                                 METHOD
OF PAYMENT.  The Issuer will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on January 15th or July 15th preceding the next Interest Payment Date, even
if such Notes are cancelled after such record date and on or before such
Interest Payment Date, except as provided in Section 2.11 of the Indenture
with respect to defaulted interest. The [Dollar](1) [Euro](2) Notes
will be payable as to principal, interest, premium and Additional Amounts, if
any, through the Paying Agents as provided in the Indenture.  Such payment shall be in [dollars](1) [euro](2).


 


(3)                                 PAYING
AGENT AND REGISTRAR.  Initially, The Bank
of New York Mellon, the Trustee under the Indenture, will act as Principal
Paying Agent, Transfer Agent and Registrar. 
The Bank of New York Mellon, will act as Paying Agent and Transfer Agent
in London and New York City.  The Bank of
New York Mellon (Luxembourg) S.A. will act as Paying Agent, Transfer Agent and
Registrar in Luxembourg for so long as the Notes are admitted to trading on the
Euro MTF and listed on the Official List of the Luxembourg Stock Exchange and
the rules and regulations of the Luxembourg Stock Exchange so
require.  Upon notice to the Trustee, the
Issuer may change any Paying Agent, Registrar or Transfer Agent; provided, however, that in no event may
the Issuer appoint a Principal Paying Agent in any member state of the European
Union where the Principal Paying Agent would be obliged to withhold or deduct
tax in connection with any payment made by it in relation to the Notes unless
the Principal Paying Agent would be so obliged if it were located in all other
member states.


 






(1) Applicable
to Dollar Notes.


 


(2) Applicable
to Euro Notes.


 


A-4

















 


For so long as the Notes are
listed on the Euro MTF and the rules of the Luxembourg Stock Exchange so
require, the Issuer will publish a notice of any change of Paying Agent,
Registrar or Transfer Agent in a newspaper having a general circulation in
Luxembourg (currently expected to be the Luxemburger
Wort) or, to the extent and in the manner permitted by such rules and
regulations, posted on the official website of the Luxembourg Stock Exchange
(www.bourse.lu), in accordance with Section 13.01 of the Indenture.


 


(4)                                 INDENTURE.  The Issuer issued the Notes under an
Indenture dated as of July 29, 2009 (the “Indenture”)
between the Issuer, the Security Agent, the Trustee and The Bank of New York
Mellon (Luxembourg) S.A.  The Notes are
subject to all such terms, and Holders are referred to the Indenture for a
statement of such terms.  To the extent any
provision of this Note conflicts with the express provisions of the Indenture,
the provisions of the Indenture shall govern and be controlling.


 


(5)                                 OPTIONAL
REDEMPTION.


 


(c)                                  At any time prior to August 1,
2012, the Issuer may on any one or more occasions redeem [up to 35% of the
aggregate principal amount of the Euro Notes issued under the Indenture, upon
not less than 30 nor more than 60 days’ notice, at a redemption price equal to
111.75% of the principal amount of the Euro Notes redeemed](1) [up to 35%
of the aggregate principal amount of the Dollar Notes issued under the
Indenture, upon not less than 30 nor more than 60 days’ notice, at a redemption
price equal to 112.00% of the principal amount of the Dollar Notes redeemed](2),
plus accrued and unpaid interest and Additional Amounts, if any, to the date of
redemption (subject to the rights of Holders of Notes on the relevant record
date to receive interest on the relevant interest payment date), with the net
cash proceeds of an Equity Offering; provided
that:


 


(i)                                     [at least 65% of the
aggregate principal amount of the Euro Notes and](1) [at least 65% of the
aggregate principal amount of the Dollar Notes](2) originally issued under
the Indenture (excluding Notes held by the Parent and its Subsidiaries) remains
outstanding immediately after the occurrence of such redemption; and


 


(ii)                                  the redemption occurs
within 90 days of the date of the closing of such Equity Offering.


