EXHIBIT 4.13


 


EXECUTION VERSION


 


 


Euro 209,000,000


 


 


CREDIT AGREEMENT


 


 


dated 27 August 2009


 


 


for


 


 


SAPPI LIMITED, SAPPI PAPIER HOLDING GMBH AND OTHERS


 


 


arranged by


J.P. MORGAN PLC


CITIBANK, N.A. LONDON BRANCH


THE ROYAL BANK OF SCOTLAND PLC


UNICREDIT BANK AUSTRIA AG


HSBC BANK PLC


KBC BANK NV


 


 


with


 


 


J.P. MORGAN EUROPE LIMITED


acting as Agent and Security Agent


 


 


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. 
PLEASE READ CLAUSE 13.5 (STAMP TAXES), 29.1 (PAYMENTS TO THE AGENT), 31
(NOTICES) AND 37 (PLACE OF PERFORMANCE) OF THIS AGREEMENT IN CONNECTION WITH
THE FOREGOING.


 


 


LATHAM & WATKINS LLP


 


99 Bishopsgate


London EC2M 3XF


+44 (0)20 7710 1000 (Tel)


+44 (0)20 7374 4460 (Fax)


www.lw.com


 

















 


TABLE OF
CONTENTS


 


	
  1.

  	
  Definitions and interpretation

  	
  1

  
	
   

  	
   

  	
   

  
	
  2.

  	
  The Facility

  	
  24

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Purpose

  	
  27

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Conditions of Utilisation

  	
  27

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Utilisation

  	
  29

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Optional Currencies

  	
  30

  
	
   

  	
   

  	
   

  
	
  7.

  	
  Repayment

  	
  31

  
	
   

  	
   

  	
   

  
	
  8.

  	
  Prepayment and cancellation

  	
  32

  
	
   

  	
   

  	
   

  
	
  9.

  	
  Interest

  	
  38

  
	
   

  	
   

  	
   

  
	
  10.

  	
  Interest Periods

  	
  38

  
	
   

  	
   

  	
   

  
	
  11.

  	
  Changes to the calculation of
  interest

  	
  39

  
	
   

  	
   

  	
   

  
	
  12.

  	
  Fees

  	
  40

  
	
   

  	
   

  	
   

  
	
  13.

  	
  Tax gross up and indemnities

  	
  42

  
	
   

  	
   

  	
   

  
	
  14.

  	
  Increased costs

  	
  47

  
	
   

  	
   

  	
   

  
	
  15.

  	
  Other indemnities

  	
  48

  
	
   

  	
   

  	
   

  
	
  16.

  	
  Mitigation by the Lenders

  	
  49

  
	
   

  	
   

  	
   

  
	
  17.

  	
  Costs and expenses

  	
  50

  
	
   

  	
   

  	
   

  
	
  18.

  	
  Guarantee and indemnity

  	
  51

  
	
   

  	
   

  	
   

  
	
  19.

  	
  Representations

  	
  59

  
	
   

  	
   

  	
   

  
	
  20.

  	
  Information Undertakings

  	
  65

  
	
   

  	
   

  	
   

  
	
  21.

  	
  Financial covenants

  	
  70

  
	
   

  	
   

  	
   

  
	
  22.

  	
  General undertakings

  	
  73

  
	
   

  	
   

  	
   

  
	
  23.

  	
  Events of Default

  	
  88

  
	
   

  	
   

  	
   

  
	
  24.

  	
  Changes to the Lenders

  	
  94

  
	
   

  	
   

  	
   

  
	
  25.

  	
  Changes to the Obligors

  	
  98

  
	
   

  	
   

  	
   

  
	
  26.

  	
  Role of the Agent and the Mandated
  Lead Arrangers

  	
  102

  
	
   

  	
   

  	
   

  
	
  27.

  	
  Conduct of business by the Finance
  Parties

  	
  109

  
	
   

  	
   

  	
   

  
	
  28.

  	
  Sharing among the Lenders

  	
  109

  
	
   

  	
   

  	
   

  
	
  29.

  	
  Payment mechanics

  	
  111

  
	
   

  	
   

  	
   

  
	
  30.

  	
  Set-off

  	
  114

  
	
   

  	
   

  	
   

  
	
  31.

  	
  Notices

  	
  114

  
	
   

  	
   

  	
   

  
	
  32.

  	
  Calculations and certificates

  	
  116

  
	
   

  	
   

  	
   

  
	
  33.

  	
  Partial invalidity

  	
  116

  
	
   

  	
   

  	
   

  
	
  34.

  	
  Remedies and waivers

  	
  116

  



 

















 


	
  35.

  	
  Amendments and waivers

  	
  117

  
	
   

  	
   

  	
   

  
	
  36.

  	
  Counterparts

  	
  120

  
	
   

  	
   

  	
   

  
	
  37.

  	
  Place of performance

  	
  120

  
	
   

  	
   

  	
   

  
	
  38.

  	
  Confidentiality

  	
  121

  
	
   

  	
   

  	
   

  
	
  39.

  	
  Governing law

  	
  124

  
	
   

  	
   

  	
   

  
	
  40.

  	
  Enforcement

  	
  124

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 1 The Original Parties

  	
  125

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 2 Conditions Precedent

  	
  128

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 3 Utilisation Request

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 4 Mandatory Cost Formulae

  	
  139

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 5 Form of Transfer
  Certificate

  	
  142

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 6 Form of Accession
  Letter

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 7 Form of Resignation
  Letter

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 8 Form of Compliance
  Certificate

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 9 Existing Security,
  Guarantees and Intercompany Loans

  	
  144

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 10 Existing Subsidiary
  External Indebtedness

  	
  152

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 11 Timetables

  	
  156

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 12 Stamp Duty Guidelines

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 13 Required Amendments

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 14 Required Accessions
  and Consents

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 15 Transaction Security
  Documents

  	
  157

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 16 Form of Increase
  Confirmation

  	
   

  



 

















 


THIS
AGREEMENT is dated 27 August 2009 and
made between:


 


(1)                                 SAPPI LIMITED (the “Company”);


 


(2)                                 THE SUBSIDIARIES of the Company listed in Part I of Schedule 1 (The Original Obligors) as original borrowers (the “Original Borrowers”);


 


(3)                                 THE ENTITIES listed in Part I of Schedule 1 (The Original
Obligors) as original guarantors (the “Original Guarantors”);


 


(4)                                 J.P. MORGAN PLC, CITIBANK, N.A. LONDON
BRANCH, THE ROYAL BANK OF SCOTLAND PLC, UNICREDIT BANK AUSTRIA AG, HSBC BANK PLC, and KBC BANK NV (the “Mandated  Lead Arrangers”);


 


(5)                                 THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 (The
Original Lenders) as original lenders (the “Original Lenders”);


 


(6)                                 J.P. MORGAN EUROPE LIMITED as agent of the Lenders (the “Agent”);
and


 


(7)                                 J.P. MORGAN EUROPE LIMITED as security agent for the Secured Parties (the “Security
Agent”).


 


IT IS
AGREED as follows:


 


SECTION 1



INTERPRETATION


 


1.                                      DEFINITIONS AND
INTERPRETATION


 


1.1                               Definitions


 


In this
Agreement:


 


“Acceptable Bank” means:


 


(a)                                 a bank or financial institution which has a rating for its long-term
unsecured and non credit-enhanced debt obligations of A or higher by Standard &
Poor’s Rating Services or Fitch Ratings Ltd or A1 or higher by Moody’s Investor
Services Inc. or a comparable rating from an internationally recognised credit
ratings agency; or


 


(b)                                 any other bank or financial institution approved by the Agent.


 


“Accession Letter” means a document
substantially in the form set out in Schedule 6 (Form of Accession Letter).


 


“Additional Borrower” means a company which
becomes an Additional Borrower in accordance with Clause 25 (Changes to the Obligors).


 


“Additional Company” means any Subsidiary of the Company
which has acceded to this Agreement as a Guarantor in order to comply with the
Additional Companies Test and has not ceased to be a Guarantor.


 


“Additional Companies Test” means the obligations of the
Company under paragraphs (d) and (e) of Clause 22.19 (Guarantor Coverage Test).


 


1

















 


“Additional Cost Rate” has the meaning given to it in
Schedule 4 (Mandatory Costs Formulae).


 


“Additional Guarantor” means a company which
becomes an Additional Guarantor in accordance with Clause 25 (Changes to the Obligors).


 


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


 


“Affiliate” means, in relation to any
person, a Subsidiary of that person or a Holding Company of that person or any
other Subsidiary of that Holding Company.


 


“Agent’s Spot Rate of Exchange” means the
Agent’s spot rate of exchange for the purchase of the relevant currency with
the Base Currency in the London foreign exchange market at or about 11:00 a.m.
on a particular day.


 


“Annual Update” has the meaning given to
that term in paragraph (a)(ii) of Clause 20.4 (Information:
Miscellaneous).


 


“AO” means the Austrian Business Composition
Act (Ausgleichsordnung-AO).


 


“Applicable Accounting Principles” means GAAP and practices
and financial reference periods used in the preparation of the Base Case Model
and the Original Financial Statements.


 


“Assignment and Transfer Fee” means Euro 1,500.


 


“Auditors” means Deloitte & Touche.


 


“Austrian Borrower” means a Borrower
incorporated in the Republic of Austria.


 


“Austrian Guarantor” means a Guarantor
incorporated in the Republic of Austria.


 


“Austrian Increase Confirmation” means a confirmation
substantially in the form set out in Part II of Schedule 16 (Form of Austrian Increase Confirmation) or any other
form agreed between the Agent and the Company.


 


“Austrian Lender” means a Lender that has its seat (Sitz), place of management (Geschäftsleitung)
or a permanent establishment (Betriebsstätte)
in the Republic of Austria.


 


“Austrian Obligor” means an Austrian Borrower and an Austrian
Guarantor, as the case may be.


 


“Austrian Security Documents” means each of the Austrian
security documents described in Part I of Schedule 15 (Transaction Security Documents) in each case securing the
Secured Obligations.


 


“Austrian Transfer Certificate” means a certificate
substantially in the form set out in Part II of Schedule 5 (Form of Austrian Transfer Certificate) or any other
form agreed between the Agent and the Company.


 


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


 


“Availability Date” means the date on which the Existing RCF
Facility is repaid in full and all commitments thereunder are terminated.


 


“Availability Period” means the period from
and including the Availability Date to and including the date falling one month
prior to the Termination Date.


 


2

















 


“Available Commitment” means a Lender’s
Commitment minus:


 


(a)                                 the Base Currency Amount of its participation in any outstanding Loans;
and


 


(b)                                 in relation to any proposed Utilisation, the Base Currency Amount of its
participation in any Loans that are due to be made on or before the proposed
Utilisation Date other than that Lender’s participation in any Loans that are
due to be repaid, prepaid or, as the case may be, expire on or before the
proposed Utilisation Date.


 


“Available Facility” means the aggregate for
the time being of each Lender’s Available Commitment.


 


“Available Financings” means a facility (other than the
Facility or the OeKB Facility) which is required to be made available in order
to satisfy the condition precedent set out in paragraph 5(i) of Part I
of Schedule 2 (Conditions Precedent to Initial Utilisation).


 


“Base Case Model” means the five year financial forecast for
the Group and each of its operating regions (being Europe, North America and
Southern Africa) prepared by the management of the Group during May 2009
for the purposes of the New Financings.


 


“Base Currency” means Euro.


 


“Base Currency Amount” means, in relation to
a Loan, the amount specified in the Utilisation Request delivered by a Borrower
for that Loan (or, if the amount requested is not denominated in the Base
Currency, the amount of such Loan converted into the Base Currency at the Agent’s
Spot Rate of Exchange on the date which is three Business Days before the
Utilisation Date or, if later, on the date the Agent receives the Utilisation
Request) adjusted to reflect any repayment, prepayment or cancellation of the
Loan as the case may be.


 


“Belgian Borrower” means a Borrower incorporated and existing
under Belgian law.


 


“Belgian Guarantor” means a Guarantor incorporated and existing
under Belgian law.


 


“Belgian Obligor” means a Belgian Borrower and a Belgian
Guarantor, as the case may be.


 


“Belgian Security Documents” means each of the Belgian
security documents listed in Part II of Schedule 15 (Transaction
Security Documents) in each case securing the Secured Obligations.


 


“Bonds” means the USD300,000,000 12% and EUR350,000,000 11.75% Senior
Secured Notes due 2014 issued by PE Paper Escrow GmbH pursuant to the terms of
the Bond Indenture.


 


“Bonds Indenture” means senior secured notes indenture dated 29 July 2009
between, among others, PE Paper Escrow GmbH and the Bond Trustee.


 


“Bond Trustee” means The Bank of New York Mellon.


 


“Borrower” means an Original Borrower or an
Additional Borrower, unless it has ceased to be a Borrower in accordance with
Clause 25 (Changes to the Obligors).


 


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


 


(a)                                 the interest (other than the Margin and any Mandatory Cost) which a
Lender would have received for the period from the date of receipt of all or any
part of its participation in a Loan or Unpaid Sum to the last day of the
current Interest Period in


 


3

















 


respect of
that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been
paid on the last day of that Interest Period;


 


exceeds:


 


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


 


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


 


(a)                                 (in relation to any date for payment or purchase of a currency other
than Euro) the principal financial centre of the country of that currency; or


 


(b)                                 (in relation to any date for payment or purchase of Euro) which is a
TARGET Day.


 


“Change of Control” has the meaning ascribed to such term in
paragraph (a)(ii) of Clause 8.3 (Exit).


 


“Charged Property” means all of the assets of the Obligors
which from time to time are, or are expressed to be, the subject of the
Transaction Security.


 


“Commitment” means:


 


(a)                                 in relation to an Original Lender, the amount in the Base Currency set
opposite its name under the heading “Commitment” in Part II of Schedule 1
(The Original Lenders) and the
amount of any other Commitment transferred to it under this Agreement or
assumed by it in accordance with Clause 2.3 (Increase);
and


 


(b)                                 in relation to any other Lender, the amount in the Base Currency of any
Commitment transferred to it under this Agreement or assumed by it in
accordance with Clause 2.3 (Increase),


 


to the extent
not cancelled, reduced or transferred by it under this Agreement.


 


“Compliance Certificate” means a certificate
substantially in the form set out in Schedule 8 (Form of Compliance Certificate).


 


“Confidential Information” means all information relating to
the Company, any Obligor, the Group, the Finance Documents or the Facility of
which a Finance Party becomes aware in its capacity as or for the purpose of
becoming, a Finance Party or which is received by a Finance Party in relation
to or for the purpose of becoming a Finance Party under, the Finance Documents
or the Facility from either:


 


(a)                                 any Group Company or any of its advisers; or


 


(b)                                 another Finance Party, if the information was obtained by that Finance
Party directly or indirectly from any Group Company or any of its advisers,


 


in whatever
form, and includes information given orally and any document, electronic files
or any other way of representing or recording information which contains or is
derived or copied from such information but excludes information that:


 


(i)                                     is or becomes public information other than as a direct or indirect
result of any breach by that Finance Party of Clause 38 (Confidentiality);
or


 


4

















 


(ii)                                  is identified in writing at the time of delivery as non-confidential by
any Group Company or any of its advisers; or


 


(iii)                               is known by that Finance Party before the date the information is
disclosed to it in accordance with paragraphs (a) and (b) above or is
lawfully obtained by that Finance Party after that date, from a source which
is, as far as that Finance Party is aware, unconnected with the Group and
which, in either case, as far as that Finance Party is aware, has not been
obtained in breach of, and is not otherwise subject to, any obligation of
confidentiality.


 


“Confidentiality Undertaking” means a
confidentiality undertaking substantially in a recommended form of the LMA or
in any other form agreed between the Company and the Agent.


 


“Default” means an Event of Default or any
event or circumstance specified in Clause 23 (Events
of Default) which would (with the expiry of a grace period, the
giving of notice, the making of any determination under the Finance Documents
or any combination of any of the foregoing) be an Event of Default.


 


“Defaulting Lender” means any Lender:


 


(a)                                 which has failed to make its participation in a Loan available or has
notified the Agent that it will not make its participation in a Loan available
by the Utilisation Date of that Loan in accordance with Clause 5.4 (Lenders’ participation);


 


(b)                                 which has otherwise rescinded or repudiated a Finance Document; or


 


(c)                                  with respect to which an Insolvency Event has occurred and is
continuing,


 


unless, in
the case of paragraph (a) above:


 


(i)                                     its failure to pay is caused by:


 


(A)           administrative
or technical error; or


 


(B)           a
Disruption Event; and


 


payment is
made within 5 Business Days of its due date; or


 


(ii)                                  the Lender is disputing in good faith whether it is contractually
obliged to make the payment in question.


 


“Delegate” means any delegate, agent, attorney or co-trustee
appointed by the Security Agent.


 


“Disposal” means a sale, transfer or other
disposal (including by way of lease or loan) by a person of all or part of its
assets, whether by one transaction or a series of transactions.


 


“Disruption Event” means either or both of:


 


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


 


5














 


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


 


(i)                                     from
performing its payment obligations under the Finance Documents; or


 


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


 


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


 


“Dutch Guarantor”
means a Guarantor incorporated and existing under the law of The Netherlands.


 


“Dutch Obligor”
means an Obligor incorporated and existing under the law of The Netherlands.


 


“Dutch Security Documents”
means each of the Dutch security documents listed in Part III of Schedule
15 (Transaction Security Documents) in each
case securing the Secured Obligations.


 


“English Security Document”
means the English security document listed in Part IX of Schedule 15 (Transaction Security Documents) securing the Secured
Obligations.


 


“Environmental Claim”
means any claim, proceeding or investigation by a person in respect of any
Environmental Law.


 


“Environmental Law”
means any applicable law or regulation in any jurisdiction in which any Group
Company conducts business which relates to the pollution or protection of the
environment or harm to or the protection of human health or the health of
animals or plants.


 


“Environmental Permits”
means any permit and other Authorisation required under any Environmental Law
for the operation of the business of any Group Company conducted on or from the
properties owned or used by any Group Company.


 


“EURIBOR”
means, in relation to any Loan in Euro:


 


(a)                                 the applicable
Screen Rate; or


 


(b)                                 (if no Screen
Rate is available for the period of that Loan) the arithmetic mean of the rates
(rounded upwards to four decimal places) as supplied to the Agent at its
request quoted by the Reference Banks to leading banks in the European
interbank market,


 


as of the Specified Time on the Quotation Day for the
offering of deposits in Euro for a period comparable to the Interest Period of
the relevant Loan.


 


“Euro-only Lender”
means a Lender who has given notice in writing, at the time it becomes a Lender
under this Agreement to the Agent and the Company that such Lender’s Commitment
is only available in Euros.


 


“Event of Default”
means any event or circumstance specified as such in Clause 23 (Events of Default).


 


“Excluded Subsidiary”
means any Subsidiary of the Company which is not:


 


(a)                                 a Sappi Manufacturing
Group Company;


 


6

















 


(b)                                 Sappi Papier Holding GmbH;


 


(c)                                  a Subsidiary of Sappi Papier Holding GmbH; or


 


(d)                                 Sappi Holding GmbH.


 


“Existing Finance
Documents” means the existing subsidiary finance documents set out
in Schedule 10 (Existing Subsidiary External Indebtedness).


 


“Existing RCF Facility”
means the existing Euro 600,000,000 revolving credit facility made available to
Sappi Papier Holding GmbH and others pursuant to a credit agreement dated 29 June 2005
made between, amongst others, Sappi Limited, the Original Borrowers (as defined
therein), the Original Guarantors (as defined therein) and the Lenders (as
defined therein).


 


“Existing Security”
means the existing Security listed in Schedule 9 (Existing
Security, Guarantees and Intercompany Loans).


 


“Facility”
means the multicurrency revolving loan facility made available under this
Agreement as described in Clause 2.1 (The
Facility).


 


“Facility Office”
means the office or offices notified by a Lender to the Agent in writing on or
before the date it becomes a Lender (or, following that date, by not less than
five Business Days’ written notice) as the office or offices through which it
will perform its obligations under this Agreement.


 


“Fee Letter”
means any fee letter or letters entered into by reference to this Agreement
between one or more of the Finance Parties and Sappi Papier Holding GmbH
setting out the fees payable by Sappi Papier Holding GmbH in connection with
the Facility.


 


“Finance Document”
means this Agreement, any Fee Letter, any Compliance Certificate, any
Utilisation Request, any Accession Letter, any Resignation Letter, the
Intercreditor Agreement, the Mandate Letter, the Transaction Security Documents
and any other document designated as a Finance Document by the Agent and the
Company.


 


“Finance Party”
means the Agent, the Security Agent, a Mandated Lead Arranger or a Lender.


 


“Financial Indebtedness”
means (without double counting) any indebtedness for or in respect of:


 


(a)                                 moneys
borrowed;


 


(b)                                 any amount
raised by acceptance under any acceptance credit facility or dematerialised
equivalent;


 


(c)                                  any amount
raised pursuant to any note purchase facility or the issue of bonds, notes,
debentures, loan stock or any similar instrument;


 


(d)                                 the amount of
any liability in respect of any hire purchase agreement, conditional sale
agreement or lease which would, in accordance with generally accepted
accounting standards in the relevant jurisdiction be treated as a finance or
capital lease;


 


(e)                                 for the
purpose of Clause 23.5 (Cross- default)
only, any interest rate or currency swap agreement or any other hedging or
derivatives instrument or agreement (and when calculating the value of such
movement or agreement only the marked to market value shall be taken into
account);


 


7

















 


(f)                                     receivables
sold or discounted (other than any receivables to the extent they are sold or
discounted on a non-recourse basis (or where recourse is limited to customary
warranties and indemnities) and meet any requirement for de-recognition under
the Applicable Accounting Principles);


 


(g)                                 any amount of
any liability under an advance or deferred purchase agreement if (i) one
of the primary reasons behind entering into the agreement is to raise finance
or to finance the acquisition or construction of the asset or service in
question or (ii) the agreement is in respect of the supply of assets or
services and payment is due more than 120 days after the date of supply;


 


(h)                                 any amount
raised under any other transaction (including any forward sale or purchase,
sale and sale back or sale and leaseback agreement) having the commercial
effect of a borrowing;


 


(i)                                     any
arrangement entered into primarily as a method of raising finance pursuant to
which any asset sold or otherwise disposed of by that person is or may be
leased to or re-acquired by a Group Company (whether following the exercise of
an option or otherwise); or


 


(j)                                     any guarantee,
indemnity or similar insurance against financial loss given in respect of the
obligation of any person falling within any of paragraphs (a) to (g) above,


 


except that indebtedness owing by one Group Company to
another Group Company shall not be taken into account as Financial
Indebtedness.


 


“Financial Year”
means the annual accounting period of the Group ending on the Sunday closest to
30 September in each calendar year.


 


“Finnish Guarantor”
means a Guarantor incorporated in Finland.


 


“Finnish Security Documents”
means each of the Finnish security documents listed in Part IV of Schedule
15 (Transaction Security Documents) in each
case securing the Secured Obligations.


 


“GAAP” means:


 


(a)                                 in relation to
the consolidated financial statements of the Group, IFRS;


 


(b)                                 in relation to
the Company and Sappi Papier Holding GmbH, IFRS; and


 


(c)                                  in relation to
each Obligor (other than the Company and Sappi Papier Holding GmbH), generally
accepted accounting principles, standards and practices in that Obligor’s
jurisdiction of incorporation.


 


“German
Guarantor” means a Guarantor incorporated under the laws of Germany.


 


“German Security Documents”
means each of the German security documents listed in Part V of Schedule
15 (Transaction Security Documents) in each
case securing the Secured Obligations.


 


“Group” means
the Company and its Subsidiaries for the time being and “Group Company” means any one of the same.


 


“Group Structure Chart”
means the group structure chart in the agreed form.


 


8

















 


“Guarantor”
means an Original Guarantor or an Additional Guarantor, unless it has ceased to
be a Guarantor in accordance with Clause 25 (Changes
to the Obligors).


 


“Guarantor Coverage Group”
means Sappi Papier Holding GmbH and the Subsidiaries of Sappi Papier Holding
GmbH.


 


“Guarantor Coverage Test”
has the meaning given to that term in paragraph (a) of Clause 22.19 (Guarantor Coverage Test).


 


“Holding Company”
means, in relation to a company or corporation, any other company or
corporation in respect of which it is a Subsidiary.


 


“Hong Kong Guarantor”
means a Guarantor incorporated in Hong Kong.


 


“IFRS” means
the international accounting standards within the meaning of IAS Regulation
1606/2002 to the extent applicable to the relevant financial statements.


 


“Impaired Agent”
means the Agent at any time when:


 


(a)                                 it has failed
to make (or has notified a Party that it will not make) a payment required to
be made by it under the Finance Documents by the due date for payment;


 


(b)                                 the Agent
otherwise rescinds or repudiates a Finance Document;


 


(c)                                  (if the Agent
is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of
the definition of “Defaulting Lender”; or


 


(d)                                 an Insolvency
Event has occurred and is continuing with respect to the Agent;


 


unless, in the case of paragraph (a) above:


 


(i)                                     its failure to
pay is caused by:


 


(A)           administrative
or technical error; or


 


(B)           a
Disruption Event; and


 


payment is made within 5 Business Days
of its due date; or


 


(ii)                                  the Agent is
disputing in good faith whether it is contractually obliged to make the payment
in question.


 


“Increase Confirmation”
means a confirmation substantially in the form set out in Part I of
Schedule 16 (Form of Increase Confirmation)
or any other form agreed between the Agent and the Company.


 


“Increase Fee”
means a payment of Euro 5.


 


“Increase Lender”
means has meaning given to that term in Clause 2.3 (Increase).


 


“Information Memorandum”
means the confidential information memorandum in respect of the Group dated June 2009
and prepared in connection with the Facility and the OeKB  Facility.


 


“Information Package”
means the Information Memorandum and the Base Case Model.


 


“Insolvency Event” in relation to
a Finance Party means that the Finance Party:


 


9

















 


(a)                                 it is dissolved
(other than pursuant to a consolidation, amalgamation or merger);


 


(b)                                 becomes
insolvent or is unable to pay its debts or fails or admits in writing its
inability generally to pay its debts as they become due;


 


(c)                                  makes a
general assignment, arrangement or composition with or for the benefit of its
creditors;


 


(d)                                 institutes or
has instituted against it, by a regulator, supervisor or any similar official
with primary insolvency, rehabilitative or regulatory jurisdiction over it in
the jurisdiction of its incorporation or organisation or the jurisdiction of
its head or home office, a proceeding seeking a judgment of insolvency or
bankruptcy or any other relief under any bankruptcy or insolvency law or other
similar law affecting creditors’ rights, or a petition is presented for its
winding-up or liquidation by it or such regulator, supervisor or similar
official;


 


(e)                                 institutes or
has instituted against it a proceeding seeking a judgment of insolvency or
bankruptcy or any other relief under any bankruptcy or insolvency law or other
similar law affecting creditors’ rights, or a petition is presented for its
winding-up or liquidation, and, in the case of any such proceeding or petition
instituted or presented against it such proceeding or petition is instituted or
presented by a person not described in paragraph (d) above and:


 


(i)                                     results in a
judgment of insolvency or bankruptcy or the entry of an order for relief or the
making of an order for its winding-up or liquidation; or


 


(ii)                                  is not
dismissed, discharged, stayed or restrained in each case within 30 days of the
institution or presentation thereof;


 


(f)                                     has exercised in respect of it one or more of
the stabilisation powers pursuant to Part 1 of the Banking Act
2009 and/or has instituted against it a bank insolvency proceeding pursuant to Part 2
of the Banking Act 2009 or a bank administration proceeding pursuant to Part 3
of the Banking Act 2009;


 


(g)                                 has a
resolution passed for its winding-up, official management or liquidation (other
than pursuant to a consolidation, amalgamation or merger);


 


(h)                                 seeks or
becomes subject to the appointment of an administrator, provisional liquidator,
conservator, receiver, trustee, custodian or other similar official for it or
for all or substantially all its assets;


 


(i)                                     has a secured
party take possession of all or substantially all its assets or has a distress,
execution, attachment, sequestration or other legal process levied, enforced or
sued on or against all or substantially all its assets and such secured party
maintains possession, or any such process is not dismissed, discharged, stayed
or restrained, in each case within 30 days thereafter; or


 


(j)                                     causes or is
subject to any event with respect to it which, under the applicable laws of any
jurisdiction, has an analogous effect to any of the events specified in
paragraphs (a) to (i) above;


 


“Intercreditor Agreement”
means an intercreditor agreement in relation to, among other things, the
sharing and ranking of the Transaction Security dated on or about the Signing
Date made between among others, the Original Obligors, the Lenders, the OeKB
Lenders and the Bond Trustee.


 


10

















 


“Intellectual Property”
means:


 


(a)                                 any patents,
trade marks, service marks, designs, business names, copyrights, database
rights, design rights, domain names, inventions, rights in confidential
information and know-how, and other intellectual property rights and interests
(which may now or in the future subsist), whether registered or unregistered;
and


 


(b)                                 the benefit of
all applications and rights to use such assets of each Group Company (which may
now or in the future subsist).


 


“Interest Period”
means, in relation to a Loan, each period determined in accordance with Clause
10 (Interest Periods) and, in
relation to an Unpaid Sum, each period determined in accordance with Clause 9.3
(Default interest).


 


“Joint Venture”
means any joint venture entity, whether a company, unincorporated firm,
undertaking, association, joint venture or partnership or any other entity or
equivalent arrangement.


 


“KO”
means the Austrian Bankruptcy Code (Konkursordnung-KO).


 


“Lender” means:


 


(a)                                 any Original
Lender; and


 


(b)                                 any bank or
financial institution which has become a Party as a Lender in accordance with
Clause 24 (Changes to the Lenders),


 


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


 


“LIBOR” means,
in relation to any Loan:


 


(a)                                 the applicable
Screen Rate; or


 


(b)                                 (if no Screen
Rate is available for the currency or Interest Period of that Loan) the
arithmetic mean of the rates (rounded upwards to four decimal places) as
supplied to the Agent at its request quoted by the Reference Banks to leading
banks in the London interbank market,


 


as of the Specified Time on the Quotation Day for the
offering of deposits in the currency of that Loan and for a period comparable
to the Interest Period for that Loan.


 


“Loan” means a
loan made or to be made under the Facility or the principal amount outstanding
for the time being of that Loan.


 


“LMA” means the
Loan Market Association.


 


“Majority Lenders”
means:


 


(a)                                 until the
Total Commitments have been reduced to zero, a Lender or Lenders whose
Commitments aggregate more than 662/3 per cent. of the Total Commitments (or, if the
Total Commitments have been reduced to zero, and there are no Loans then
outstanding, aggregated more than 662/3 per cent. of the Total Commitments immediately
prior to that reduction); or


 


(b)                                 at any other
time, a Lender or Lenders whose participations in the Facility then outstanding
aggregate more than 662/3 per cent. of the Facility then outstanding.


 


11

















 


“Mandate Letter”
means the letter dated on or about the date of this Agreement addressed by the
Mandated Lead Arrangers to Sappi Papier Holding GmbH.


 


“Mandatory Cost”
means the percentage rate per annum calculated by the Agent in accordance with
Schedule 4 (Mandatory Cost Formulae).


 


“Margin”  means 5.25 per cent. per annum subject
to the Margin Adjusted Rate.


 


“Margin Adjusted Rate”
means in relation to a particular Interest Period, the rate per annum
determined by reference to the credit ratings assigned as follows:


 


if the Rating last published (and not withdrawn) before the
Quotation Day for that Interest Period of both Moody’s and Standard &
Poor’s is as per those set out in Column A of the table below, then the
corresponding Margin in Column B in the table below shall apply:


 


	
  (A)

  	
   

  	
  (B)

  
	
  S&P/Moody’s Rating

  	
   

  	
  Margin (% p.a.)

  
	
  BBB-/Baa3

  	
   

  	
  3.00

  
	
  BB+/Ba1

  	
   

  	
  4.00

  
	
  BB/Ba2

  	
   

  	
  4.50

  
	
  BB-/Ba3

  	
   

  	
  5.25

  
	
  B+/B1 or
  lower

  	
   

  	
  6.50

  



 


(a)                                 In the event
that there is a difference in the Rating assigned by Moody’s and Standard and
Poor’s, the applicable Margin shall be determined by reference to the mean of
the rate per annum assigned to each of the two Ratings; and


 


(b)                                 In the event
that a Rating is only assigned by one of the aforementioned rating agencies,
such Rating shall apply.


 


“Material Adverse Effect”
means a material adverse effect on:


 


(a)                                 the business,
operations, assets or financial condition of the Group taken as a whole;


 


(b)                                 the ability of
the Obligors (taken together) to perform their payment obligations under the
Finance Documents or the ability of the Company to comply with the financial
covenants set out in Clause 21 (Financial Covenants);
or


 


(c)                                  the validity
or enforceability of, or the ranking of, any Security granted or purported to
be granted pursuant to any of the Finance Documents.


 


“Material Subsidiary”
means, at any time:


 


(a)                                 Sappi Papier
Holding GmbH; and


 


(b)                                 any Subsidiary
of Sappi Papier Holding GmbH (excluding PE Paper Escrow GmbH) which has:


 


(i)                                     earnings
before interest, tax, depreciation and amortisation (calculated on the same
basis as EBITDA, as defined in Clause 21 (Financial Covenants)


 


12

















 


representing 5 per cent. or more of the consolidated EBITDA
(as defined in Clause 21 (Financial Covenants)
of the Guarantor Coverage Group; or


 


(ii)                                  gross assets
representing 5 per cent. or more of the consolidated gross assets of the
Guarantor Coverage Group,


 


in each case as set out, until the first Compliance
Certificate is delivered, in the list provided to the Agent pursuant to
paragraph (5)(g) of Part I of Schedule 2 (Conditions precedent) and thereafter as calculated by
reference to the latest annual consolidated financial statements of the Group
delivered by the Company to the Agent pursuant to Clause 20.1 (Financial statements) and as updated from
time to time in each Compliance Certificate.


 


“Month” means a
period starting on one day in a calendar month and ending on the numerically
corresponding day in the next calendar month, except that:


 


(a)                                 (subject to
paragraph (c) below) if the numerically corresponding day is not a
Business Day, that period shall end on the next Business Day in that calendar
month in which that period is to end if there is one, or if there is not, on
the immediately preceding Business Day;


 


(b)                                 if there is no
numerically corresponding day in the calendar month in which that period is to
end, that period shall end on the last Business Day in that calendar month; and


 


(c)                                  if an Interest
Period begins on the last Business Day of a calendar month, that Interest
Period shall end on the last Business Day in the calendar month in which that Interest
Period is to end.


 


The above rules will only apply to a period of one
Month or the last Month of any period.


 


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


 


“M-Real Trade Receivables”
means the trade receivables owed to Sappi Europe SA from time to time.


 


“Net Debt” has
the meaning given to that term in Clause 21.2 (Financial
definitions).


 


“New Financings”
means this Facility, the OeKB Facility and the Bonds.


 


“Non-Obligor Chargor”
means any Group Company which is not an Obligor but which has created
Transaction Security.


 


“Obligor”
means a Borrower or a Guarantor.


 


“Obligors’ Agent”
means Sappi International SA (“SISA”), a company incorporated  and existing under the laws of Belgium.


 


“OeKB Facility”
means a Euro 400,000,000 term facility to be made available to Sappi Papier
Holding GmbH pursuant to an amendment and restatement of an existing credit
agreement dated on or about the date hereof made between, amongst others, Sappi
Papier Holding GmbH, the Original Guarantors (as referred to therein) and the
Lenders (as referred to therein).


 


“OeKB Lenders”
means the lenders under the OeKB Facility.


 


13

















 


“Optional Currency”
means Dollars or any other currency (other than the Base Currency) which
complies with the conditions set out in Clause 4.3 (Conditions relating to Optional Currencies).


 


“Original Financial
Statements” means (i) the audited consolidated financial
statements of each Obligor other than Sappi Maastricht BV, Sappi Nijmegen BV,
Sappi Deutschland Holding GmbH, Sappi Netherlands BV, SD Warren Company and
Sappi Cloquet LLC for their respective Financial Years ended in September 2008
or December 2008 as applicable; (ii) the unaudited unconsolidated
management accounts of Sappi Maastricht BV, Sappi Nijmegen BV, Sappi
Deutschland Holding GmbH and Sappi Netherlands BV and the unaudited
consolidated management accounts of SD Warren Company for their respective
Financial Years ended in September 2008 or December 2008 as
applicable; and (iii) the unaudited consolidated interim report of each of
the Company and Sappi Papier Holding GmbH for the period of three months ending
on 28 June 2009 in the case of the Company and 29 March 2009 in the
case of Sappi Papier Holding GmbH.


 


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


 


“Outstandings”
means the aggregate of the Base Currency Amount from time to time of each of
the Loans.


 


“Paper Business”
means, any one or more of the following businesses:


 


(a)                                 the
production, manufacture, distribution, supply, sale, purchase and trading in
respect of paper (including but not limited to fine paper, coated and uncoated
wood-free paper, packaging paper, publication paper and newsprint);


 


(b)                                 pulp
(including all chemical or other manufacturing processes relating to pulp);


 


(c)                                  wood products
(including all initial processes, manufacturing or otherwise relating to paper,
pulp and paper pulp) and the growing of timber supplies; and


 


(d)                                 chemical
cellulose.


 


“Participating Member
State” means any member state of the European Communities that
adopts or has adopted the Euro as its lawful currency in accordance with
legislation of the European Union relating to European Monetary Union.


 


“Party” means a
party to this Agreement and includes its successors in title, permitted assigns
and permitted transferees.


 


“Permitted Kangas Disposal”
means a Disposal of any of the Kangas mill and related real estate and
equipment pursuant to the property option contained in the master business and
share sale and purchase agreement dated 29 September 2008 between, amongst
others, M-Real Corporation and the Company.


 


“Permitted Lereko Disposal”
means a Disposal of any of real estate in South Africa to the Lereko Property
Company or one of its Affiliates in accordance with the terms of an amended and
restated joint ownership agreement between, amongst others, the Company and the
Lereko Property Company (Proprietary) Limited existing on the date of this
Agreement and provided that the aggregate value of all such Disposals does not
exceed Euro 35,000,000 (or its equivalent in another currency or currencies).