 


(d)                                 At any time prior to August 1,
2012, the Issuer may on any one or more occasions redeem all or a part of the
[Euro Notes](1) [Dollar Notes](2) upon not less than 30 nor more than
60 days’ notice at a redemption price equal to 100% of the principal
amount of the Notes redeemed, plus the Applicable Premium as of, and accrued
and unpaid interest and Additional Amounts, if any, to the date of redemption,
subject to the rights of Holders of the Notes on the relevant record date to
receive interest due on the relevant interest payment date.


 


(e)                                 Except pursuant to
subparagraphs (a) and (b) of this Paragraph 5 and pursuant to
Paragraph 6, the Notes will not be redeemable at the Issuer’s option prior to August 1,
2012.  On or after August 1, 2012,
the Issuer may on any one or more occasions redeem all or a part of the [Euro
Notes](1) [Dollar Notes](2) upon not less than 30 nor more than
60 days’ notice at the redemption prices (expressed as percentages of
principal amount) set forth below, plus accrued and unpaid interest and
Additional Amounts, if any, on the Notes redeemed, to the applicable date of
redemption, if redeemed during the twelve-month period beginning on August 1
of the years indicated below, subject to the rights of Holders of Notes on the
relevant record date to receive interest on the relevant interest payment date:


 






(1)         Applicable to Euro
Notes.


 


(2)         Applicable to Dollar
Notes.


 


A-5

















 


	
  Year

  	
   

  	
  Euro
  Notes

  	
   

  	
  Dollar
  Notes

  	
   

  
	
  2012

  	
   

  	
  105.875

  	
  %

  	
  106.000

  	
  %

  
	
  2013
  and thereafter

  	
   

  	
  100.000

  	
  %

  	
  100.000

  	
  %

  



 


(f)                                     Unless the Issuer
defaults in the payment of the redemption price, interest will cease to accrue
on the Notes or portions thereof called for redemption on the applicable
redemption date.


 


(g)                                 Any redemption and
notice may, in the Issuer’s discretion, be subject to the satisfaction of one
or more conditions precedent.


 


(6)                                 REDEMPTION
FOR CHANGES IN TAXES.


 


The Issuer may
redeem the Notes, in whole but not in part, at its discretion at any time upon
giving not less than 30 nor more than 60 days’ prior notice to the Holders
of the Notes (which notice will be irrevocable and given in accordance with the
procedures described in Section 3.03 and Section 13.01 of the
Indenture, at a redemption price equal to the principal amount thereof,
together with accrued and unpaid interest, if any, to the date fixed by the
Issuer for redemption (a “Tax Redemption
Date”) and all Additional Amounts (if any) then due and which will
become due on the Tax Redemption Date as a result of the redemption or
otherwise (subject to the right of Holders of the Notes on the relevant record
date to receive interest due on the relevant interest payment date and
Additional Amounts (if any) in respect thereof), if on the next date on which
any amount would be payable in respect of the Notes, the Issuer or any
Guarantor (including any successor entity) is or would be required to pay
Additional Amounts, and the Issuer or Guarantor cannot avoid any such payment
obligation taking reasonable measures available, and the requirement arises as
a result of:


 


(i)                                     any change in, or
amendment to, the laws or treaties (or any regulations, or rulings promulgated
thereunder) of the relevant Tax Jurisdiction affecting taxation which change or
amendment becomes effective on or after the Issue Date (or, if the relevant Tax
Jurisdiction has changed since the Issue Date, the date on which the then
current Tax Jurisdiction became the applicable Tax Jurisdiction under the
Indenture); or


 


(ii)                                  any change in, or
amendment to, the existing official position or the introduction of an official
position regarding the application, administration or interpretation of such
laws, treaties, regulations or rulings (including a holding, judgment or order
by a court of competent jurisdiction or a change in published practice), which
change, amendment, application or interpretation becomes effective on or after
the Issue Date (or, if the relevant Tax Jurisdiction has changed since the
Issue Date, the date on which the then current Tax Jurisdiction became the
applicable Tax Jurisdiction under the Indenture).