 


“Permitted SMF Plantation
Disposal” means a Disposal of any of the plantations owned by Sappi
Manufacturing or any of its Subsidiaries or Usutu Pulp Co Ltd, provided that:


 


14














 


(a)                                 the disposal
is on arm’s length terms and for fair market value;


 


(b)                                 the Disposal
Proceeds in respect of such Disposal are applied in prepayment of Financial
Indebtedness in accordance with Clause 8.4 (Disposal Proceeds
); and


 


(c)                                  no Event of
Default is continuing at the date of the Disposal.


 


“PwC Report”
means a report prepared by PricewaterhouseCoopers and dated 4 August 2009
relating to the assumptions in connection with the Base Case Model and
addressed to, and/or capable of being relied upon by, the Finance Parties.


 


“Qualifying Lender”
has the meaning given to it in Clause 13 (Tax
Gross-Up and indemnities).


 


“Quarter” means
each period of approximately three months ending on a Quarter Date.


 


“Quarter Date”
means the Company’s quarterly accounting date on or around the end of any
March, June, September or December.


 


“Quotation Day”
means in relation to any period for which an interest rate is to be determined:


 


(a)                                 (if the
currency is Sterling) the first day of that period;


 


(b)                                 (if the
currency is Euro) two TARGET Days before the first day of that period; or


 


(c)                                  (for any other
currency) two Business Days before the first day of that period,


 


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


 


“Rating” means
the credit ratings assigned as follows:


 


(a)                                 the rating
assigned by Standard & Poor’s to the Group’s long-term senior secured
debt; and


 


(b)


 


(i)                                     while Moody’s
do not assign a credit rating to the Group, the rating assigned by Moody’s to
Sappi Papier Holding GmbH’s long-term senior secured debt (benefiting from the
guarantee given by Sappi Limited); or


 


(ii)                                  while Moody’s
assign a credit rating to the Group, the rating assigned by Moody’s to the
Company’s long-term senior secured debt not credit enhanced.


 


“Receiver” means
under the applicable insolvency law a receiver or preliminary receiver or
receiver and manager or administrative receiver of the whole or any part of the
Charged Property.


 


“Reference Banks”
means, in relation to LIBOR, the principal London office of Citibank, N.A.,
HSBC Bank plc and J.P. Morgan Europe Limited and, in relation to EURIBOR, the
principal offices in Brussels or London, as applicable, of Citibank N.A., HSBC
Bank plc, J.P. 


 


15

















 


Morgan Europe Limited and KBC Bank NV
or such other banks as may be appointed by the Agent in consultation with the
Company.


 


“Related Fund”
in relation to a fund (the “first fund”),
means a fund which is managed or advised by the same investment manager or
investment adviser as the first fund or, if it is managed by a different
investment manager or investment adviser, a fund whose investment manager or
investment adviser is an Affiliate of the investment manager or the investment
adviser of the first fund.


 


“Relevant Interbank Market”
means in relation to Euro, the European interbank market and, in relation to
any other currency, the London interbank market.


 


“Relevant Period”
has the meaning ascribed to that term in Clause 21.2 (Financial
definitions).


 


“Repeating Representations”
means each of the representations set out in Clauses 19.1 (Status)
to 19.6 (Governing law and enforcement)
inclusive, Clause 19.9 (No Default),
paragraph (e) of Clause 19.10 (No misleading information),
Clause 19.13 (Business Authorisations), Clause
19.14 (Pari passu ranking), Clause 19.21 (Centre of main interests and establishments), Clause 19.26 (Representations relating to Guarantee by Austrian Guarantors),
Clause 19.28 (Representation relating to the Belgian
Borrower), Clause 19.29 (Good title to assets)
and Clause 19.31 (No immunity in any legal process).


 


“Representative”
means any delegate, agent, manager, administrator, nominee, attorney, trustee
or custodian.


 


“Required Accessions”
means the accession of the relevant Original Guarantors to the relevant
Existing Finance Documents as set out in Schedule 14 (Required
Accessions and Consents).


 


“Required Amendments”
means the amendments required to the relevant Existing Finance Documents as set
out in Schedule 13 (Required Amendments).


 


“Required Consents”
means the consents required under the Existing Finance Documents in order to
permit the entry into and performance of the Finance Documents and the
Transaction Security as set out in Schedule 14 (Required
Accessions and Consents).


 


“Reservations”
means the principle that equitable remedies are remedies which may be granted
or refused at the discretion of the court, the limitation of enforcement by
laws relating to bankruptcy, insolvency, liquidation, reorganisation, court
schemes, moratoria, administration and other laws generally affecting the
rights of creditors, the time barring of claims under applicable limitations
acts, the possibility that an undertaking to assume liability for or to
indemnify a person against non-payment of United Kingdom stamp duty may be
void, defences of set-off or counterclaim and similar principles, rights and
defences under the laws of any foreign jurisdictions in which relevant
obligations may have to be performed, and any qualifications relating to
matters of law contained in or referred to in the legal opinions to be
delivered to the Agent pursuant to paragraph 3 of Part I of Schedule 2 (Conditions Precedent to Initial Utilisation)
or paragraph 18 of Part II of Schedule 2 (Conditions
Precedent required to be delivered by an Additional Obligor).


 


“Resignation Letter”
means a letter substantially in the form set out in Schedule 7 (Form of Resignation Letter).


 


“Rollover
Loan” means one or more Loans:


 


16

















 


(a)                                 made or to be
made on the same day that one or more maturing Loan(s) is or are due to be
repaid;


 


(b)                                 the aggregate
amount of which is equal to or less than the maturing Loan(s) (unless it
is more than the maturing Loan(s) solely because it arose as a result of
the operation of Clause 6.2 (Unavailability
of a currency));


 


(c)                                  in the same
currency as the maturing Loan(s) (unless it arose as a result of the
operation of Clause 6.2 (Unavailability of a
currency)); and


 


(d)                                 made or to be
made for the purpose of refinancing a maturing Loan.


 


“Sappi Manufacturing”
means Sappi Manufacturing (Pty) Ltd.


 


“Sappi Manufacturing Group”
means Sappi Manufacturing and its Subsidiaries for the time being and “Sappi Manufacturing Group Company” means
any one of the same.


 


“Sappi Manufacturing Group
Indebtedness” means Financial Indebtedness incurred by Sappi
Manufacturing Group Companies.


 


“SARB Approvals”
means any authorisation consent, approval, resolution, licence, exemption,
filings, registration or clearance from the South African Reserve Bank in
respect of the approvals required in connection with the New Financings and the
Finance Documents (including the South African Security Documents) including,
without limitation, the approvals set out in paragraph 5(j) of
Part I of Schedule 2 (Conditions Precedent to
Initial Utilisation).


 


“Screen Rate”
means:


 


(a)                                 in relation to
LIBOR, the British Bankers Association Interest Settlement Rate for the
relevant currency and period; and


 


(b)                                 in relation to
EURIBOR, the percentage rate per annum determined by the Banking Federation of
the European Union for the relevant period,


 


displayed on the appropriate page of the Reuters
screen. If the agreed page is replaced or service ceases to be available,
the Agent may specify another page or service displaying the appropriate
rate after consultation with the Company and the Lenders.


 


“Secured Obligations”
has the meaning given to that term in the Intercreditor Agreement.


 


“Secured Parties”
means each Finance Party from time to time party to this Agreement and any
Receiver or Delegate.


 


“Security”
means a mortgage, charge, pledge, security assignment, security transfer, lien,
or any other security interest securing any obligation of any person or any
other agreement or arrangement having the effect of giving security or
preferential ranking to a creditor.


 


“Senior Creditor”
has the meaning given to that term in the Intercreditor Agreement.


 


“Signing Date”
means the date of signing of this Agreement.


 


“SISA” means Sappi International SA.


 


“South African Obligor”
means an Obligor incorporated in South Africa.


 


17

















 


“South African Security
Documents” means each of the South African security documents listed
in Part VI of Schedule 15 (Transaction Security
Documents) in each case securing the Secured Obligations.


 


“Specified Time”
means a time determined in accordance with Schedule 11 (Timetables).


 


“Stamp Duty Guidelines”
means the stamp duty guidelines set out in Schedule 12 (Stamp Duty Guidelines).


 


“Stamp Duty Sensitive
Document” means (i) any original of any Finance Document or
Existing Finance Document and (ii) any signed document (including email,
PDF, TIF and other comparable formats) that constitutes a deed (Urkunde) within the meaning of § 15 of the Austrian
Stamp Duty Act (as interpreted by the Austrian tax authorities), whether
documenting or confirming the entering into of the relevant transaction (rechtserzeugende Urkunde) or documenting that the relevant
transaction has been entered into (rechtsbezeugende Urkunde),
or a substitute deed (Ersatzurkunde)
within the meaning of § 15 of the Austrian Stamp Duty Act (as interpreted
by the Austrian tax authorities), including, without limitation, any notarised
copy, any certified copy and any written minutes recording the transactions (Rechtsgeschäfte) contemplated by, or referenced in, any
Finance Document or Existing Finance Document.


 


“Standard & Poors”
or “S&P” means Standard & Poor’s
Rating Service.


 


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


 


(a)                                 which is
controlled, directly or indirectly, by the first mentioned company or
corporation;


 


(b)                                 more than half
the issued share capital of which is beneficially owned, directly or
indirectly, by the first mentioned company or corporation; or


 


(c)                                  which is a
Subsidiary of another Subsidiary of the first mentioned company or corporation,


 


and for this purpose, a company or corporation shall be
treated as being controlled by another if that other company or corporation is
able to direct its affairs and/or to control the composition of its board of
directors or equivalent body.


 


“Super-Majority Lenders”
means:


 


(a)                                 until the Total Commitments have been reduced to zero, a
Lender or Lenders whose Commitments aggregate more than 90 per cent. of the
Total Commitments (or, if the Total Commitments have been reduced to zero, and
there are no Loans then outstanding, aggregated more than 90 per cent. of the
Total Commitments immediately prior to that reduction); or


 


(b)                                 at any other time, a Lender or Lenders whose
participations in the Facility then outstanding aggregate more than 90 per
cent. of the Facility then outstanding.


 


“Swiss Security Documents”
means each of the Swiss security documents listed in Part VIII of Schedule
15 (Transaction Security Documents) in each
case securing the Secured Obligations.


 


“Syndication Date”
means the date of the “Close of Syndication” as defined in the Mandate Letter.


 


18

















 


“TARGET2” means
the Trans-European Automated Real-time Gross Settlement Express Transfer
payment system which utilises a single shared platform and which was launched
on 19 November 2007.


 


“TARGET Day”
means any day on which TARGET2 is open for the settlement of payments in Euro.


 


“Tax” means any
tax, levy, impost, duty or other charge or withholding of a similar nature
(including any penalty or interest payable in connection with any failure to
pay or any delay in paying any of the same) and “Taxes”
shall be construed accordingly.


 


“Tax Deduction”
has the meaning given to it in Clause 13 (Tax Gross-Up and
Indemnities).


 


“Termination Date”
means 31 May 2012.


 


“Third Party Disposal”
has the meaning given to that term in Clause 25.3 (Resignation
of a Borrower).


 


“Total Commitments”
means the aggregate of the Commitments, being Euro 209,000,000 at the date of
this Agreement.


 


“Transaction Security”
means any Security created or expressed to be created in favour of the Security
Agent pursuant to the Transaction Security Documents.


 


“Transaction Security
Documents” means each of the Austrian Security Documents, the
Belgian Security Documents, the Dutch Security Documents, the English Security
Document, the Finnish Security Documents, the German Security Documents, the
South African Security Documents, the Swiss Security Documents, the US Security
Documents, any document required to be delivered under paragraph 17 of Part II
of Schedule 2 (Conditions Precedent), together
with any other document entered into by an Obligor creating or expressed to
create any security over all or any part of its assets in respect of the
Secured Obligations of any Obligor under the Finance Documents.


 


“Transfer Certificate”
means a certificate substantially in the form set out in Part I of
Schedule 5 (Form of Transfer
Certificate) or any other form agreed between the Agent and the
Company.


 


“Transfer Date”
means, in relation to a transfer, the later of:


 


(a)                                 the proposed
Transfer Date specified in the Transfer Certificate or the Austrian Transfer
Certificate, as the case may be; and


 


(b)                                 the date on
which the Agent executes the Transfer Certificate or receives the Austrian
Transfer Certificate and the Assignment and Transfer Fee, as the case may be.


 


“Treasury Transaction”
means any derivative transaction entered into in connection with protection
against or benefit from fluctuation in any rate or price.


 


“Treaty Lender”
has the meaning given to that term in Clause 13 (Tax Gross Up
and Indemnities).


 


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


 


“URG” means the
Austrian Business Reorganisation Act (Unternehmensre-organisationsgesetz).


 


19

















 


“US Guarantors”
means a Guarantor organized under the laws of any state of the United States of
America or the District of Columbia.


 


“US Security Documents”
means each of the US security documents listed in Part VII of Schedule 15
(Transaction Security Documents) in each
case securing the Secured Obligations.


 


“Utilisation”
means a utilisation of the Facility.


 


“Utilisation  Date” means the date of a Utilisation,
being the date on which a Loan is to be made.


 


“Utilisation Fee”
means the fee payable pursuant to the terms set out in Clause 12.2 (Utilisation fee)


 


“Utilisation  Request” means a notice substantially in
the form set out in Schedule 3 (Utilisation
Request).


 


“VAT” means
value added tax as provided for in the Value Added Tax Act 1994, the German
Value Added Tax Act (Umsatzsteuergesetz), the Belgian VAT Code of 3 July 1969 (as amended and
supplemented from time to time), the Netherlands Value Added Tax Act 1968 (Wet opde Omzetbelasting 1968) and any other tax of a similar
nature.


 


“Vendor Loan Notes”
means the Euro 220,000,000 vendor loan notes issued by Sappi Papier Holding
GmbH in connection with the Company’s acquisition of certain assets from M-Real
Corporation issued pursuant to the Vendor Loan Notes Instrument.


 


“Vendor Loan Notes
Instrument” means the instrument constituting guaranteed and
unsecured loan notes due 2009 dated 31 December 2008 between, amongst
others, Sappi Papier Holding GmbH, the Company, certain subsidiaries of the
Company listed as guarantors and M-Real Corporation as original noteholder.


 


1.2                               Construction


 


(a)                                 Any reference in this Agreement to:


 


(i)                                     the “Agent”, the “Mandated Lead  Arrangers”, any
“Finance Party”, any “Lender”, any “Obligor”, any “Secured Party”, the “Security Agent”,
any “Party”, or any other person shall be
construed so as to include its successors in title, permitted assigns and
permitted transferees;


 


(ii)                                  a document in “agreed form” is
a document which is agreed in writing by or on behalf of the Company and the
Agent;


 


(iii)                               “assets”
includes present and future properties, revenues and rights of every
description;


 


(iv)                                the “equivalent” in
any currency (the “first currency”)
of any amount in another currency (the “second currency”)
shall be construed as a reference to the amount in the first currency which
could be purchased with that amount in the second currency at the Agent’s Spot
Rate of Exchange for the purchase of the first currency with the second
currency in the London foreign exchange market at or about 11:00 a.m. on a
particular day (or at or about such time and on such date as the Agent may from
time to time reasonably determine to be appropriate in the circumstances);


 


20

















 


(v)                                   the “European interbank
market” means the interbank market for Euro operating in Participating
Member States;


 


(vi)                                a “Finance Document”
or any other agreement or instrument is a reference to that Finance Document or
other agreement or instrument as amended or novated;


 


(vii)                             “guarantee”
means (other than in Clause 18 (Guarantee and Indemnity))
any guarantee, letter of credit, bond, indemnity or similar assurance against
loss, or any obligation, direct or indirect, actual or contingent, to purchase
or assume any indebtedness of any person or to make an investment in or loan to
any person or to purchase assets of any person where, in each case, such
obligation is assumed in order to maintain or assist the ability of such person
to meet its indebtedness;


 


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


 


(ix)                                a Lender’s “participation”,
in relation to: a Loan, means the amount of such Loan that is owed to such
Lender or, as the case may be, the amount of such Loan that such Lender is
obliged to make available;


 


(x)                                   a “person”
includes any person, firm, company, corporation, government, state or agency of
a state or any association, trust or partnership (whether or not having
separate legal personality) or two or more of the foregoing;


 


(xi)                                a “regulation”
includes any regulation, rule, official directive, request or guideline
(whether or not having the force of law but if not having the force of law,
being a regulation or the like with which the persons to whom it is addressed
customarily comply in the ordinary course of their business) of any
governmental, intergovernmental or supranational body, agency, department or
regulatory, self-regulatory or other authority or organisation;


 


(xii)                             a provision of law is a reference to that provision as
amended or re-enacted;


 


(xiii)                          unless a contrary indication appears, a time of day is a
reference to London time;


 


(xiv)                           for the purposes of Clause 13.5 (Stamp Taxes)
and Schedule 12 (Stamp Duty Guidelines), “written” shall mean that what is “written” was translated
into letters (Buchstaben) that are or can be
made visible on a physical or electronic device of whatever type and format,
including paper and screen, and, accordingly, communication, documents or
notices being “in writing” shall include not only
paper-form (letter or fax) communication, documents or notices but also
electronic communication, documents or notices, including by way of e-mail; and


 


(xv)                              for the purposes of Clause 13.5 (Stamp Taxes)
and Schedule 12 (Stamp Duty Guidelines), “signed” communication, documents or notices refers to
written communication, documents or notices that carry a manuscript, digital or
electronic or other technically reproduced signature, and “signature” shall be construed accordingly.


 


(b)                                 where there is reference in this Agreement to any amount,
limit or threshold specified in Euro or Dollars, in ascertaining whether or not
that amount, limit or threshold has


 


21

















 


been attained, broken or achieved, as the
case may be, a non-Euro or non-Dollar amount shall be counted on the basis of
the equivalent in Euro or Dollars, as the case may be, of that amount.


 


(c)                                  Section, Clause and Schedule headings are for ease of
reference only.


 


(d)                                 Unless a contrary indication appears, a term used in any
other Finance Document or in any notice given under or in connection with any
Finance Document has the same meaning in that Finance Document or notice as in
this Agreement.


 


(e)                                 A Default is “continuing” if
it has not been remedied or waived and an Event of Default is “continuing” if it has not been remedied or waived unless it
is one of the Events of Default listed below, in which case it is “continuing” if it has not been waived (whether or not it is
subsequently remedied).  The Events of
Default referred to above means any circumstance constituting an Event of
Default under:


 


(i)                                     Clause 23.1 (Non-payment);


 


(ii)                                  Clause 23.2 (Financial covenants and other obligations);


 


(iii)                               Clause 23.3 (Other obligations) arising as a result of a breach of Clause
22.7 (Negative pledge), Clause 22.8 (Disposals), 22.16 (Acquisitions and Joint
Ventures) or Clause 22.22 (Dividend restriction);


 


(iv)                                Clause 23.6 (Insolvency);


 


(v)                                   Clause 23.7 (Insolvency Proceedings);


 


(vi)                                Clause 23.8 (Creditors’ process);


 


(vii)                             Clause 23.9 (Obligor ceasing to be a subsidiary of the Company);


 


(viii)                          Clause 23.10 (Unlawfulness);


 


(ix)                                Clause 23.11 (Repudiation);


 


(x)                                   Clause 23.14 (Cessation of business); or


 


(xi)                                Clause 23.15 (Audit qualification).


 


1.3                               Currency symbols and definitions


 


(a)                                 “EUR” and “Euro” means the single currency unit of the
Participating Member States.


 


(b)                                 “$”, “Dollars”, “USD” and “US$” means the lawful currency of the United States of
America.


 


1.4                               Dutch Terms


 


In this Agreement, where it relates to
a Dutch Obligor, a reference to:


 


(a)           a necessary action to authorise,
where applicable, includes without limitation:


 


(i)                                     any action
required to comply with the Dutch Works Council Act (Wet op de  ondernemingsraden);
and


 


22

















 


(ii)                                  obtaining
unconditional positive advice (advies)
from each competent works council;


 


(b)           a winding-up, administration or
dissolution includes a Dutch Obligor being:


 


(i)                                     declared
bankrupt (failliet verklaard);


 


(ii)                                  dissolved (ontbonden);


 


(c)                                  a moratorium
includes surseance van betaling and voorlopige surseance van betaling and granted a moratorium
includes surseance van betaling verleend and voorlopige surceance van betaling verleend;


 


(d)           a liquidator includes a curator and a bewindvoerder;
and


 


(e)           an attachment includes a beslag.


 


1.5                               Third party rights


 


A person who is not a party to this Agreement has no right
under the Contracts (Rights of Third Parties) Act 1999 to enforce or enjoy the
benefit of any term of this Agreement.


 


1.6                               Intercreditor Agreement


 


This Agreement is subject to the Intercreditor
Agreement.  In the event of any
inconsistency between this Agreement and the Intercreditor Agreement, the
Intercreditor Agreement shall prevail.


 


23














 


SECTION 2


 


THE FACILITY


 


2.                                      THE FACILITY


 


2.1                               The Facility


 


Subject to the terms
of this Agreement, the Lenders make available to the Borrowers a multicurrency
revolving loan facility in an aggregate amount of Euro 209,000,000.


 


2.2                               Finance Parties’ rights and obligations


 


(a)                                 The obligations of each Finance Party under the Finance
Documents are several. Failure by a Finance Party to perform its obligations
under the Finance Documents does not affect the obligations of any other Party
under the Finance Documents. No Finance Party is responsible for the
obligations of any other Finance Party under the Finance Documents.


 


(b)                                 The rights of each Finance Party under or in connection with
the Finance Documents are separate and independent rights and any debt arising
under the Finance Documents to a Finance Party from an Obligor shall be a
separate and independent debt.


 


(c)                                  A Finance Party may, except as otherwise stated in the
Finance Documents, separately enforce its rights under the Finance Documents.


 


2.3                               Increase


 


(a)                                 The Company may by giving prior notice to the Agent by
no later than the date falling 15 Business Days after the effective date of a
cancellation of the Available Commitments of a Defaulting Lender in accordance
with Clause 8.8 (Right of Cancellation in relation to a
Defaulting Lender) or the Commitments of a Lender in accordance with
Clause 8.1 (Illegality), request that the Total
Commitments be increased in an aggregate amount in the Base Currency of up to
the amount of the Available Commitments or Commitments so cancelled as follows
(the “Request”):


 


(i)                                     the increased Commitments may be assumed by one or
more Lenders or other banks or financial institutions (each an “Increase Lender”) selected by the Company (each of which
shall not be an Affiliate or a Group Company) and each of which confirms its
willingness to assume and does assume all the obligations of a Lender
corresponding to that part of the increased Total Commitments which it is to
assume, as if it had been an Original Lender;


 


(ii)                                  each of the Obligors and any Increase Lender shall
assume obligations towards one another and/or acquire rights against one
another as the Obligors and the Increase Lender would have assumed and/or
acquired had the Increase Lender been an Original Lender;


 


(iii)                               each Increase Lender shall become a Party as a “Lender”
and any Increase Lender and each of the other Finance Parties shall assume
obligations towards one another and acquire rights against one another as that
Increase Lender and those Finance Parties would have assumed and/or acquired
had the Increase Lender been an Original Lender;


 


24

















 


(iv)                                the Commitments of the other Lenders shall continue in
full force and effect; and


 


(v)                                   any increase in the Total Commitments shall take
effect on the date specified by the Company in the notice referred to above or
any later date on which the conditions set out in paragraph (b) below are
satisfied.


 


(b)                                 An increase in the Total Commitments will only be
effective on:


 


(i)                                     in the case of any Increase Lender which is not an
Austrian Lender, the execution by the Agent of an Increase Confirmation from
the relevant Increase Lender;


 


(ii)                                  in the case of any Increase Lender which is an
Austrian Lender, receipt by the Agent of (x) a duly completed Austrian
Increase Confirmation delivered to it by the Company and (y) the Increase
Fee; and


 


(iii)                               in relation to an Increase Lender (whether an Austrian
Lender or not) which is not a Lender immediately prior to the relevant increase:


 


(A)                                 the Increase Lender entering into the documentation
required for it to accede as a party to the Intercreditor Agreement; and


 


(B)                                the performance by the Agent of all necessary “know
your customer” or other similar checks under all applicable laws and
regulations in relation to the assumption of the increased Total Commitments by
that Increase Lender, the completion of which the Agent shall promptly notify
to the Company and the Increase Lender.


 


(c)                                  Each Increase Lender, by executing the Increase
Confirmation or accepting the Austrian Increase Confirmation (as the case may
be), confirms (for the avoidance of doubt) that the Agent has authority to
execute on its behalf any amendment or waiver that has been approved by or on
behalf of the requisite Lender or Lenders in accordance with this Agreement on
or prior to the date on which the increase becomes effective.


 


(d)                                 Unless the Agent otherwise agrees with the Company or
the increase in the Total Commitments is assumed by an existing Lender, Sappi
Papier Holding GmbH shall, on the date upon which the increase takes effect,
pay to the Agent (for its own account) a fee of EUR 1,500 and Sappi Papier
Holding GmbH shall promptly on demand pay the Agent and the Security Agent the
amount of all costs and expenses (including legal fees) reasonably incurred by
either of them and, in the case of the Security Agent, by any Receiver or
Delegate in connection with any increase in Commitments under this Clause 2.3.


 


(e)                                 Sappi Papier Holding GmbH may pay to the Increase
Lender a fee in the amount and at the times agreed between Sappi Papier Holding
GmbH and the Increase Lender in a Fee Letter.


 


(f)                                     Clause 24.4 (Limitation of
responsibility of Existing Lenders) shall apply mutatis mutandis in
this Clause 2.3 in relation to an Increase Lender as if references in that
Clause to:


 


(i)                                     an “Existing Lender”
were references to all the Lenders immediately prior to the relevant increase;


 


25

















 


(ii)                                  the “New Lender”
were references to that “Increase Lender”; and


 


(iii)                               a “re-transfer” and “re-assignment”
were references to respectively a “transfer” and “assignment”.


 


(g)                                 For the avoidance of doubt, nothing in this Clause
shall oblige any Lender hereunder to assume any increased Commitments.


 


2.4                               Obligors’ Agent


 


(a)                                 Each Obligor (other than SISA) by its execution of this
Agreement or an Accession Letter irrevocably appoints SISA to act on its behalf
as its agent in relation to the Finance Documents and irrevocably authorises:


 


(i)                                     SISA on its behalf to supply and to receive all information
concerning itself contemplated by this Agreement to or from the Finance Parties
and to give and to receive all notices and instructions (including, in the case
of a Borrower, Utilisation Requests), to execute on its behalf any Accession
Letter, and to make such agreements and to effect the relevant amendments,
supplements and variations capable of being given, made or effected by any
Obligor notwithstanding that they may affect the Obligor, without further
reference to or the consent of that Obligor; and


 


(ii)                                  each Finance Party to receive from and to give any notice,
demand or other communication from or to that Obligor pursuant to the Finance
Documents to SISA,


 


and in each case the Obligor shall be bound
as though the Obligor itself had given the notices and instructions (including,
without limitation, any Utilisation Requests) or executed or made the
agreements or effected the amendments, supplements or variations, or received
the relevant notice, demand or other communication.


 


(b)                                 Every act, omission, agreement, undertaking, settlement,
waiver, amendment, supplement, variation, notice or other communication given
or made by the Obligors’ Agent or given to the Obligors’ Agent under any
Finance Document on behalf of another Obligor or in connection with any Finance
Document (whether or not known to any other Obligor and whether occurring
before or after such other Obligor became an Obligor under any Finance
Document) shall be binding for all purposes on that Obligor as if that Obligor
had expressly made, given or concurred with it. In the event of any conflict
between any notices or other communications of the Obligors’ Agent and any
other Obligor, those of the Obligors’ Agent shall prevail.


 


(c)                                  With respect to this Clause 2.4, to the extent legally
possible, the Obligor’s Agent shall be released from the restrictions of
self-dealing set forth in Section 181 of the German Civil Code and all
other limitations as concerns self-dealing on its own account or on behalf of
another person.


 


2.5                               Acts of SISA


 


(a)                                 The respective liabilities of each of the Obligors under the
Finance Documents shall not be in any way affected by:


 


(i)                                     any actual or purported irregularity in any act done, or
failure to act, by SISA;


 


26

















 


(ii)                                  SISA acting (or purporting to act) in any respect outside any
authority conferred upon it by any Obligor; or


 


(iii)                               any actual or purported failure by, or inability of, SISA to
inform any Obligor of receipt by it of any notification under the Finance
Documents.


 


(b)                                 In the event of any conflict between any notices or other
communications of SISA and those of any other Obligor, those of SISA shall
prevail.


 


3.                                      PURPOSE


 


Each Borrower shall apply all amounts
borrowed by it under the Facility towards:


 


(a)                                 the general corporate purposes of the Group; and/or


 


(b)                                 the repayment and discharge of the Existing RCF Facility;
and/or


 


(c)                                  costs and expenses incurred in connection with paragraph (b) above.


 


3.2                               Monitoring


 


No Finance Party is
bound to monitor or verify the application of any amount borrowed pursuant to
this Agreement.


 


4.                                      CONDITIONS OF UTILISATION


 


4.1                               Initial conditions precedent


 


No Borrower may
deliver a Utilisation Request unless the Agent has received all of the
documents and other evidence listed in Part I of Schedule 2 (Conditions Precedent to Initial Utilisation)
in form and substance satisfactory to the Agent. The Agent shall notify the
Company and the Lenders promptly upon being so satisfied.


 


4.2                               Further conditions precedent


 


The Lenders will only be obliged to comply
with Clause 5.4 (Lenders’ participation)
if on the date of the Utilisation Request and on the proposed Utilisation Date
(other than in the case of a Rollover Loan):


 


(a)                                 no Default is continuing or would result from the proposed
Loan; and


 


(b)                                 the Repeating Representations to be made by each Obligor are
true in all material respects.


 


4.3                               Conditions relating to Optional Currencies


 


(a)                                 A currency will constitute an Optional Currency in relation
to a Loan if:


 


(i)                                     it is readily available in the amount required and freely
convertible into the Base Currency in the Relevant Interbank Market on the
Quotation Day and the Utilisation Date for that Loan; and


 


(ii)                                  it is Dollars or has been approved by the Agent (acting on
the instructions of all the Lenders) prior to receipt by the Agent of the
relevant Utilisation Request for that Loan.


 


27

















 


(b)                                 If the Agent has received a written request from the Company
by the Specified Time for a currency to be approved under paragraph (a)(ii) above,
the Agent will confirm to the Company by the Specified Time:


 


(i)                                     whether or not the Lenders have granted their approval; and


 


(ii)                                  if approval has been granted, the minimum amount (and, if
required, integral multiples) for any subsequent Utilisation in that currency.


 


4.4                               Maximum number of Loans


 


(a)                                 A Borrower may not deliver a Utilisation Request if as a
result of the proposed Utilisation more than 10 Loans would be outstanding.


 


(b)                                 Any Loan made by a single Lender under Clause 6.2 (Unavailability of a currency) shall not be
taken into account in this Clause 4.4.


 


28

















 


SECTION 3



UTILISATION


 


5.                                      UTILISATION


 


5.1                               Delivery of a Utilisation Request


 


A Borrower may
utilise the Facility by delivery to the Agent of a duly completed Utilisation
Request not later than the Specified Time.


 


5.2                               Completion of a Utilisation Request


 


(a)                                 Each Utilisation Request is irrevocable and will not be
regarded as having been duly completed unless:


 


(i)                                     the proposed Utilisation Date is a Business Day within the
Availability Period;


 


(ii)                                  the currency and amount of the Utilisation comply with Clause
5.3 (Currency and amount); and


 


(iii)                               the proposed Interest Period complies with Clause 10 (Interest Periods).


 


(b)                                 Only one Loan may be requested in each Utilisation Request.


 


5.3                               Currency and amount


 


(a)                                 The currency specified in a Utilisation Request must be the
Base Currency or an Optional Currency.


 


(b)                                 The amount of the proposed Loan must be an amount whose Base
Currency Amount is not more than the Available Facility and which:


 


(i)                                     if the currency selected is the Base Currency, is a minimum
of Euro 25,000,000 or, if less, the Available Facility and an integral multiple
of Euro 5,000,000; or


 


(ii)                                  if the currency selected is Dollars, is a minimum of
$25,000,000 or, if less, the Available Facility and an integral multiple of
$5,000,000; or


 


(iii)                               if the currency selected is an Optional Currency other than
Dollars, is the minimum amount (or an integral multiple, if required) specified
by the Agent pursuant to paragraph (b) (ii) of Clause 4.3 (Conditions relating to Optional Currencies)
or, if less, the Available Facility.


 


5.4                               Lenders’ participation


 


(a)                                 If the conditions set out in this Agreement have been met and
subject to Clause 7 (Repayment),
each Lender shall make its participation in each Loan available to the Agent
for the account of the relevant Borrower through its Facility Office.


 


(b)                                 The amount of each Lender’s participation in each Loan will
be equal to the proportion borne by its Available Commitment to the Available
Facility immediately prior to the making of the Loan.


 


29

















 


(c)                                  The Agent shall determine the Base Currency Amount of each
Loan which is to be made in an Optional Currency and shall notify each Lender
of the amount, currency and the Base Currency Amount of each Loan and the
amount of its participation in that Loan (and, if different, the amount of that
participation to be made available in cash), in each case by the Specified
Time.


 


5.5                               Cancellation of Commitment


 


The Commitments
which, at the time, are unutilised shall be immediately cancelled at the end of
the Availability Period.


 


6.                                      OPTIONAL CURRENCIES


 


6.1                               Selection of currency


 


A Borrower (or the
Company on behalf of a Borrower) shall select the currency of a Loan in the
Utilisation Request.


 


6.2                               Unavailability of a currency


 


If before the
Specified Time on any Quotation Day in relation to a Loan:


 


(a)                                 the Agent has received notice from a Lender that the Optional
Currency requested is not readily available to it in the amount required or it
has received a notice from a Euro-only Lender; or


 


(b)                                 a Lender notifies the Agent that compliance with its
obligation to participate in a Loan in the proposed Optional Currency would
contravene a law or regulation applicable to it;


 


the Agent will give
notice to the relevant Borrower to that effect by the Specified Time on that
day. In this event, any Lender that gives notice pursuant to this Clause 6.2
will be required to participate in the Loan in the Base Currency (in an amount
equal to that Lender’s proportion of the Base Currency Amount or, in respect of
a Rollover Loan, an amount equal to that Lender’s proportion of the Base
Currency Amount of the maturing Loan that is due to be repaid) and its
participation will be treated as a separate Loan denominated in the Base
Currency during that Interest Period.


 


6.3                               Participation in a Loan


 


Each Lender’s
participation in a Loan will be determined in accordance with paragraph (b) of
Clause 5.4 (Lenders’ participation).


 


30














 


SECTION 4



REPAYMENT, PREPAYMENT AND CANCELLATION


 


7.           REPAYMENT


 


(a)           Subject to paragraph (c) below, each Borrower which has
drawn a Loan shall repay that Loan on the last day of its Interest Period.


 


(b)           All Loans shall be repaid in full (together with all amounts
owing and due to the Finance Parties, whether for accrued or unpaid interest,
fees or other amounts) on the Termination Date.


 


(c)           Without prejudice to each Borrower’s obligation under
paragraph (a) above, if one or more Loans are to be made available to a
Borrower:


 


(i)            on the same day that a maturing Loan is due to be
repaid by that Borrower;


 


(ii)           in the same currency as the maturing Loan (unless it
arose as a result of the operation of Clause 6.2 (Unavailability
of a currency)); and


 


(iii)          in whole or in part for the purpose of refinancing the
maturing Loan;


 


the aggregate amount of the new Loans shall be treated as if applied in
or towards repayment of the maturing Loan so that:


 


(i)            if the amount of the maturing Loan exceeds the
aggregate amount of the new Loans:


 


(A)           the relevant Borrower will only be required to pay an
amount in cash in the relevant currency equal to that excess; and


 


(B)           each Lender’s participation (if any) in the new Loans
shall be treated as having been made available and applied by the Borrower in
or towards repayment of that Lender’s participation (if any) in the maturing
Loan and that Lender will not be required to make its participation in the new
Loans available in cash; and


 


(ii)           if the amount of the maturing Loan is equal to or less
than the aggregate amount of the new Loans:


 


(A)           the relevant Borrower will not be required to make any
payment in cash; and


 


(B)           each Lender will be required to make its participation
in the new Loans available in cash only to the extent that its participation
(if any) in the new Loans exceeds that Lender’s participation (if any) in the
maturing Loan and the remainder of that Lender’s participation in the new Loans
shall be treated as having been made available and applied by the Borrower in
or towards repayment of that Lender’s participation in the maturing Loan.


 


31

















 


8.           PREPAYMENT AND CANCELLATION


 


8.1         Illegality


 


If, at any
time after the date of this Agreement, it becomes unlawful in any applicable
jurisdiction for a Lender to perform any of its obligations as contemplated by
this Agreement or to fund its participation in any Loan:


 


(a)           that Lender shall promptly notify the Agent upon becoming
aware of that event;


 


(b)           upon the Agent notifying the Company, the Commitment of that
Lender will be immediately cancelled; and


 


(c)           each Borrower shall repay that Lender’s participation in the
Loans made to that Borrower on the last day of the Interest Period for each
Loan occurring after the Agent has notified the Company or, if earlier, the
date specified by the Lender in the notice delivered to the Agent (being no
earlier than the last day of any applicable grace period permitted by law).


 


8.2         South
Africa


 


If at any time
there is any amendment, repeal, revocation, termination or expiration
hereinafter of any SARB Approval which in the case of an amendment only, is or
could reasonably be expected to be materially prejudicial to the interests of
the Finance Parties:


 


(a)           each Borrower shall promptly notify the Agent upon becoming
aware of such event;


 


(b)           the Lenders shall not be obliged to fund a relevant
Utilisation; and


 


(c)           if the Majority Lenders so require, the Agent shall cancel
the Commitments and all outstanding Loans, together with accrued interest and
all other amounts accrued under the Finance Documents shall become immediately
due and payable.