 


The Issuer or
Guarantor, as the case may be, will not give any such notice of redemption
earlier than 90 days prior to the earliest date on which the Issuer or
Guarantor, as the case may be, would be obligated to make such payment or
withholding if a payment in respect of the Notes were then due.  Prior to the publication or, where relevant,
mailing of any notice of redemption of the Notes pursuant to the foregoing and
in accordance with Section 3.03 of the Indenture, the Issuer will deliver
to the Trustee an opinion of counsel to the effect that there has been such
change or amendment and otherwise in compliance with Section 13.03 of the
Indenture which would entitle the Issuer or Guarantor, as the case may be, to
redeem the Notes hereunder. In addition, before the Issuer or Guarantor, as the
case may be, publishes or mails notice of redemption of the Notes pursuant to
the foregoing and in accordance with Section 3.03 of the Indenture, it
will deliver to the Trustee an Officer’s Certificate to the effect that it
cannot avoid its obligation to pay Additional Amounts by the Issuer or
Guarantor, as the case may be, taking reasonable measures available to it.


 


The Trustee
will accept and shall be entitled to rely on such Officer’s Certificate and
opinion of counsel as sufficient evidence of the existence and satisfaction of
the conditions precedent as described above, in which event it will be
conclusive and binding on the Holders. For the avoidance


 


A-6

















 


of doubt, the implementation of
European Council Directive 2003/48/EC or any other directive implementing the
conclusions of the ECOFIN Council meeting of 26 and 27 November 2000 on
the taxation of savings income or any law implementing or complying with or
introduced in order to conform to such directive, will not be a change or
amendment for such purposes.


 


(7)                                 SPECIAL
REDEMPTION.  This Note is subject to Special Redemption,
as described in Section 3.09 of the Indenture.


 


(8)                                 MANDATORY
REDEMPTION.  The Issuer shall not
be required to make mandatory redemption or sinking fund payments with respect
to the Notes other than as described in Section 3.09 of the Indenture.


 


(9)                                 REPURCHASE
AT OPTION OF HOLDER.


 


(a)                                 If a Change of
Control occurs, each Holder of Notes will have the right to require the Issuer
to repurchase all or any part ([equal to €50,000 or an integral multiple of
€1,000 in excess thereof](1) [equal to US$100,000 or an integral multiple of
US$1,000 in excess thereof](2)) of that Holder’s Notes pursuant to an offer
(the “Change of Control Offer”)
at a price in cash (the “Change of Control
Payment”) equal to 101% of the aggregate principal amount of Notes
repurchased on the date of purchase plus accrued and unpaid interest and all
Additional Amounts (if any) then due on the Notes repurchased to the date of
purchase, subject to the rights of Holders of Notes on the relevant record date
to receive interest due on the relevant interest payment date. Within 30 days
following a Change of Control, the Issuer will give notice to each Holder
describing the circumstances and/or facts that constitute the Change of Control
and offering to purchase all Notes on the Change of Control Payment Date
specified in the notice given to the Holders pursuant to Section 3.03 of
the Indenture.


 


(b)                                 Any Net Proceeds from
Asset Sales that are not applied or invested as provided and within the time
period set forth in the Indenture will constitute “Excess Proceeds.” When the aggregate amount of Excess
Proceeds exceeds US$25 million, within ten Business Days thereof, the Issuer
will make an Asset Sale Offer in accordance with the procedures set forth in
the Indenture  to all Holders of
Notes and may make an offer to all Holders of other Indebtedness that is pari passu with the Notes or any Note
Guarantees with respect to offers to purchase, prepay or redeem with the
proceeds of sales of assets to purchase, prepay or redeem the maximum principal
amount of Notes and such other pari passu Indebtedness
(plus all accrued interest on the Indebtedness and the amount of all fees and
expenses, including premiums, incurred in connection therewith) that may be
purchased, prepaid or redeemed out of the Excess Proceeds. The offer price for
the Notes in any Asset Sale Offer will be equal to 100% of the principal
amount, plus accrued and unpaid interest and Additional Amounts, if any, to the
date of purchase, prepayment or redemption, subject to the rights of Holders of
Notes on the relevant record date to receive interest due on the relevant
interest payment date, and will be payable in cash.  If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Issuer may use those Excess Proceeds
for any purpose not otherwise prohibited by the Indenture. If the aggregate
principal amount of Notes and other pari passu Indebtedness tendered into (or
to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the
amount of Excess Proceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased on
a pro rata basis or by lot or by
such other method as the Trustee in its sole discretion deems fair and
appropriate (or in the manner described in Section 3.02 or Section 13.01
of the Indenture), based on the amounts tendered or required to be prepaid or
redeemed. Upon completion of each Asset Sale Offer, the amount of Excess
Proceeds will be reset at zero.