 


8.3         Exit


 


(a)           For the purposes of this Clause 8.3:


 


(i)            “associated person” means, in relation to
any person, a person who is acting in concert (as defined in The City Code on
Takeover and Mergers) with that person or is a person connected (as interpreted
in accordance with section 839 of the Income and Corporation Taxes Act 1988)
with that person; and


 


(ii)           a
“Change of Control” shall occur if on
any date a person (whether alone or together with any associated person or
persons acting in concert) becomes the beneficial owner of shares in the issued
share capital of the Company carrying the right to exercise, or control the
exercise of, more than 35 per cent. of the maximum number of votes exercisable
at a general meeting of the Company.


 


(b)           Upon the occurrence of:


 


(i)            a
Change of Control; or


 


(ii)           the
sale of all or substantially all of the assets of the Group whether in a single
transaction or a series of related transactions,


 


32

















 


the Facility
will be cancelled and all outstanding Loans, together with accrued interest,
and all other amounts accrued under the Finance Documents, shall become immediately
due and payable.


 


8.4         Disposal
Proceeds


 


(a)           For the purposes of this Clause 8.4:


 


“Disposal Proceeds” means the aggregate amount of any
proceeds arising in a Financial Year in excess of Euro 10,000,000 received in
cash by any Group Company (including any amount received in repayment of
intercompany debt) for any Disposal made by any Group Company except for
Excluded Disposal Proceeds and after deducting:


 


(i)            any
reasonable expenses which are incurred by any Group Company with respect to
that Disposal to persons who are not a Group Company; and


 


(ii)           any
Tax incurred and required to be paid by any Group Company in connection with
that Disposal (as reasonably determined by any Group Company, on the basis of
existing rates and taking account of any available credit, deduction or
allowance actually utilised by the relevant Group Company).


 


“Excluded Disposal Proceeds” means:


 


(i)            the proceeds of any
Disposal referred to in paragraphs (i), (ii), (iii), (iv), (v), (vi), (vii),
(viii), (ix), (x), (xi) and (xii) of paragraph (a) of Clause 22.8 (Disposals).


 


(ii)           the proceeds of any
Disposal which are contractually committed to be re-invested in assets of any
Group Company within 6 months of receipt and actually re-invested in the assets
of any member of the Group within 12 months of receipt; or


 


(iii)          the proceeds of any Disposal which do
not exceed Euro 1,000,000.


 


(b)


 


(i)            If,
at the time of any Disposal there are Disposal Proceeds, the Company shall, or
shall procure that the Borrowers shall apply the Disposal Proceeds towards a
prepayment and in the order contemplated in paragraph (b) (ii) below
PROVIDED THAT:


 


(A)           the Net Debt to EBITDA as referred to in paragraph (b) of
Clause 21 (Financial Covenants) (the “Leverage Ratio”) calculated in accordance with sub-paragraphs
(B) and (C) below is greater than 4.0:1;


 


(B)           for the purposes of this Clause, the Leverage Ratio shall be
the Leverage Ratio specified in the most recent Compliance Certificate (the “Most Recent Compliance Certificate”) supplied pursuant to paragraph
(a) of Clause 20.2 (Compliance Certificate)
and subject to paragraph (C) below, calculated on a pro forma basis by
adjusting that Leverage Ratio to take into account any prepayment made or to be
made under this paragraph (b)(i) since the Most Recent Compliance
Certificate 


 


33

















 


and any EBITDA
attributable to any asset which is subject to the current Disposal or which has
been the subject of a Disposal by a Group Company, in each case since the last
day of the Relevant Period to which the Most Recent Compliance Certificate
relates; and


 


(C)          an adjustment shall only be made to the Leverage Ratio
specified in the Most Recent Compliance Certificate in respect of EBITDA
attributable to an asset subject to a Disposal to the extent that a certificate
of the Auditors verifying the calculation of such adjustments is delivered to
the Agent.


 


(ii)           Subject
to paragraph (c) below, any prepayment to be made under paragraph (b)(i) above
shall be applied to prepay first, amounts outstanding under any of the Existing
Finance Documents provided the maturity date in respect of the same is no later
than 31 December 2012, and second, in or towards prepayment of Loans and
loans under the OeKB Facility and a corresponding cancellation of Commitments
and commitments under the OeKB Facility (on a pro rata basis) until such time
as there are no Loans or loans under the OeKB Facility outstanding, subject
always to Clause 13 (Proceeds of Disposal)
of the Intercreditor Agreement, until an amount has been prepaid such that the
Leverage Ratio calculated on a proforma basis as described in (B) above is
no greater than 4.0:1.


 


(c)           To the extent that the Disposal Proceeds referred to in
paragraph (b)(i) above arise from the Disposal of assets in the Republic
of South Africa, the Company may by giving no less than ten (10) days
notice to the Agent use such Disposal Proceeds to prepay Financial Indebtedness
arising under South African debt facilities notwithstanding the date on which
such Financial Indebtedness arose or its date of maturity.


 


(d)           To the extent an application of the Disposal Proceeds in
accordance with paragraph (b) above results in a prepayment of the
Facility or the OeKB Facility, unless the Company makes an election under paragraph
(e) below, the Company shall (and shall procure that the Borrowers shall)
prepay the Loans (or loans under the OeKB Facility) promptly upon receipt of
the Disposal Proceeds.


 


(e)           Subject to paragraph (f) below, the Company may elect
that any prepayment under this Clause be applied in prepayment of a Loan (or a
loan under the OeKB Facility) on the last day of the Interest Period relating
to that Loan (or interest period relating to that loan under the OeKB
Facility).  If the Company makes that
election then the proportion of the Loan (or loan under the OeKB Facility)
equal to the amount of the relevant prepayment will be due and payable on the
last day of its Interest Period (or interest period under the OeKB Facility).


 


(f)            If the Company has made an election under paragraph (e) above
but an Event of Default has occurred and is continuing, that election shall no
longer apply and the proportion of the Loan (or loan under the OeKB Facility)
in respect of which the election was made equal to the amount of the relevant
prepayment shall be immediately due and payable (unless the Majority Lenders
otherwise agree in writing).


 


8.5         Voluntary
cancellation


 


The Company
may, if it gives the Agent not less than three Business Days’ (or such shorter
period as the Majority Lenders may agree) prior notice, cancel the whole or any
part (being a 


 


34

















 


minimum amount
of Euro 25,000,000 and in integral multiples of Euro 5,000,000) of the
Available Facility. Any cancellation under this Clause 8.5 shall reduce the
Commitments of the Lenders rateably.


 


8.6         Voluntary
prepayment of Loans


 


The Borrower
to which a Loan has been made may, if it gives the Agent not less than three
Business Days’ (or such shorter period as the Majority Lenders may agree) prior
notice, prepay the whole or any part of a Loan (but if in part, being an amount
that reduces the Base Currency Amount of the Loan by a minimum amount of Euro
5,000,000).


 


8.7         Right
of repayment and cancellation in relation to a single Lender


 


(a)           If:


 


(i)            any
sum payable to any Lender by an Obligor is required to be increased under
paragraph (c) of Clause 13.2 (Tax
gross-up); or


 


(ii)           any
Lender claims indemnification from the Company under Clause 13.3 (Tax indemnity) or Clause 14.1 (Increased Costs),


 


the Company
may, whilst the circumstance giving rise to the requirement for that increase
or indemnification continues, give the Agent notice of cancellation of the
Commitment of that Lender and its intention to procure the repayment of that
Lender’s participation in the Loans or give the Agent notice of its intention
to replace that Lender in accordance with paragraph (d) below.


 


(b)           On receipt of a notice referred to in paragraph (a) above,
the Commitment of that Lender shall immediately be reduced to zero.


 


(c)           On the last day of each Interest Period in respect of a Loan
outstanding under the Facility in respect of which the Company has given notice
under paragraph (a) above (or, if earlier, the date specified by the
Company in that notice), each Borrower to which a Loan is outstanding shall
repay that Lender’s participation in that Loan.


 


(d)           The Company may, in the circumstances set out in paragraph (a) above,
on 15 Business Days’ prior notice to the Agent and that Lender, replace that
Lender by requiring that Lender to (and, to the extent permitted by law, that
Lender shall) transfer pursuant to Clause 24 (Changes to
the Lenders) all (and not part only) of its rights and obligations
under this Agreement to a Lender or other bank, financial institution, trust,
fund or other entity selected by the Company which confirms its willingness to
assume and does assume all the obligations of the transferring Lender in
accordance with Clause 24 (Changes to the Lenders)
for a purchase price in cash or other cash payment payable at the time of the
transfer equal to the outstanding principal amount of such Lender’s
participation in the outstanding Loans and all accrued interest (to the extent
that the Agent has not given a notification under Clause 24.7 (Pro rata interest settlement)), Break Costs and other
amounts payable in relation thereto under the Finance Documents.


 


(e)           The replacement of a Lender pursuant to paragraph (d) above
shall be subject to the following conditions:


 


(i)            the
Company shall have no right to replace the Agent or the Security Agent;


 


(ii)           neither
the Agent nor any Lender shall have any obligation to find a replacement
Lender; and


 


35

















 


(iii)          in no event shall the Lender replaced under paragraph (d) above
be required to pay or surrender any of the fees received by such Lender
pursuant to the Finance Documents.


 


8.8         Right of Cancellation of a Defaulting Lender


 


(a)           If any Lender becomes a Defaulting Lender, the Company
may, at any time whilst the Lender constitutes a Defaulting Lender, give the
Agent 15 Business Days’ notice of cancellation of the Available Commitment of
that Lender;


 


(b)           Once notice referred to in paragraph (a) above
becomes effective, the Available Commitment of the Defaulting Lender shall be
immediately reduced to zero.


 


(c)           The Agent shall as soon as practicable after receipt
of a notice referred to in paragraph (a) above notify all the Lenders.


 


8.9         Restrictions


 


(a)           Any notice of cancellation or prepayment given by any Party
under this Clause 8 shall be irrevocable and, unless a contrary indication
appears in this Agreement, shall specify the date or dates upon which the
relevant cancellation or prepayment is to be made and the amount of that
cancellation or prepayment.


 


(b)           Any prepayment under this Agreement shall be made together
with accrued interest on the amount prepaid and, subject to any Break Costs,
without premium or penalty.


 


(c)           Unless a contrary indication appears in this Agreement, any
part of the Facility which is repaid or prepaid may be reborrowed in accordance
with the terms of this Agreement.


 


(d)           The Borrowers shall not repay or prepay all or any part of
the Loans or cancel all or any part of the Commitments except at the times and
in the manner expressly provided for in this Agreement.


 


(e)           No amount of the Total Commitments cancelled under this
Agreement may be subsequently reinstated.


 


(f)            If the Agent receives a notice under this Clause 8 it shall
promptly forward a copy of that notice to either the Company or the affected
Lender, as appropriate.


 


(g)           If all or part of a Loan is repaid or prepaid and is not
available for redrawing (other than by operation of Clause 4.2 (Further conditions precedent)), an amount of the Commitments
(equal to the Base Currency Amount of the Loan which is repaid or prepaid) will
be deemed to be cancelled on the date of repayment or prepayment.  Any cancellation under this paragraph (g) shall
reduce the Commitments of the Lenders rateably.


 


(h)           Subject to paragraph (j) below, if it is unlawful for a
Borrower to (or procure a Group Company to) make a prepayment under Clause 8.4
(Disposal Proceeds) and for such proceeds
to be so applied, the Borrower shall (and shall procure that each Group Company
shall) use all reasonable endeavours to overcome the prohibition to enable the
relevant prepayment to be made.  If,
subject always to the requirement for each Obligor using all reasonable
endeavours to overcome the prohibition it continues to be unlawful to make a
prepayment under Clause 8.4 (Disposal Proceeds),
then such prepayment will not be required to be made until such time as the
prohibition no longer applies, at which time the relevant Group Company will
immediately apply 


 


36

















 


such amount in
prepayment of the relevant facilities in accordance with the other provisions
of this Clause 8.


 


(i)            The provisions of paragraph (h) above shall be subject
always to the obligation to use other Group cash which is not subject to similar
restrictions to prepay an equivalent amount where the use of such cash would
not be materially prejudicial to the overall Group liquidity.


 


(j)            Prior to the Disposal of any assets located in The Republic
of South Africa where proceeds are required to be prepaid in accordance with
Clause 8.4 (Disposal Proceeds), the Company shall be
required to certify 10 Business Days prior to such disposal that the projected
Disposal Proceeds arising therefrom can and shall be applied in accordance with
Clause 8.4 (Disposal Proceeds) and deliver evidence
to the Agent that such application shall not be unlawful.  To the extent that such application of
projected Disposal Proceeds is unlawful, the Company shall not be entitled to
dispose of the assets referred to in this paragraph (j) without the prior
written consent of the Majority Lenders. 
If consent of the Majority Lenders is forthcoming, the provisions of
paragraphs (h) and (i) above shall apply.  This paragraph (j) does not apply in the
case of Disposal Proceeds applied pursuant to paragraph (c) of Clause 8.4
(Disposal Proceeds) above provided that
such prepayment is in accordance with the terms of Clause 8.4 (Disposal Proceeds).


 


37

















 


SECTION 5



COSTS OF UTILISATION


 


9.           INTEREST


 


9.1         Calculation
of interest


 


The rate of
interest on each Loan for each Interest Period is the percentage rate per annum
which is the aggregate of the applicable:


 


(a)           Margin;


 


(b)           LIBOR or, in relation to any Loan in Euro, EURIBOR; and


 


(c)           Mandatory Cost, if any.


 


9.2         Payment
of interest


 


The Borrower
to which a Loan has been made shall pay accrued interest on that Loan on the
last day of each Interest Period (and, if the Interest Period is longer than
six Months, on the dates falling at six Monthly intervals after the first day
of the Interest Period).


 


9.3         Default
interest


 


(a)           If an Obligor fails to pay any amount payable by it under a
Finance Document on its due date, interest shall accrue on the overdue amount
from the due date up to the date of actual payment (both before and after
judgment) at a rate 1.00 per cent. higher than the rate which would have been
payable if the overdue amount had, during the period of non-payment,
constituted a Loan in the currency of the overdue amount for successive
Interest Periods, each of a duration selected by the Agent (acting
reasonably).  Any interest accruing under
this Clause 9.3 shall be immediately payable by the Obligor on demand by the
Agent.


 


(b)           Default interest (if unpaid) arising on an overdue amount
will be compounded with the overdue amount at the end of each Interest Period
applicable to that overdue amount but will remain immediately due and payable.


 


9.4         Notification
of rates of interest


 


The Agent
shall promptly notify the Lenders and the relevant Borrower of the
determination of a rate of interest under this Agreement.


 


10.         INTEREST PERIODS


 


10.1      Selection
of Interest Periods


 


(a)           A Borrower (or the Company on behalf of a Borrower) may
select an Interest Period for a Loan in the Utilisation Request for that Loan.


 


(b)           Subject to this Clause 10, a Borrower (or the Company) may
select an Interest Period of one, two, three or six Months or any other period
agreed between the Company and the Agent (acting on the instructions of the
Majority Lenders).


 


(c)           An Interest Period for a Loan shall not extend beyond the
Termination Date.


 


(d)           Each Interest Period for a Loan shall start on the
Utilisation Date.


 


38

















 


(e)           A Loan has one Interest Period only.


 


10.2      Non-Business
Days


 


If an Interest
Period would otherwise end on a day which is not a Business Day, that Interest
Period will instead end on the next Business Day in that calendar month (if
there is one) or the preceding Business Day (if there is not).


 


11.         CHANGES TO THE CALCULATION OF INTEREST


 


11.1      Absence
of quotations


 


Subject to
Clause 11.2 (Market disruption),
if LIBOR or, if applicable, EURIBOR is to be determined by reference to the
Reference Banks but a Reference Bank does not supply a quotation by the
Specified Time on the Quotation Day, the applicable LIBOR or EURIBOR shall be
determined on the basis of the quotations of the remaining Reference Banks.


 


11.2      Market
disruption


 


(a)           If a Market Disruption Event occurs in relation to a Loan for
any Interest Period, then the rate of interest on each Lender’s share of that
Loan for the Interest Period shall be the rate per annum which is the sum of:


 


(i)            the
Margin;


 


(ii)           subject
to Clause 11.3 (Alternative basis of
interest or funding), the rate notified to the Agent by that Lender
as soon as practicable and in any event before interest is due to be paid in
respect of that Interest Period, to be that which expresses as a percentage
rate per annum the cost to that Lender as certified by it with a copy to the
Agent and the Company of funding its participation in that Loan from whatever
source it may reasonably select; and


 


(iii)          the Mandatory Cost, if any, applicable to that Lender’s
participation in the Loan.


 


(b)           In this Agreement, “Market
Disruption Event” means:


 


(i)            at
or about noon on the Quotation Day for the relevant Interest Period the Screen
Rate is not available and none or only one of the Reference Banks supplies a
rate to the Agent to determine LIBOR or, if applicable, EURIBOR for the relevant
currency and Interest Period; or


 


(ii)           before
close of business in London on the Quotation Day for the relevant Interest
Period, the Agent receives notifications from a Lender or Lenders (whose
participations in a Loan exceed 35 per cent. of that Loan) that the cost to it
of obtaining matching deposits in the Relevant Interbank Market would be in
excess of LIBOR or, if applicable, EURIBOR.


 


11.3      Alternative
basis of interest or funding


 


(a)           If a Market Disruption Event occurs and the Agent or the Company
so requires, the Agent and the Company shall enter into negotiations (for a
period of not more than 30 days) with a view to agreeing a substitute basis for
determining the rate of interest.


 


(b)           Any alternative basis agreed pursuant to paragraph (a) above
shall, with the prior consent of all the Lenders and the Company, be binding on
all Parties.


 


39

















 


11.4      Break
Costs


 


(a)           Each Borrower shall, within three Business Days of demand by
a Finance Party, pay to that Finance Party its Break Costs attributable to all
or any part of a Loan or Unpaid Sum being paid by that Borrower on a day other
than the last day of an Interest Period for that Loan or Unpaid Sum.


 


(b)           Each Lender shall, as soon as reasonably practicable after a
demand by the Agent, provide a certificate confirming the amount of its Break
Costs for any Interest Period in which they accrue.


 


12.         FEES


 


12.1      Commitment
fee


 


(a)           Subject to this Clause 12.1, Sappi Papier Holding GmbH shall
pay to the Agent (for the account of each Lender) a fee in the Base Currency
computed at a percentage rate per annum on a day to day basis on that Lender’s
Available Commitment for the Availability Period equal to 45 per cent. of the
applicable Margin (determined in accordance with paragraph (b) below),
which would apply to a Loan drawn on that day.


 


(b)           The accrued commitment fee is payable in arrears from the
Signing Date and on the last day of each successive period of three Months
which ends during the Availability Period, on the last day of the Availability
Period and on the cancelled amount of the relevant Lender’s Commitment at the
time the cancellation is effective for the period up to the date of
cancellation.


 


(c)           No commitment fee is payable to the Agent (for the
account of a Lender) on any Available Commitment of that Lender for any day on
which that Lender is a Defaulting Lender.