 






(1)         Applicable to Euro
Notes.


 


(2)         Applicable to Dollar
Notes.


 


A-7

















 


(10)                          NOTICE
OF REDEMPTION.  Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address, except that
redemption notices may be mailed more than 60 days prior to a redemption date
if the notice is issued in connection with a defeasance of the Notes or a
satisfaction and discharge of the Indenture.


 


(11)                          DENOMINATIONS,
TRANSFER, EXCHANGE.


 


(a)                                 [The Global Notes are
in global registered form without coupons attached.](3) [The Dollar Global
Notes will represent the aggregate principal amount of all the Dollar Notes
issued and not yet cancelled other than Dollar Definitive Registered Notes.](4) [The Euro Global
Notes will represent the aggregate principal amount of all the Euro Notes
issued and not yet cancelled other than Euro Definitive Registered Notes.](5) [A Holder may
transfer or exchange Global Notes in accordance with the Indenture.](6)


 


(b)                                 [The [Dollar](6)[Euro](7) Definitive
Registered Notes are in registered form without coupons attached in
denominations of [$100,000](7) [€50,000](7) and integral multiples of [$](6)[€](7) 1,000 above [$100,000](6) [€50,000](7).  A Holder may transfer or exchange Definitive
Registered Notes in accordance with the Indenture.  The Indenture requires a Holder, among other
things, to furnish appropriate endorsements and transfer documents. The Issuer
shall not be required to register the transfer of any Definitive Registered
Notes: (A) for a period of 15 calendar days prior to any date fixed for
the redemption of the Notes under Section 3.03 of the Indenture; (B) for
a period of 15 calendar days immediately prior to the date fixed for selection
of Notes to be redeemed in part; (C) for a period of 15 calendar days
prior to the record date with respect to any interest payment date; or (D) which
the Holder has tendered (and not withdrawn) for repurchase in connection with a
Change of Control Offer or an Asset Sale Offer.](8)


 


(12)                          PERSONS
DEEMED OWNERS.  The registered Holder of a Note may be
treated as its owner for all purposes.


 


(13)                          AMENDMENT,
SUPPLEMENT AND WAIVER.  Subject to certain
exceptions, the Indenture, the Notes, the Note Guarantees, the Intercreditor
Agreement or the Collateral Documents may be amended or supplemented by the
Issuer, the Guarantors, the Trustee and the Security Agent with the consent of
the Holders of at least a majority in aggregate principal amount of the Notes
then outstanding (including, without limitation, Additional Notes, if any)
voting as a single class and, subject to Section 6.04 of the Indenture,
any existing Default or Event of Default (other than a continuing Default or
Event of Default in the payment of the principal of, interest and premium and
Additional Amounts, if any, on the Notes, except a payment default resulting
from an acceleration that has been rescinded) or compliance with any provision
of the Indenture, the Notes, the Note Guarantees, the Intercreditor Agreement
or the Collateral Documents may be waived with the consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes
(including, without limitation, Additional Notes, if any) voting as a single
class.  Without the consent of any
Holder, the Issuer, the Guarantors, the Trustee and the Security Agent may
amend or supplement the Indenture, the Notes, the Note Guarantees, the
Intercreditor Agreement and  the
Collateral Documents


 






(3)         Include in any Global Note.


 


(4)         Include in any Dollar Global Note.


 


(5)         Include in any Euro Global Note.


 


(6)         Include in any Global Note.


 


(7)         Include in any Euro Definitive Registered Note.


 


(8)         Include in any Definitive Registered Note.


 


A-8

















 


to cure any ambiguity, defect or
inconsistency; to provide for uncertificated Notes in addition to or in place
of certificated Notes; to provide for the assumption of the Issuer’s or a
Guarantor’s obligations to the Holders of the Notes and Note Guarantees
pursuant to a transaction governed by Section 5.01 of the Indenture; to
make any change that would provide any additional rights or benefits to the
Holders of the Notes or that does not adversely affect the legal rights of any
such Holder under the Indenture in any material respect; to conform the text of
the Indenture, the Notes, the Note Guarantees, the Intercreditor Agreement or
the Collateral Documents to any provision of the “Description of Notes” section
of the Offering Memorandum, to the extent that such provision in that “Description
of Notes” was intended to be a verbatim recitation of a provision of the
Indenture, the Notes, the Note Guarantees, the Intercreditor Agreement or the
Collateral Documents; to enter into additional or
supplemental Collateral Documents; to release Collateral in accordance with the
terms of the Indenture and the Collateral Documents or to release any Note
Guarantee in accordance with the terms of the Indenture; to provide for the
issuance of Additional Notes in accordance with the limitations set forth in
the Indenture as of the date hereof; to allow any Guarantor to execute a supplemental
indenture and/or a Note Guarantee with respect to the Notes; to provide for uncertified Notes in addition to or in place of certified
Notes (provided that the uncertified Notes are issued in registered form for
purposes of Section 163(f) of Title 26 of the U.S. Code (the “Code”),
in a manner such that the uncertified Notes are described in Section 163(f)(2)(B) of
the Code); to evidence and provide the acceptance of the appointment of a
successor Trustee under the Indenture; or to add additional parties to the
Intercreditor Agreement or any Collateral Documents to the extent permitted
under the Indenture and thereunder.


 


(14)                          DEFAULTS
AND REMEDIES. The following events constitute “Events of Default” under the Indenture: (i) default
for 30 days in the payment when due of interest on, or Additional Amounts
(if any) with respect to, the Notes; (ii) default in the payment when due
(at maturity, upon redemption or otherwise) of the principal of, or premium, if
any, on, the Notes; (iii) failure by the Issuer to make a Change of
Control Offer or Asset Sale Offer or to purchase Notes in accordance with Section 4.10
or Section 4.14 or failure by the Issuer or relevant Guarantor for
30 days after written notice to the Parent by the Trustee or the Holders
of at least 25% in aggregate principal amount of the Notes outstanding, voting
as a single class, to comply with any other provision described in Section 4.10
or Section 4.14; (iv) failure by the Parent, the Issuer or relevant
Guarantor to comply with Section 5.01; (v) failure by the Parent, the
Issuer or relevant Guarantor for 60 days after written notice to the
Parent by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding voting as a single class to comply with
any of the agreements in the Indenture (other than a default in performance, or
breach, or a covenant or agreement which is specifically dealt with in clauses
(i), (ii), (iii) or (iv) above); (vi) default under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness for money borrowed by the
Parent, the Issuer or any of its Restricted Subsidiaries (or the payment of
which is guaranteed by the Parent, the Issuer or any of its Restricted
Subsidiaries), whether such Indebtedness or Guarantee now exists, or is created
after the Issue Date, if that default (I) is caused by a failure to pay
principal of such Indebtedness prior to the expiration of the grace period
provided in such Indebtedness on the date of such default (a “Payment Default”) or (II) results in
the acceleration of such Indebtedness prior to its Stated Maturity and, in each
case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated  aggregates US$25.0 million or more; (vii) failure
by the Parent, the Issuer or any Restricted Subsidiary that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary, to pay final judgments entered by a court
or courts of competent jurisdiction aggregating in excess of
US$25.0 million (exclusive of any amounts that an insurance company has
acknowledged liability for), which judgments shall not have been discharged or
waived and there shall have been a period of 60 consecutive days during which a
stay of enforcement of such judgment or order, by reason of an appeal, waiver
or otherwise, shall not have been in effect; (viii) any security interest
created by the Collateral Documents ceases to be in full force and effect
(except as permitted by the terms of the Indenture, the Intercreditor Agreement
or the Collateral Documents) with respect to Collateral having a Fair Market
Value in excess of US$5.0 million or an assertion by the Parent or


 