 


12.2      Utilisation
fee


 


(a)           Sappi Papier Holding GmbH shall pay to the Agent (for the
account of each Lender) an utilisation fee in the Base Currency in respect of
such Lender’s participation in the Outstandings computed at the rate of:


 


(i)            if
the Outstandings are in an amount greater than 25 per cent. but less than or
equal to 50 per cent. of the maximum amount of the Facility as at the date of
this Agreement, 0.5 per cent. per annum of such Lender’s participation in such
Outstandings; and


 


(ii)           if
the Outstandings are greater than 50 per cent. of the maximum amount of the
Facility as at the date of this Agreement, 1.00 per cent. per annum of such
Lender’s participation in such Outstandings.


 


(b)           This fee is payable on the last day of each successive period
of three Months which ends during the Availability Period and on the
Termination Date.


 


12.3      Arrangement
and Upfront fee


 


Sappi Papier
Holding GmbH shall pay to the Mandated Lead Arrangers the arrangement and
upfront fee in the amount and at the time agreed in the Fee Letters.


 


40

















 


12.4      Agency
fee


 


Sappi Papier
Holding GmbH shall pay to the Agent (for its own account) an agency fee in the
amount and at the times agreed in a Fee Letter.


 


41














 


SECTION 6


 


ADDITIONAL PAYMENT
OBLIGATIONS


 


13.                               TAX GROSS UP AND INDEMNITIES


 


13.1                        Definitions


 


(a)                                 In this Agreement:


 


“Finance Company” means a finance company within the meaning
of article 105 1° c) of the Belgian Royal Decree implementing the Belgian Income
Tax Code, as amended from time to time.


 


“New
Qualifying Lender” means a Lender who becomes a Qualifying Lender
after Sappi International SA loses the tax status of a Finance Company.


 


“Non-Treaty
Protected Party” means a Protected Party that was a Treaty Lender on
the date that it became a Party to this Agreement but which has ceased to be a
Treaty Lender as a result of any change after that date in (or in the
interpretation, administration, or application of) any law or double taxation
agreement or any published practice or published concession of any relevant tax
authority.


 


“Original
Qualifying Lender” means a Lender who is a Qualifying Lender prior
to Sappi International SA losing the tax status of a Finance Company.


 


“Protected Party” means a Finance Party
which is or will be subject to any liability or required to make any payment
for or on account of Tax in relation to a sum received or receivable (or any
sum deemed for the purposes of Tax to be received or receivable) under a
Finance Document.


 


“Qualifying Lender” means a Lender which is
(on the date a payment falls due) beneficially entitled to that payment without
a Tax Deduction (subject to the completion of any necessary procedural
formalities).


 


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


 


“Tax Deduction” means a deduction or
withholding for or on account of Tax from a payment under a Finance Document.


 


“Tax Payment” means either the increase in a
payment made by an Obligor to a Finance Party under Clause 13.2 (Tax gross-up) or a payment under Clause
13.3 (Tax indemnity).


 


“Treaty Lender” means a Finance Party which is treated as a
resident of a Treaty State for the purposes of an applicable Treaty.


 


“Treaty State” means a jurisdiction having a double taxation
agreement with the Republic of Austria which provides for full exemption from
tax on interest (as defined in that double taxation agreement) in the Republic
of Austria irrespective of whether the receivable on which such interest is
paid is directly or indirectly secured by real estate or other assets
qualifying as immovable held by the relevant Obligor (such double taxation
agreement being an applicable “Treaty”).


 


42

















 


(b)                                 In this Clause 13 a reference to “determines” or “determined”
means a determination made in the absolute discretion of the person making the
determination.


 


13.2                        Tax gross-up


 


(a)                                 Each Obligor shall make all payments to be made by it without
any Tax Deduction, unless a Tax Deduction is required by law.


 


(b)                                 An Obligor or a Lender shall promptly upon becoming aware
that an Obligor must make a Tax Deduction (or that there is any change in the
rate or the basis of a Tax Deduction) notify the Agent accordingly. If the
Agent receives such notification from a Lender it shall notify the relevant
Obligor.


 


(c)                                  Subject to Clause 13.8 (Exemptions from gross up),
if a Tax Deduction is required by law to be made by an Obligor in one of the
circumstances set out in paragraph (d) below, the amount of the payment
due from that Obligor shall be increased to an amount which (after making any
Tax Deduction) leaves an amount equal to the payment which would have been due
if no Tax Deduction had been required.


 


(d)                                 The circumstances referred to in paragraph (c) above
are:


 


(i)                                     where a person entitled to receive the payment is the Agent,
the Security Agent, or the Mandated Lead Arrangers (on their own behalf); or


 


(ii)                                  where a person entitled to receive the payment is a Lender
which is a Qualifying Lender in respect of which the completion of procedural
formalities is required before the relevant Obligor can make payments thereto
without a Tax Deduction but such procedural formalities have not been completed
other than as a result of the failure of the Lender to comply with its
obligations under paragraph (g) below (unless such failure results from a
failure by any Obligor to comply with any of its obligations under paragraph (g) below
or Clause 13.7 (Filings)); or


 


(iii)                               where a person entitled to receive the payment is a Lender
which would have been a Qualifying Lender but for any change after the date of
this Agreement in (or in the interpretation, administration, or application of)
any law or double taxation agreement or any published practice or published
concession of any relevant tax authority; or


 


(iv)                                where a person entitled to receive the payment is a Lender which would have been a Qualifying Lender
but for any change after the date of this Agreement in the position, status or
circumstances of any Obligor (including, without limitation, a change in the
place or places in which an Obligor is treated as resident for Tax purposes);
or


 


(v)                                   where (a) Sappi International SA for any reason loses
the tax status of a Finance Company, including where the status for Finance
Companies or the exemption from the requirement to make a Tax Deduction on
interest payments made by Finance Companies is abolished and (b) in each
case, where no replacement giving equivalent tax status (including exemption
from the requirement to make a Tax Deduction) (an “Equivalent
Tax Status”) exists and is applied and continues to be applied to
Sappi International SA or no other exemption from the requirement to make a Tax
Deduction (a “Tax Exemption”) may be applied and
continues to be applied to Sappi International SA, and, as a result of such
circumstances, a Lender has ceased 


 


43

















 


to be a Qualifying
Lender to the extent that this altered status results from such
circumstances.  For the avoidance of
doubt, this paragraph (d)(v) of Clause 13.2 applies in each of the
following circumstances:


 


(A)                                 with respect to an Original Qualifying Lender, where Sappi
International SA for any reason loses (1) the tax status of a Finance
Company and/or (2) its Equivalent Tax Status or Tax Exemption, and, in
each case, there is no subsequent Equivalent Tax Status or Tax Exemption that
may be applied and continues to be applied to Sappi International SA, and as a
result of such circumstances, that Lender has ceased to be a Qualifying Lender;
and


 


(B)                                with respect to a New Qualifying Lender, where Sappi
International SA for any reason loses its Equivalent Tax Status or Tax
Exemption, and there is no subsequent Equivalent Tax Status or Tax Exemption
that may be applied and continues to be applied to Sappi International SA, and
as a result of such circumstances, that Lender has ceased to be a Qualifying
Lender.


 


(e)                                 If an Obligor is required to make a Tax Deduction, that
Obligor shall make that Tax Deduction and any payment required in connection
with that Tax Deduction within the time allowed and in the minimum amount
required by law.


 


(f)                                     Within 30 days of making either a Tax Deduction or any
payment required in connection with that Tax Deduction, the Obligor making that
Tax Deduction shall deliver to the Agent for the Finance Party entitled to the
payment in respect of which the Tax Deduction is required evidence reasonably
satisfactory to that Finance Party that the Tax Deduction has been made or (as
applicable) any appropriate payment paid to the relevant tax authority.


 


(g)                                 A Qualifying Lender and each Obligor which makes a payment to
which that Qualifying Lender is entitled shall co-operate in completing any
procedural formalities necessary for that Obligor to obtain authorisation to
make that payment without a Tax Deduction.


 


13.3                        Tax indemnity


 


(a)                                 Subject to Clause 13.5 (Stamp
Taxes), each Obligor shall (within five Business Days of demand by
the Agent) pay to a Protected Party an amount equal to the loss, liability or
cost which that Protected Party determines will be or has been (directly or
indirectly) suffered for or on account of Tax (other than Tax assessed on it
under § 98 para 1 no 5 lit b of the Austrian Income Tax Act (österreichisches Einkommensteuergesetz)) by that Protected
Party in respect of a Finance Document.


 


(b)                                 Subject to Clause 13.5 (Stamp Taxes), each
Obligor shall (within five Business Days of demand by the Agent) pay to a
Non-Treaty Protected Party an amount equal to the loss, liability or cost which
that Non-Treaty Protected Party determines will be or has been (directly or
indirectly) suffered by it for, on account of or in relation to, Tax assessed
on it under § 98 para 1 no 5 lit b of the Austrian Income Tax Act (österreichisches Einkommensteuergesetz),
and shall also pay to that Non-Treaty Protected Party such additional amount as
that Non-Treaty Protected Party determines will leave it (after full payment
under this paragraph (b)) in the same 


 


44

















 


after-Tax position as it would have
been had no such loss, liability or cost been suffered.


 


(c)                                  Paragraphs (a) and (b) above shall not apply:


 


(i)                                     with respect to any Tax assessed on a Finance Party:


 


(A)                                 under the law of the jurisdiction in which that Finance Party
is incorporated or, if different, the jurisdiction (or jurisdictions) in which
that Finance Party is treated as resident for tax purposes; or


 


(B)                                under the law of the jurisdiction in which that Finance Party’s
Facility Office is located in respect of amounts received or receivable in that
jurisdiction,


 


if that Tax is
imposed on or calculated by reference to the net income received or receivable
(but not any sum deemed to be received or receivable) by that Finance Party; or


 


(ii)                                  to the extent a loss, liability or cost:


 


(A)                                 is compensated for by an increased payment under Clause 13.2
(Tax gross-up); or


 


(B)                                would have been compensated for by an increased payment under
Clause 13.2 (Tax gross-up) but was not so
compensated solely because none of the circumstances in paragraph (d) of
Clause 13.2 (Tax gross-up) existed or applied
or because Clause 13.8 (Exemptions from gross up)
applied.


 


(d)                                 A Protected Party making, or intending to make, a claim
pursuant to paragraph (a) or (b) above shall promptly notify the
Agent of the event which will give, or has given, rise to the claim, following
which the Agent shall notify the Company.


 


(e)                                 A Protected Party shall, on receiving a payment from an
Obligor under this Clause 13.3, notify the Agent.


 


13.4                        Tax Credit


 


If an Obligor makes a
Tax Payment and the relevant Finance Party determines that:


 


(a)                                 a Tax Credit is attributable to that Tax Payment; and


 


(b)                                 that Finance Party has obtained, utilised and retained that
Tax Credit,


 


the Finance Party
shall pay an amount to the Obligor which that Finance Party determines will
leave it (after that payment) in the same after-Tax position as it would have
been in had the Tax Payment not been required to be made by the Obligor.


 


13.5                        Stamp Taxes


 


(a)                                 Sappi Papier Holding GmbH shall pay and, within five Business
Days of demand, indemnify each Finance Party against any cost, loss or
liability that that Finance Party incurs in relation to all stamp duty,
registration and other similar Taxes payable in respect of any Finance
Document, Existing Finance Document or other document 


 


45

















 


which relates to any
Finance Document, Existing Finance Document or any transaction contemplated by,
or referenced in, any Finance Document or Existing Finance Document, provided,
however, that Sappi Papier Holding GmbH shall not be so liable to pay and
indemnify a Finance Party in respect of any cost, loss or liability that a
Finance Party so incurs in relation to the Finance Documents to the extent that
such cost, loss or liability results from that Finance Party’s grossly
negligent (grob fahrlässig) or wilful (vorsätzlich) breach of its obligations under paragraph (b) below
and,
provided further that with respect to any Existing Finance Document
or any other document which relates to any Existing Finance Document, Sappi
Papier Holding GmbH shall indemnify each Finance Party against any cost,
loss or liability incurred in relation to Austrian stamp duty only. 
A Finance Party which is a party to an Existing Finance Document may only claim
under this paragraph (a) with respect to any Austrian stamp duty payable
by it in respect of that Existing Finance Document or any other document which
relates to that Existing Finance Document to the extent that such Existing
Finance Document or other document makes no provision for the
indemnification of that Finance Party in respect of such amounts.


 


(b)                                 No Party shall bring or send to, or otherwise produce in,
Austria a Stamp Duty Sensitive Document or communicate in writing other than in
compliance with the Stamp Duty Guidelines, in each case other than in the event
that:


 


(i)                                     it does not cause a liability of a Party to pay stamp duty or
other Tax in Austria;


 


(ii)                                  a Party wishes to enforce any of its rights under or in
connection with a Finance Document in Austria and is only able to do so
(including, without limitation, by reason of any objection or defence raised by
an Obligor in any form of proceedings in Austria) by bringing or sending to, or
otherwise producing in, Austria a Stamp Duty Sensitive Document and it would
not be sufficient for that Party to bring or send to, or otherwise produce in,
Austria a document that is not a Stamp Duty Sensitive Document for the purposes
of such enforcement; in furtherance of the foregoing, no Party shall (1) object
to the introduction into evidence of an uncertified copy of any Stamp Duty
Sensitive Document or raise a defence to any action or to the exercise of any
remedy on the basis of an original or certified copy of any Stamp Duty
Sensitive Document not having been introduced into evidence, unless such
uncertified copy actually introduced into evidence does not accurately reflect
the content of the original document and (2) if such Party is a party to
the proceedings before an Austrian court or authority, contest the authenticity
(Echtheit) of an uncertified copy
of any such Stamp Duty Sensitive Document, unless such uncertified copy
actually introduced into evidence does not accurately reflect the content of
the original document; or


 


(iii)                               a Party is required by law, governmental body, court,
authority or agency pursuant to any legal requirement (whether for the purposes
of initiating, prosecuting, enforcing or executing any claim or remedy or
enforcing any judgment or otherwise) to bring or send a Stamp Duty Sensitive
Document into, or otherwise produce a Stamp Duty Sensitive Document in,
Austria.


 


13.6                        Value added tax


 


(a)                                 All consideration payable under a Finance Document by an
Obligor to a Finance Party shall be deemed to be exclusive of any VAT.  If VAT is or becomes chargeable on any supply
made by any Finance Party to an Obligor under a Finance Document, that Obligor
shall pay to the Finance Party (in addition to and at the same time as 


 


46

















 


paying the
consideration for such supply) an amount equal to the amount of such VAT (and
such Finance Party shall promptly provide an appropriate VAT invoice to that
Obligor).


 


(b)                                 If VAT is or becomes chargeable on any supply made by a
Finance Party (the “Supplier”) to
any other Finance Party (the “Recipient”)
under a Finance Document, and any Party other than the Recipient (the “Subject Party”) is required by the terms of any Finance
Document to pay an amount equal to the consideration for such supply to the
Supplier (rather than being required to reimburse the Recipient in respect of
that consideration), such Party shall also pay to the Supplier (in addition to
and at the same time as paying such amount) an amount equal to the amount of
such VAT. The Recipient will promptly pay to the Subject Party an amount equal
to any credit or repayment obtained by the Recipient from the relevant tax
authority which the Recipient reasonably determines is in respect of such VAT.


 


(c)                                  Where a Finance Document requires an Obligor to reimburse or
indemnify a Finance Party for any costs or expenses, that Obligor shall also at
the same time reimburse or indemnify (as the case may be) that Finance Party
for and against all VAT incurred by that Finance Party in respect of the costs
or expenses save to the extent that such Finance Party reasonably determines
that it is entitled to repayment or credit in respect of the VAT from the
relevant tax authority.


 


(d)                                 Any reference in this Clause 13.6 to any Party shall, at any
time when such Party is treated as a member of a group for VAT purposes,
include (where appropriate and unless the context otherwise requires) a
reference to the representative member (the term “representative member” to
have the same meaning as in the Value Added Tax Act 1994) or the equivalent in
any relevant jurisdiction outside the UK, of such group at such time.


 


13.7                        Filings


 


In circumstances
where an Obligor is required (or would in the absence of any such filing be
required) to make a Tax Deduction, such Obligor and each relevant Finance Party
shall make reasonable endeavours following a reasonable request by the relevant
Obligor or Finance Party to file such forms and documents as the appropriate
tax authority may reasonably require in order to enable such Obligor to make
relevant payments under the Finance Documents without having to make such Tax
Deduction.


 


13.8                        Exemptions from gross up


 


Notwithstanding
anything contained in this Clause 13 (Tax
gross up and indemnities), no additional amount will be payable to a
Lender under Clause 13.2 (Tax gross-up)
to the extent that such additional amount would not be payable if that Lender
had complied with its obligations under Clause 13.7 (Filings) unless such failure to comply resulted from a
failure by any Obligor to comply with any of its obligations under paragraph (g) of
Clause 13.2 (Tax gross up) or Clause 13.7 (Filings).


 


14.                               INCREASED COSTS


 


14.1                        Increased Costs


 


(a)                                 Subject to Clause 14.3 (Exceptions),
Sappi Papier Holding GmbH shall, within three Business Days of a demand by the
Agent, pay for the account of a Finance Party the amount of any Increased Costs
incurred by that Finance Party or any of its Affiliates as a result of (i) the
introduction of or any change in (or in the interpretation, administration or
application of) any law or regulation occurring after the date of this 


 


47

















 


Agreement or (ii) compliance
with any law or regulation made after the date of this Agreement.


 


(b)                                 In this Agreement, “Increased
Costs” means:


 


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


 


(ii)                                  an additional or increased cost; or


 


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


 


which is incurred or
suffered by a Finance Party or any of its Affiliates to the extent that it is
attributable to that Finance Party having entered into its Commitment or
funding or performing its obligations under any Finance Document.


 


14.2                        Increased cost claims


 


(a)                                 A Finance Party intending to make a claim pursuant to Clause
14 (Increased Costs) shall notify
the Agent of the event giving rise to the claim, following which the Agent
shall promptly notify the Company.


 


(b)                                 Each Finance Party shall, as soon as practicable after a
demand by the Agent, provide a certificate confirming the amount of its
Increased Costs.


 


14.3                        Exceptions


 


Clause 14 (Increased
Costs) does not apply to the extent any Increased Cost is:


 


(a)                                 attributable to a Tax Deduction required by law to be made by
an Obligor;


 


(b)                                 compensated for by Clause 13.3 (Tax indemnity) (or would have been compensated for under
Clause 13.3 (Tax indemnity) but
was not so compensated solely because one of the exclusions in paragraph (c) of
Clause 13.3 (Tax indemnity)
applied);


 


(c)                                  compensated for by the payment of the Mandatory Cost; or


 


(d)                                 attributable to the wilful breach by the relevant Finance
Party or its Affiliates of any law or regulation or failure to comply with any
request from or requirement of any central bank or other fiscal, monetary or
other authority (whether or not having the force of law).


 


15.                               OTHER INDEMNITIES


 


15.1                        Currency indemnity


 


(a)                                 If any sum due from an Obligor under the Finance Documents (a
“Sum”), or any order, judgment or
award given or made in relation to a Sum, has to be converted from the currency
(the “First Currency”) in which
that Sum is payable into another currency (the “Second Currency”) for the purpose of:


 


(i)                                     making or filing a claim or proof against that Obligor; or


 


(ii)                                  obtaining or enforcing an order, judgment or award in
relation to any litigation or arbitration proceedings,


 


48

















 


that Obligor shall as
an independent obligation, within five Business Days of demand, indemnify each
Secured Party to whom that Sum is due against any cost, loss or liability
arising out of or as a result of the conversion including any discrepancy
between (A) the rate of exchange used to convert that Sum from the First
Currency into the Second Currency and (B) the rate or rates of exchange
available to that person at the time of its receipt of that Sum.


 


(b)                                 Each Obligor waives any right it may have in any jurisdiction
to pay any amount under the Finance Documents in a currency or currency unit
other than that in which it is expressed to be payable.


 


15.2                        Other indemnities


 


Each Obligor will
within five Business Days of demand, indemnify each Secured Party against any
cost, loss or liability incurred by that Secured Party as a result of:


 


(a)                                 the occurrence of any Event of Default;


 


(b)                                 a failure by an Obligor to pay any amount due under a Finance
Document on its due date, including without limitation, any cost, loss or
liability arising as a result of Clause 28 (Sharing
among the Lenders);


 


(c)                                  funding, or making arrangements to fund, its participation in
a Loan requested by a Borrower in an Utilisation Request but not made by reason
of the operation of any one or more of the provisions of this Agreement (other
than by reason of default or negligence by that Lender alone); or


 


(d)                                 a Loan (or part of a Loan) not being prepaid in accordance
with a notice of prepayment given by a Borrower or the Company.


 


15.3                        Indemnity to the Agent


 


Sappi Papier Holding
GmbH shall promptly indemnify the Agent against any cost, loss or liability
incurred by the Agent (acting reasonably) as a result of:


 


(a)                                 investigating any event which it reasonably believes is a
Default; or


 


(b)                                 entering into or performing any foreign exchange contract for
the purposes of Clause 6 (Optional
Currencies); or


 


(c)                                  acting or relying on any notice, request or instruction which
it reasonably believes to be genuine, correct and appropriately authorised.


 


16.                               MITIGATION BY THE LENDERS


 


16.1                        Mitigation


 


(a)                                 Each Finance Party shall, in consultation with the Company,
take all reasonable steps to mitigate any circumstances which arise and which
would result in any amount becoming payable under or pursuant to, or cancelled
pursuant to, any of Clause 8.1 (Illegality),
Clause 13 (Tax gross up and indemnities),
or Clause 14 (Increased Costs) or
paragraph 3 of Schedule 4 (Mandatory Cost Formulae)
including (but not limited to) transferring its rights and obligations under
the Finance Documents to another Affiliate or Facility Office.


 


49

















 


(b)                                 Paragraph (a) above does not in any way limit the
obligations of any Obligor under the Finance Documents.


 


16.2                        Limitation of liability


 


(a)                                 Sappi Papier Holding GmbH shall promptly indemnify each
Finance Party, upon presentation of duly documented evidence thereof, for all
costs and expenses reasonably incurred by that Finance Party as a result of
steps taken by it under Clause 16.1 (Mitigation).


 


(b)                                 A Finance Party is not obliged to take any steps under Clause
16.1 (Mitigation) if, in the
opinion of that Finance Party (acting reasonably), to do so might have an
adverse effect on its business, operations or financial condition.


 


17.                               COSTS AND EXPENSES


 


17.1                        Transaction expenses


 


Sappi Papier Holding
GmbH shall promptly on demand pay the Agent, the Mandated Lead Arrangers and
the Security Agent, the amount of all reasonable costs and expenses including
legal fees incurred by any of them in connection with the negotiation,
preparation, printing, execution, syndication and perfection of:


 


(a)                                 this Agreement and any other documents referred to in this
Agreement and the Transaction Security; and


 


(b)                                 any other Finance Documents executed after the date of this
Agreement,


 


notwithstanding if no
Utilisation is made under this Agreement.


 


17.2                        Amendment costs


 


If (a) an
Obligor requests an amendment, waiver or consent or (b) an amendment is
required pursuant to Clause 29.10 (Change of
currency), Sappi Papier Holding GmbH shall, within three Business
Days of demand, reimburse each of the Agent and the Security Agent for the
amount of all reasonable costs and expenses (including legal fees) incurred by
the Agent and the Security Agent (and the in the case of the Security Agent, by
any Receiver or Delegate) in responding to, evaluating, negotiating or
complying with that request or requirement.


 


17.3                        Enforcement costs


 


Sappi Papier Holding
GmbH shall, within three Business Days of demand, pay to each Secured Party the
amount of all costs and expenses (including legal and court fees) incurred by
that Secured Party in connection with the enforcement of, or the preservation
of any rights under, any Finance Document and the Transaction Security.


 


50














 


SECTION 7



GUARANTEE


 


18.                               GUARANTEE AND INDEMNITY


 


18.1                        Guarantee and indemnity


 


Each Guarantor
irrevocably and unconditionally jointly and severally:


 


(a)                                 guarantees to each Finance Party punctual performance by each
Borrower of all that Borrower’s obligations under the Finance Documents;


 


(b)                                 undertakes with each Finance Party that whenever a Borrower
does not pay any amount when due under or in connection with any Finance
Document, that Guarantor shall immediately on demand pay the amount so demanded
as if it was the principal obligor; and


 


(c)                                  as an independent and primary obligation, indemnifies each
Finance Party immediately on demand against any cost, loss or liability
suffered by that Finance Party (i) if any obligation guaranteed by it is
or becomes unenforceable, invalid or illegal or (ii) by operation of
law.  The amount of the cost, loss or
liability shall be equal to the amount which that Finance Party would otherwise
have been entitled to recover.


 


18.2                        Continuing guarantee: nature of guarantee


 


(a)                                 This guarantee is a continuing guarantee and will extend to
the ultimate balance of sums payable by any Obligor under the Finance
Documents, regardless of any intermediate payment or discharge in whole or in
part.


 


(b)                                 Notwithstanding anything to the contrary herein or in any
other of the Finance Documents, this guarantee is meant to be and shall be
interpreted as “abstract guarantee” (abstrakter
Garantievertrag) and the obligations of the Guarantors hereunder
shall be obligations of the Guarantors as principal debtors and not as sureties
(Buergschaft) and not as a joint
obligation as a borrower (Mitschuldner)
and the Guarantors undertake to pay the amounts so demanded under or pursuant
to this guarantee unconditionally, irrevocably, upon first demand and without
raising any defences or objections, set-off or counterclaim and without
verification of the legal ground (unbedingt,
unwiderruflich, auf erste Aufforderung und unter Verzicht auf alle Einwendungen
oder Einreden, ohne Aufrechnung oder die Geltendmachung von Gegenforderungen
und ohne Prüfung des Rechtsgrunds).


 


18.3                        Reinstatement


 


If any payment by an
Obligor or any discharge given by a Finance Party (whether in respect of the
obligations of any Obligor or any security for those obligations or otherwise)
is avoided or reduced as a result of insolvency or any similar event:


 


(a)                                 the liability of each Obligor shall continue as if the
payment, discharge, avoidance or reduction had not occurred; and


 


(b)                                 each Finance Party shall be entitled to recover the value or
amount of that security or payment from each Obligor, as if the payment,
discharge, avoidance or reduction had not occurred.


 


51

















 


18.4                        Waiver of defences


 


The obligations of
each Guarantor under this Clause 18 (Guarantee and indemnity)
will not be affected by an act, omission, matter or thing which, but for this
Clause, would reduce, release or prejudice any of its obligations under this
Clause 18 (Guarantee and indemnity) (without
limitation and whether or not known to it or any Finance Party) including:


 


(a)                                 any time, waiver or consent granted to, or composition with,
any Obligor or other person;


 


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


 


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


 


(d)                                 any incapacity or lack of power, authority or legal
personality of or dissolution or change in the members or status of an Obligor
or any other person;


 


(e)                                 any amendment, novation, supplement, extension (whether of
maturity or otherwise) or restatement (in each case however fundamental and of
whatsoever nature) or replacement of a Finance Document or any other document
or security;


 


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


 


(g)                                 any insolvency or similar proceedings.


 


18.5                        Guarantor Intent


 


Without prejudice to
the generality of Clause 18.4 (Waiver of defences),
each Guarantor expressly confirms that subject to the limitations contained in
this Clause 18 (Guarantee and indemnity), it
intends that this guarantee shall extend from time to time to any (however
fundamental) variation, increase, extension or addition of or to any of the
Finance Documents and/or any facility or amount made available under any of the
Finance Documents for the purposes of or in connection with any of the following:
business acquisitions of any nature; increasing working capital; enabling
investor distributions to be made; carrying out restructurings; refinancing
existing facilities; refinancing any other indebtedness; making facilities
available to new borrowers; any other variation or extension of the purposes
for which any such facility or amount might be made available from time to
time; and any fees, costs and/or expenses associated with any of the foregoing.


 


18.6                        Immediate recourse


 


Each Guarantor waives
any right it may have of first requiring any Finance Party (or any trustee or
agent on its behalf) to proceed against or enforce any other rights or security
or claim payment from any person before claiming from that Guarantor under this
Clause 18.  This waiver applies
irrespective of any law or any provision of a Finance Document to the contrary.


 


52

















 


18.7                        Appropriations


 


Until all amounts
which may be or become payable by the Obligors under or in connection with the
Finance Documents have been irrevocably paid in full, each Finance Party (or
any trustee or agent on its behalf) may:


 


(a)                                 refrain from applying or enforcing any other moneys, security
or rights held or received by that Finance Party (or any trustee or agent on
its behalf) in respect of those amounts, or apply and enforce the same in such
manner and order as it sees fit (whether against those amounts or otherwise)
and no Guarantor shall be entitled to the benefit of the same; and


 


(b)                                 hold in an interest-bearing suspense account any moneys
received from any Guarantor or on account of any Guarantor’s liability under
this Clause 18 (Guarantee
and indemnity).


 


18.8                        Deferral of Guarantors’ rights


 


Until all amounts
which may be or become payable by the Obligors under or in connection with the
Finance Documents have been irrevocably paid in full and unless the Agent
otherwise directs, no Guarantor will exercise any rights which it may have by
reason of performance by it of its obligations under the Finance Documents or
by reason of any amount being payable, or arising, under this Clause 18 (Guarantee and indemnity):


 


(a)                                 to be indemnified by an Obligor;


 


(b)                                 to claim any contribution from any other guarantor of any
Obligor’s obligations under the Finance Documents;


 


(c)                                  to take the benefit (in whole or in part and whether by way
of subrogation or otherwise) of any rights of the Finance Parties under the
Finance Documents or of any other guarantee or security taken pursuant to, or
in connection with, the Finance Documents by any Finance Party;


 


(d)                                 to bring legal or other proceedings for an order requiring
any Obligor to make any payment, or perform any obligation, in respect of which
any Guarantor has given a guarantee, undertaking or indemnity under Clause 18.1
(Guarantee and indemnity);


 


(e)                                 to exercise any right of set-off against any Obligor; and/or


 


(f)                                     to claim or prove as a creditor of any Obligor in competition
with any Finance Party.


 


If a Guarantor
receives any benefit, payment or distribution in relation to such rights it
shall hold that benefit, payment or distribution to the extent necessary to
enable all amounts which may be or become payable to the Finance Parties by the
Obligors under or in connection with the Finance Documents to be repaid in full
on trust for the Finance Parties and shall promptly pay or transfer the same to
the Agent or as the Agent may direct for application in accordance with Clause
29 (Payment Mechanics).


 


18.9                        Release of Guarantors’ right of contribution


 


If any Guarantor (a “Retiring Guarantor”) ceases to be a Guarantor in accordance
with the terms of the Finance Documents for the purpose of any sale or other
Disposal of that Retiring Guarantor (or for any other reason) then on the date
such Retiring Guarantor ceases to be a Guarantor:


 


53

















 


(a)                                 that Retiring Guarantor is released by each other Guarantor
from any liability (whether past, present or future and whether actual or
contingent) to make a contribution to any other Guarantor arising by reason of
the performance by any other Guarantor of its obligations under the Finance
Documents; and


 


(b)                                 each other Guarantor waives any rights it may have by reason
of the performance of its obligations under the Finance Documents to take the
benefit (in whole or in part and whether by way of subrogation or otherwise) of
any rights of the Finance Parties under any Finance Document or of any other
security taken pursuant to, or in connection with, any Finance Document where
such rights or security are granted by or in relation to the assets of the
Retiring Guarantor.


 


18.10                 Additional security


 


This guarantee is in
addition to and is not in any way prejudiced by any other guarantee or security
now or subsequently held by any Finance Party.


 


18.11                 Belgian Guarantee Limitation


 


In the case of a
Belgian Guarantor, with respect to the obligations of any Obligor which is not
a Subsidiary of such Belgian Guarantor, its liability under this Clause 18 (Guarantee and indemnity) shall be limited, at any time, to a
maximum aggregate amount equal to the greater of:


 


(a)                                 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


 


(b)                                 the aggregate amount outstanding on the date on which the
relevant demand is made of (a) the principal amount borrowed by the
Belgian Guarantor pursuant to this Agreement and (b) the aggregate amount
of any intra-group loans or facilities made to it by any Group Company directly
and/or indirectly using all or part of the proceeds of the Facility (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 Group
Company).


 


18.12                 Austrian Guarantee Limitation


 


(a)                                 Nothing in this Agreement 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) and § 52 et seq. of
the Austrian Act on Joint Stock Companies (Aktiengesetz-AktG)
(the “Austrian Capital Maintenance Rules”),
and all obligations of an Austrian Guarantor under this Agreement shall be
limited in accordance with Austrian Capital Maintenance Rules.


 


(b)                                 If and to the extent the payment obligations of an Austrian
Guarantor under this Agreement would not be permitted under Austrian Capital
Maintenance Rules or would render the directors of an Austrian Guarantor
or of the general partner of an Austrian Guarantor (as applicable) personally
liable pursuant to Austrian law to any of the creditors of that Austrian
Guarantor or of the general partner (as applicable) as a consequence of paying
such amount, then such payment obligations shall be limited 


 


54

















 


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) or partner(s) (as applicable) of that Austrian
Guarantor and to the shareholders of that Austrian Guarantor’s partners under
the GmbHG or AktG (as the case may be) and the UGB at the time or times payment
under or pursuant to this Agreement is requested from an Austrian Guarantor, plus,
(iii) to the extent applicable, the equivalent in the Base Currency of the
aggregate Utilisations (plus any accrued interest, commission and fee thereon)
borrowed by that Austrian Guarantor and/or its partners in its capacity as
Borrower, plus (iv) to the extent applicable, the equivalent in the
Base Currency of the aggregate Utilisations (plus any accrued interest,
commission and fees thereon) borrowed by any other Obligor under this Agreement
and made available to that Austrian Guarantor and/or its partners and/or its
Subsidiaries plus (v) the amount of any indebtedness capable of
being discharged by way of setting-off that Austrian Guarantor’s recourse claim
following an enforcement of this guarantee against any indebtedness owed by
that Austrian Guarantor to another Obligor.


 


18.13                 Dutch Guarantee Limitation


 


Notwithstanding
any other provision of this Agreement, the guarantee, indemnity and other
obligations of any Dutch Guarantor under this Clause 18 (Guarantee
and indemnity) shall be deemed not to be given to the extent that
the same 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 Clause 18 (Guarantee and indemnity) and
other provisions of this Agreement shall be construed accordingly.


 


18.14                 Finnish Guarantee Limitation


 


(a)                                 The liabilities and obligations guaranteed by a
Finnish Guarantor in its capacity as Guarantor under this Clause 18 (Guarantee and indemnity) shall not include, and no Finnish
Guarantor shall 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 (i) Chapter 13, Section 1 of the Finnish Companies Act
(1.9.2006/624, as amended) regulating distribution of assets and (ii) other
applicable mandatory provisions of Finnish corporate law.


 


(b)                                 Furthermore, the maximum amount payable at any time by
a Finnish Guarantor under the Agreement shall not exceed an amount equal to the
higher of the following:


 


(i)                                     the aggregate amount of (i) the aggregate amount
on the date of the Agreement, or on the date on which the Finnish Guarantor
became a Finnish Guarantor, if later, owing by that Finnish Guarantor (directly
or indirectly) to the Borrowers under any intragroup loan agreement or loan
agreements between that Finnish Guarantor and one or more of the Borrowers (or
any direct or indirect subsidiary of any Borrower) existing on the date hereof
or on the date on which the Finnish Guarantor became a Finnish Guarantor, if
later, and (ii) the aggregate amount of funds available for distribution
as a dividend of that Finnish Guarantor according to the Finnish Companies Act 


 


55

















 


on the date on
which any guaranteed party exercises any of its rights, remedies, powers or
discretions under any guarantee provided by that Finnish Guarantor pursuant to
the Agreement; or


 


(ii)                                  the aggregate amount of (i) the aggregate amount
owing by a Finnish Guarantor (directly or indirectly) to the Borrowers under
any intragroup loan agreement or loan agreements between that Finnish Guarantor
and one or more of the Borrowers (or any direct or indirect subsidiary of any
Borrower) existing on the date on which any guaranteed party exercises any of
its rights, remedies, powers or distributions under any guarantee provided by
that Finnish Guarantor pursuant to the Agreement and (ii) the aggregate
amount of funds available for distribution as a dividend of that Finnish
Guarantor according to the Finnish Companies Act on the date on which any
guaranteed party exercises any of its rights, powers or discretions under any
guarantee provided by that Finnish Guarantor pursuant to the Agreement; or


 


(iii)                               any higher amount (based on any direct or indirect economic
and operational benefit to that Finnish Guarantor derived under this Agreement)
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 that Finnish Guarantor under any
claim made under any guarantee under the Agreement.


 


18.15                 Guarantee limitations for German Guarantors


 


(a)                                 Each Finance Party agrees that the enforcement of the
guarantee and indemnity pursuant to this Clause 18 (Guarantee and
indemnity), other than in respect of Loans made available to such
Guarantor or to a Subsidiary of such Guarantor by a Lender, shall be limited,
in relation to 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 that guarantee
and indemnity would:


 


(i)                                     where the Affected German Guarantor is a GmbH, cause the
Affected German Guarantor’s net assets as per the date of enforcement of this
guarantee and indemnity (the “Relevant Net Assets”)
to fall below its registered share capital (Stammkapital);
or


 


(ii)                                  where the Affected German Guarantor is a GmbH & Co.
KG, would 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),


 


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.


 


(b)                                 For the purposes of the calculation of the limitation
pursuant to paragraph (a) above, the following balance sheet items shall
be adjusted as follows:


 


(i)                                     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 Agreement without the prior written consent of the Security Agent
shall be deducted from the relevant stated share capital;


 


56

















 


(ii)                                  loans provided to the Affected German Guarantor by a Group
Company shall be disregarded if such loans are subordinated within the meaning
of Section 39 subsection 2 German Insolvency Code (InsO); and


 


(iii)                               loans and other liabilities incurred in violation of the
provisions of this Agreement shall be disregarded,


 


(c)                                  In case of an enforcement of the guarantee pursuant to this
Clause 18 (Guarantee
and indemnity), 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).