A-9

















 


any of its Restricted Subsidiaries, in any pleading in any court of
competent jurisdiction, that any Collateral having a Fair Market Value in
excess of US$5.0 million is not subject to a valid, perfected security
interest (except as permitted by the terms of the Indenture, the Intercreditor
Agreement or the Collateral Documents); (ix) except as permitted by the
Indenture (including with respect to any limitations), any Note Guarantee of
the Parent or a Significant Subsidiary or any group of its Restricted
Subsidiaries that, taken together, would constitute a Significant Subsidiary is
held in any judicial proceeding to be unenforceable or invalid or ceases for
any reason to be in full force and effect, or the Parent or any Guarantor which
is a Significant Subsidiary or any group of its Restricted Subsidiaries that,
taken together, would constitute a Significant Subsidiary, or any Person acting
on behalf of any such Guarantor, denies or disaffirms its obligations under its
Note Guarantee; (x) the Issuer, the Parent or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of its Restricted
Subsidiaries that, taken together, would constitute a Significant Subsidiary
pursuant to or within the meaning of Bankruptcy Law (I) commences a
voluntary case, (II) consents to the entry of an order for relief against
it in an involuntary case, (III) consents to the appointment of a
custodian of it or for all or substantially all of its property, (IV) makes
a general assignment for the benefit of its creditors, or (V) admits in
writing its inability to pay its debts generally as they become due; and (xi) a
court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that (I) is for relief against the Parent, the Issuer or any of its
Restricted Subsidiaries that is a Significant Subsidiary or any group of its
Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary in an involuntary case, (II) appoints a custodian or
administrator of the Parent, the Issuer, or any of its Restricted Subsidiaries
that is a Significant Subsidiary or any group of its Restricted Subsidiaries
that, taken together, would constitute a Significant Subsidiary or for all or
substantially all of the property of the Parent, the Issuer or any of its
Restricted Subsidiaries that is a Significant Subsidiary or any group of its
Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary or (III) orders the liquidation of the Parent, the Issuer or
any of its Restricted Subsidiaries that is a Significant Subsidiary or any
group of its Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary, and in each case, the order or decree remains unstayed
and in effect for 60 consecutive days. 
In the case of an Event of Default specified in clause (x) or (xi)
of Section 6.01, with respect to the Parent or the Issuer, all outstanding
Notes will become due and payable immediately without further action or
notice.  If any other Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the then outstanding Notes may declare all the
Notes to be due and payable immediately and may instruct the Security Agent to
enforce any Collateral pursuant to the terms of the Intercreditor
Agreement.  The Holders of not less than
a majority in aggregate principal amount of the Notes outstanding may, on
behalf of the Holders of all outstanding Notes, waive any past default under
the Indenture and its consequences, except a continuing default (i) in the
payment of the principal of premium, if any, any Additional Amounts or interest
on any Note held by a non-consenting Holder (which may only be waived with the
consent of each Holder of Notes affected); or (ii) for any Note held by a
non-consenting Holder, in respect of a covenant or provision which under the
Indenture cannot be modified or amended without the consent of the Holder of
each Note affected by such modification or amendment.  Upon any such waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured for every purpose of the Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereon.  Holders of a majority in
aggregate principal amount of the then outstanding Notes may direct the time,
method and place of conducting any proceeding for exercising any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee.  However, the Trustee may refuse
to follow any direction that conflicts with law or the Indenture or that the
Trustee determines may be unduly prejudicial to the rights of other Holders of
Notes or that may involve the Trustee in personal liability, except a Default
or Event of Default relating to the payment of principal, interest, Additional
Amounts or premium, if any.


 


(15)                          TRUSTEE
DEALINGS WITH ISSUER.  The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Issuer or any Affiliate of the Issuer with the same
rights it would have if it were not Trustee.


 


A-10














 


(16)                          NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder of the Issuer or any Guarantor, as such, shall not
have any liability for any obligations of the Issuer or any Guarantor under the
Notes, the Indenture, the Note Guarantees, the Collateral Documents, the
Intercreditor Agreement or for any claim based on, in respect of, or by reason
of, such obligations or their creation. 
Each Holder of Notes by accepting a Note waives and releases all such
liability (as far as permitted by law). 
The waiver and release are part of the consideration for the issuance of
Notes.


 


(17)                          AUTHENTICATION. 
This Note shall not be valid until authenticated by the manual signature
of an authorized signatory of the Trustee.


 


(18)                          ABBREVIATIONS.  Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).


 


(19)                          [CUSIP AND](9) ISIN [AND COMMON CODE NUMBERS].(10)  [Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Issuer has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders.](9) [The
Issuer has caused Common Code numbers to be printed on the Notes and the
Trustee may use Common Code numbers in notices of redemption as a convenience
to Holders.](10) In addition, the Issuer has caused ISIN numbers to be
printed on the Notes and the Trustee may use ISIN numbers in notices of
redemption as a convenience to Holders. 
No representation is made as to the accuracy of any such numbers either
as printed on the Notes or as contained in any notice of redemption and
reliance may be placed only on the other identification numbers placed thereon.


 


(20)                          GOVERNING LAW


 


THE INDENTURE AND
THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS
OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.


 


Until
the Escrow Release Date, the Issuer, and after the Escrow Release Date, the
Parent, will furnish to any Holder upon written request and without charge a
copy of the Indenture, the Intercreditor Agreement and the Collateral
Agreement.  Requests may be made to:


 


Until the Escrow Release Date:


 


PE Paper Escrow GmbH

c/o Stichting Paper Escrow Holding

Locatellikade 1

1076 AZ Amsterdam 

P.O. Box 75215 

1070 AE Amsterdam

The Netherlands


 


After the Escrow Release Date:


 






(9)                   Include in any Dollar Note.


 


(10)            Include in any Euro Note.


 


A-11

















 


Sappi Limited

48 Ameshoff Street

Braamfontein

Johannesburg 2001

South Africa

Attention: Legal Department


 


(21)                          SUBJECT TO INTERCREDITOR AGREEMENT.  Each
Holder of the Notes, by accepting a Note, agrees to be bound by all of the
terms and provisions of the Indenture and the Intercreditor Agreement, as the
same may be amended from time to time, and acknowledges that the claims of the
Holders of the Notes are subject to the Intercreditor Agreement.  Each Holder, by accepting a Note, authorizes
and requests the Security Agent to, on such Holder’s behalf, (i) make all
undertakings, representations, offers and agreements of the Security Agent set
forth in the Intercreditor Agreement and (ii) take all actions called for
to be taken by the Security Agent in the Intercreditor Agreement.


 


A-12

















 


ASSIGNMENT FORM


 


To assign this Note, fill in the form below:


 


	
  (I)

  	
  or (we)
  assign and transfer this Note to:

  	
   

  
	
   

  	
   

  	
   

  	
  (Insert
  assignee’s legal name)

  
	
   

  	
   

  
	
   

  	
  (Insert assignee’s soc. sec. or tax I.D. no.)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Print or
  type assignee’s name, address and zip code)

  
	
   

  	
   

  	
   

  
	
  and
  irrevocably appoint

  	
   

  
	
   

  	
   

  
	
  to transfer
  this Note on the books of the Issuer. 
  The agent may substitute another to act for him.

  
					



 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
  (Sign
  exactly as your name appears on the face

  
	
   

  	
  of this
  Note)

  



 


Signature
Guarantee*:


 






*  Participant in a recognized Signature
Guarantee Medallion Program (or other signature guarantor acceptable to the
Trustee).


 


A-13

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If
you want to elect to have this Note purchased by the Issuer pursuant to Section 4.10
or  Section 4.14 of the Indenture,
check the appropriate box below:


 


o   Section 4.10            o  Section 4.14


 


If
you want to elect to have only part of the Note purchased by the Issuer
pursuant to Section 4.10 or Section 4.14 of the Indenture, state the
amount you elect to have purchased:


 


	
  [$][€]

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Date:

  	
   

  
	
   

  	
   

  
	
   

  	
  Your Signature:

  	
   

  
	
   

  	
  (Sign
  exactly as your name appears on the face of this Note)

  
	
   

  	
   

  	
   

  
	
   

  	
  Tax
  Identification No.:

  	
   

  
						



 


Signature
Guarantee*:


 






*  Participant in a recognized Signature
Guarantee Medallion Program (or other signature guarantor acceptable to the
Trustee).


 


A-14

















 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE
GLOBAL NOTE


 


The
following exchanges of a part of this Global Note for an interest in another
Global Note or for a Definitive Registered Note, or exchanges of a part of
another Global Note or Definitive Registered Note for an interest in this
Global Note, have been made:


 


	
  Date of Exchange

  	
   

  	
  Amount of decrease

  in Principal

  Amount 

  of this Global Note

  	
   

  	
  Amount of increase

  in Principal

  Amount of

  this Global Note

  	
   

  	
  Principal Amount of

  this Global Note

  following such

  decrease (or increase)

  	
   

  	
  Signature of

  authorized officer

  of Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-15














 


EXHIBIT F


 


AGREED
SECURITY PRINCIPLES


 


Considerations


 


1.                                      In determining what assets will be pledged in favor of
the Notes and/or the Notes Guarantees pursuant Section 4.10(b) of
this Indenture (“Security”), the
following matters will be taken into account. 
Security shall not be created or perfected to the extent that:


 


(a)                                 it would result in any breach of general statutory
limitations, corporate benefit, financial assistance, fraudulent
preference,  thin capitalisation laws or
regulations or retention of title claims (or analogous restrictions) of any
applicable jurisdiction, in which case, the ability of the Parent or a
Restricted Subsidiary to provide the Security will be limited;


 


(b)                                 it would result in a material risk to the officers or
directors of the relevant grantor of Security of contravention of their
fiduciary duties and/or of civil or criminal liability, provided that the
Parent shall cause its Restricted Subsidiaries to use commercially reasonable
efforts to overcome any such obstacle;


 


(c)                                  it would be subject to third party arrangements which
are permitted by the Indenture and which prevent those assets from being
charged, provided that commercially reasonable efforts to obtain consent to
charging any such assets shall be used by the Parent or Restricted Subsidiary
if the relevant asset is material;


 


(d)                                 the Security is not in respect of a category of assets
included in the Collateral as of the Issue Date; or


 


(e)                                 it would result in costs and/or an administrative
burden that are disproportionate to the benefit obtained by the beneficiaries
of such Security, in which case, the maximum granted or secured amount may be
limited to minimise costs where the benefit of increasing the granted or
secured amount is disproportionate to the level of such costs, and the parties
shall discuss in good faith how to mitigate the costs triggered by the creation
of that Security.


 


2.                                      For the avoidance of doubt, in these Agreed Security
Principles, “cost” includes, but is not limited to, income tax cost, ad valorem
registration taxes payable on the creation or enforcement or for the
continuance of any Security, stamp duties, notarisation, registration,
out-of-pocket expenses, and other fees, taxes, duties and expenses directly
incurred by the relevant grantor of Security or any of its direct or indirect
owners, subsidiaries or Affiliates.


 


Security to be granted


 


1.                                      Perfection of Liens on the Security, when required,
and other legal formalities will be completed as soon as practicable and, in
any event, within the time periods specified by applicable law in order to
ensure due perfection.


 


Obligations to be Secured


 


1.                                      The Security will secure both the Notes, the Note
Guarantees and the Issuer’s Obligations under this Indenture to the extent
permitted by law and Security is to be granted in favor of the Security Agent
on behalf of the Holders of Notes and the Trustee.


 


F-1

















 


Terms of the Collateral Documents


 


The following principles
will be reflected in the terms of any Security granted in accordance with Section 4.10(b):


 


1.                                      the Security will be first ranking, to the extent
reasonably possible and subject to the terms of the Intercreditor Agreement to
the extent required by the Intercreditor Agreement;


 


2.                                      the Security shall be enforceable in accordance with
the terms of the Indenture and the Intercreditor Agreement;


 


3.                                      the Collateral Documents shall operate to create
Security rather than to impose new commercial obligations and accordingly shall
not contain any additional undertakings other than those corresponding to an
undertaking or required in order to protect or preserve the Security; and


 


4.                                      Security shall become enforceable upon the occurrence
of an Event of Default that results in the Notes becoming due and payable,
following the request by Holders of the required amount of Notes, in accordance
with the terms of this Indenture and the Intercreditor Agreement.


 


F-2