 


(d)                                 The limitations set out in this Clause 18.15 shall not apply:


 


(i)                                     to any amounts due and payable under the guarantee and
indemnity pursuant to this Clause 18 (Guarantees and Indemnity)
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


 


(ii)                                  if following notification by the Security Agent to the Affected
German Guarantor of claims raised under the guarantee and indemnity pursuant to
this Clause 18 (Guarantee
and indemnity), 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.


 


(e)                                 No reduction of the amount enforceable under this guarantee
in accordance with the above limitations will prejudice the rights of the
Finance Parties to continue enforcing the guarantee (subject always to the
operation of the limitation set out above at the time of such enforcement)
until full satisfaction of the guaranteed claims.


 


18.16                 Guarantee Limitations for US Guarantors


 


Notwithstanding any
other provision of this Agreement, the guarantee, indemnity and other
obligations of any US Guarantor under this Clause 18 (Guarantee
and indemnity) shall not exceed the maximum aggregate amount of the
obligations of such US Guarantor under this Clause 18 (Guarantee
and indemnity) that would not render its obligations hereunder or
thereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548
of Title 11 of the United States Code or any comparable applicable provisions
of state law; provided, that, solely for calculating such maximum aggregate
amount with respect to each US Guarantor, any assets or liabilities of such US
Guarantor arising by virtue of any rights to subrogation, reimbursement or
indemnification or any rights to or obligations of contribution hereunder shall
not be considered as assets or liabilities of such US Guarantor.


 


18.17                 General Limitation


 


Without prejudice and
in addition to any limitation on the liability of any Additional Guarantor
otherwise provided for herein, the liability of each Additional Guarantor under
this 


 


57

















 


guarantee shall not
at any time exceed the lower of the amount of that Additional Guarantor’s outstanding
indebtedness (excluding for this purpose any indebtedness owing by one Group
Company to another Group Company) and any limits imposed upon its maximum
liability under this guarantee by mandatory applicable law.


 


18.18                 Limitations on Guarantee by Additional Guarantors


 


The guarantee of any
Additional Guarantor that is not an Austrian Guarantor, a Belgian Guarantor, a
Dutch Guarantor, a Finnish Guarantor, a German Guarantor or a US Guarantor
shall be subject to any limitation relating to that Additional Guarantor as set
out in any relevant Accession Letter and agreed by the Agent (acting
reasonably).


 


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SECTION 8


 


REPRESENTATIONS,
UNDERTAKINGS AND EVENTS OF DEFAULT


 


19.          REPRESENTATIONS


 


Each Obligor (except as otherwise
provided herein) makes the representations and warranties set out in this
Clause 19 to each Finance Party on the date of this Agreement.


 


19.1        Status


 


(a)           It is a corporation or limited partnership, duly
incorporated and validly existing under the law of its jurisdiction of
incorporation.


 


(b)           It and each of its Subsidiaries has the power to own
its assets and carry on its business as it is being conducted.


 


19.2        Binding obligations


 


(a)           The obligations expressed to be assumed by it in each
Finance Document are, subject to the Reservations, legal, valid and binding
obligations enforceable in accordance with their terms.


 


(b)           Without limiting the generality of paragraph (a) above,
each Transaction Security Document to which it is a party creates, subject to
the Reservations, the security interests which that Transaction Security
Document purports to create and those security interests are valid and
effective.


 


19.3        Non-conflict with other obligations


 


The entry into and performance by it
of, and the transactions contemplated by, the Finance Documents and the
granting of the Transaction Security do not and will not conflict with:


 


(a)           any law or regulation applicable to it;


 


(b)           the constitutional documents of any Group Company; or


 


(c)           to an extent which could reasonably be expected to have
a Material Adverse Effect, any agreement or instrument binding upon it or any
Group Company or any of its assets.


 


19.4        Power and authority


 


It has the power to enter into,
perform and deliver, and has taken all necessary action to authorise its entry
into, performance and delivery by it of, the Finance Documents to which it is a
party and the transactions contemplated by those Finance Documents.


 


19.5        Validity and admissibility in evidence


 


Subject to the Reservations, all
Authorisations required or desirable:


 


(a)           to enable it lawfully to enter into, exercise its
rights and comply with its obligations in the Finance Documents to which it is
a party; and


 


(b)           to make the Finance Documents to which it is a party
admissible in evidence in its jurisdiction of incorporation,


 


59

















 


have been obtained or effected and
are in full force and effect.


 


19.6        Governing law and enforcement


 


Subject to the Reservations:


 


(a)           the choice of the governing law of the Finance
Documents will be recognised and enforced in its jurisdiction of incorporation;
and


 


(b)           any judgment obtained in relation to a Finance Document
will be recognised and enforced in its jurisdiction of incorporation.


 


19.7        Deduction of Tax


 


It is not required to make any
deduction for or on account of Tax from any payment it may make under any
Finance Document.


 


19.8        No filing or stamp taxes


 


Subject to the Reservations, under
the law of its jurisdiction of incorporation it is not necessary that the
Finance Documents be filed, recorded or enrolled with any court or other
authority in that jurisdiction or that any stamp, registration, notarial or
similar Taxes or fees be paid on or in relation to the Finance Documents or the
transactions contemplated by the Finance Documents (other than (i) Austrian
stamp duty that may become payable if any Stamp Duty Sensitive Document is
brought into or produced in Austria, (ii) a Euro 0.15 documentary duty in accordance with the Belgian Code on
certain Rights and Taxes (Wetboek diverse rechten en
taksen / Code des droits et taxes
divers) for each copy of each Finance Document executed in Belgium
and/or, (iii) reasonable notary fees and immaterial registration fees to
be paid in connection with the registration of the Dutch Security Documents).


 


19.9        No Default


 


(a)           No Event of Default and, on the Signing Date, no
Default, is continuing or might reasonably be expected to result from the
making of any Utilisation.


 


(b)           No other event or circumstance is outstanding which
constitutes a default or termination event (however described) under any other
agreement or instrument which is binding on it or any of its Subsidiaries or to
which its (or any of its Subsidiaries’) assets are subject which has or is
reasonably likely to have a Material Adverse Effect.


 


19.10      No misleading information


 


(a)           The factual information contained in the Information
Package was true and accurate in all material respects as at the date it was
provided or as at the date (if any) at which it is stated.


 


(b)           Any financial projection or forecast contained in the
Information Package or the Base Case Model has been prepared on the basis of
recent historical information and on the basis of assumptions which have been
carefully considered by the management of the Company and are considered by
them to be fair and reasonable (at the date of the relevant report or document containing
the projection or forecast).


 


(c)           Any expressions of opinion or intention provided in the
Information Package represent the honestly held opinion or view of the relevant
Obligor or the Company 


 


60

















 


and were made after
careful consideration and were based on grounds believed by that Obligor or the
Company to be reasonable.


 


(d)           Nothing has occurred or has arisen and no information
has been omitted from the Information Package and no information has been given
or withheld that results in the information contained in the Information
Package being untrue or misleading in any material respect.


 


(e)           All other written information provided by any Group
Company (including its advisers) to a Finance Party was true, complete and
accurate in all material respects as at the date it was provided and was not
misleading in any material respect as at the date it was provided.


 


19.11      Financial statements


 


(a)           Its Original Financial Statements (if any) were
prepared in accordance with Applicable Accounting Principles consistently
applied.


 


(b)           In the case of Sappi Maastricht BV, Sappi Nijmegen BV,
Sappi Deutschland Holding GmbH, SD Warren Company, Sappi Netherlands BV, the
Company and Sappi Papier Holding GmbH, its unaudited Original Financial
Statements (if any) fairly represent its financial condition and results of
operations as at the end of and for the relevant Financial Year, or such other
period, as the case may be.


 


(c)           Other than in the case of Sappi Maastricht BV, Sappi
Nijmegen BV, Sappi Deutschland Holding GmbH, SD Warren Company, Sappi Cloquet
LLC and Sappi Netherlands BV its audited Original Financial Statements give a
true and fair view of its financial condition and results of operations as at
the end of and for the relevant financial year.


 


(d)           The Base Case Model was prepared in accordance with
GAAP consistently applied.


 


(e)           Its most recent financial statements delivered pursuant
to Clause 20.1 (Financial statements):


 


(i)            have
been prepared in accordance with Applicable Accounting Principles; and


 


(ii)           give
a true and fair view of (if audited) or fairly represent (if unaudited) its
consolidated financial condition as at the end of, and consolidated results of
operations for, the period to which they relate.


 


19.12      No Material Adverse Effect


 


Since 28 June 2009 there has
been no material adverse change in the business, condition (financial or
otherwise), operations or performance of the Group Companies (taken as a
whole).


 


19.13      Business Authorisations


 


Each Authorisation required by each
Group Company in connection with its business has been obtained or effected and
each Group Company is in full compliance with the same, save where failure to
obtain or effect such Authorisation or non-compliance with such Authorisation
is not reasonably likely to have a Material Adverse Effect.


 


61

















 


19.14      Pari passu ranking


 


Subject to the Reservations, the
Transaction Security has or will have the ranking in priority which it is
expressed to have in the Transaction Security Documents and is not subject to
any prior ranking or pari passu
ranking Security, save to the extent that such Transaction Security secures
other Senior Creditors on a pari passu
basis in accordance with the terms of the Intercreditor Agreement.


 


19.15      Environmental compliance


 


Each Group Company has complied in
all respects with all Environmental Law save to the extent that non-compliance
would not reasonably be likely to have a Material Adverse Effect.


 


19.16      Security and Financial Indebtedness


 


(a)           Save for the Existing Security, no Security exists over
all or any of the assets of any Group Company other than as permitted in this
Agreement.


 


(b)           No Group Company has any Financial Indebtedness
outstanding other than as permitted pursuant to Clause 22.9 (Financial Indebtedness).


 


19.17      Environmental claim


 


No Environmental Claim has been
commenced where that claim would be reasonably likely to have a Material
Adverse Effect.


 


19.18      Intellectual Property


 


It and each of its Subsidiaries:


 


(a)           is the legal and beneficial owner of or has licensed to
it on normal commercial terms all the Intellectual Property which is material
in the context of its business and which is required by it in order to carry on
its business as it is being conducted;


 


(b)           does not, in carrying on its business, infringe any
Intellectual Property of any third party; and


 


(c)           has taken all formal or procedural actions (including
payment of fees) required to maintain any material Intellectual Property owned
by it,


 


in each case where failure to do so
has or is reasonably likely to have a Material Adverse Effect.


 


19.19      Shares


 


The shares of any Group Company which
are subject to the Transaction Security are fully paid (except for the shares
of Sappi MagnoStar GmbH) and not subject to any option to purchase or similar
rights.  The constitutional documents of
companies whose shares are subject to the Transaction Security do not and could
not reasonably be expected to restrict or inhibit any transfer of those shares
on creation or enforcement of the Transaction Security.


 


19.20      Group Structure Chart


 


(a)           The Group Structure Chart is true, complete and
accurate in all material respects and shows each Group Company, including
current name, its jurisdiction of incorporation and/or establishment, and
indicates whether a company is dormant or is not a company with limited
liability.


 


62

















 


(b)           The accompanying list of shareholders of each Obligor
(other than from the Company) and list of intra-group loans which have been
disclosed to the Finance Parties on or prior to the date of this Agreement is,
in each case, true, complete and accurate as at the date it is given.


 


19.21      Centre of main interests and establishments


 


For the purpose of The Council of the
European Union Regulation No. 1346/2000 on Insolvency Proceedings (the “Regulation”), each Obligor having its registered office in a
member state of the European Union has its centre of main interest (as that term
is used in Article 3(1) of the Regulation) situated in that
jurisdiction and it has no “establishment” (as that term is used in Article 2(h) of
the Regulations) in any other jurisdiction.


 


19.22      Pensions


 


The pension schemes for the Group are
operated in accordance with the requirements of applicable law and are fully
funded to the extent required by law or otherwise to comply with the
requirements of any law applicable in the jurisdiction in which the relevant
pension scheme is maintained, in each case, where failure to do so has or is
reasonably likely to have a Material Adverse Effect.


 


19.23      Taxation


 


(a)           It is not (and none of its Subsidiaries is) materially
overdue in the filing of any Tax returns and it is not (and none of its
Subsidiaries is) overdue in the payment of any material amount in respect of
Tax.


 


(b)           No claims or investigations are being, or are
reasonably likely to be, made or conducted against it (or any of its
Subsidiaries) with respect of Taxes such that a liability of, or a claim against,
any Group Company is reasonably likely to arise which has, or is reasonably
likely to have, a Material Adverse Effect.


 


19.24      Insolvency


 


No:


 


(a)           corporate action, legal proceeding or other formal
procedure or convening of a meeting described in Clause 23.7 (Insolvency proceedings); or


 


(b)           creditor’s process described in Clause 23.8 (Creditor’s process),


 


has been taken or, to the knowledge
of the Company, threatened in relation to any Obligor or Material Subsidiary or
Sappi Manufacturing and none of the circumstances described in Clause 23.6 (Insolvency) applies to any Obligor or Material Subsidiary or
Sappi Manufacturing.


 


19.25      No proceedings pending or threatened


 


No litigation, arbitration or
administrative proceedings of or before any court, arbitral body or agency
which are reasonably likely to be adversely determined and which, if so
determined, are reasonably likely to have a Material Adverse Effect have been
started or formally threatened in writing against any Group Company.


 


63

















 


19.26      Representations relating to Guarantee by
Austrian Guarantors


 


Each Austrian Guarantor makes the
following representations and warranties to each Finance Party:


 


(a)           it has performed its own independent investigation into
the financial and commercial standing, creditworthiness, and legal status of
the other Obligors and has not relied on any information from the Agent, any of
the Mandated Lead Arrangers or any Lender in this respect;


 


(b)           any and all transactions entered into by the Austrian
Guarantor in connection with the Finance Documents have been entered into on
arm’s length terms and for the corporate benefit of the Austrian Guarantor;


 


(c)           it has checked and verified using the
diligence of a prudent businessman that on the date hereof it is (or would be)
in a financial position to comply with its obligations under Clause 18 (Guarantee and indemnity); and


 


(d)           the guarantee is entered into in
compliance with Austrian Capital Maintenance Rules and against adequate
consideration and in consideration for assuming the obligations (Verpflichtungen) and liabilities (Haftungen)
under Clause 18 (Guarantee and indemnity), the
Guarantor receives an adequate arm’s length guarantee fee (Avalprovision).


 


19.27      Representation relating to Austrian
Borrower


 


Each Austrian Borrower represents and
warrants to each Finance Party that it is acting as principal and for its own
account and not as an agent or trustee or in any other capacity on behalf of
any other party.


 


19.28      Representation relating to the Belgian
Borrower


 


Sappi International SA meets the
conditions of a finance company set forth in article 105 1° c) of the Belgian
Royal Decree implementing the Belgian Income Tax Code.


 


19.29      Good title to assets


 


It and each of its Material
Subsidiaries has good, valid and marketable title to, or valid leases and
licenses of, or is otherwise entitled to use, all material assets necessary to
carry on its business as it is being, and is proposed to be, conducted.


 


19.30      Obligors


 


(a)           (Other than the Company) it is 100 per cent. directly
or indirectly beneficially owned by the Company.


 


(b)           Each Material Subsidiary is an
Obligor.


 


19.31      No immunity in any legal process


 


No Obligor is entitled to immunity
from suit, execution, attachment or other legal process in its jurisdiction of
incorporation or England.


 


64

















 


19.32      Times when representations made


 


(a)           Except as otherwise provided herein, the
representations and warranties set out in this Clause 19 (except for Clause
19.10 (No misleading information)) are made by
each Original Obligor on the Signing Date.


 


(b)           The representations and warranties set out in Clause
19.10 (No misleading information) are deemed to
be made by each Obligor:


 


(i)            with
respect to the Information Memorandum, on the date on which the Information
Memorandum is approved by the Company, (save as disclosed in writing to the
Agent prior to such date) on any later date on which the Information Memorandum
is released to the Mandated Lead Arrangers for distribution in connection with
syndication and (save as disclosed in writing to the Agent prior to the
Syndication Date) the Syndication Date; and


 


(ii)           with
respect to the Base Case Model, on the date of this Agreement, (save as
disclosed in writing to the Agent prior to such date) on any later date on
which the Base Case Model is released to the Mandated Lead Arrangers for
distribution in connection with syndication and (save as disclosed in writing
to the Agent prior to the Syndication Date) the Syndication Date,


 


in each case by reference
to the facts and circumstances then existing.


 


(c)           The Repeating Representations are deemed to be made by
each Obligor on the date of each Utilisation Request and the first day of each
Interest Period, by reference to the facts and circumstances then existing.


 


(d)           The Repeating Representations and the representations
and warranties set out in Clause 19.5 (Validity and admissibility
in evidence) and Clause 19.8 (No filing or stamp taxes)
are deemed to be made by each Additional Obligor on the day on which it becomes
an Additional Obligor (or it is proposed that it becomes an Additional
Obligor), by reference to the facts and circumstances then existing.


 


(e)           The representation and warranty set out in paragraph (e) of
Clause 19.11 (Financial statements) is deemed
to be made by each Obligor on the date of supply of each set of financial
statements under paragraph (a) of Clause 20.1 (Financial
statements) and paragraph (c) of Clause 20.1 (Financial statements).


 


20.          INFORMATION
UNDERTAKINGS


 


20.1        Financial statements


 


The Company shall supply to the Agent
in sufficient copies for all the Lenders:


 


(a)           as soon as the same become available, but in any event
within 120 days after the end of each of its financial years the audited
consolidated financial statements (including a profit and loss statement, a
cash flow statement and balance sheet) of the Group;


 


(b)           as soon as the same become available, but in any event
within 180 days after the end of each of their financial years, the audited
unconsolidated financial statements (including a profit and loss statement, a
cashflow statement and balance sheet) of each of the Company, Sappi Papier
Holding GmbH, Sappi International SA and (to the extent it remains a Group
Company) SD Warren Company and (if required to be produced by law) each other
Obligor for that financial year;


 


65

















 


(c)           as soon as the same become available, but in any event
within 45 days of each Quarter Date, the unaudited consolidated interim report
for the Group for the period of three months ending on such Quarter Date; and


 


(d)           as soon as the same become available, but in any event
within 75 days of each Quarter Date, the unaudited consolidated interim report
for Sappi Papier Holding GmbH for the period of three months ending on such
Quarter Date.


 


20.2        Compliance Certificate


 


(a)           The Company shall supply to the Agent, with each set of
financial statements or interim report of the Group delivered pursuant to
paragraphs (a) or (c) of Clause 20.1 (Financial
statements), a Compliance Certificate signed by two directors each
of whom must be either a director of Sappi International SA or a director of
Sappi Papier Holding GmbH setting out (in reasonable detail) computations as to
compliance with Clause 21 (Financial Covenants)
as at the date as at which those financial statements were drawn up and
confirmation that no Default is continuing or, if a Default is continuing,
specifying that Default and giving reasonable details as to the steps being
taken to remedy it.


 


(b)           The Compliance Certificate delivered with the financial
statements delivered pursuant to paragraph (a) of Clause 20.1 (Financial statements) shall also set out the Material
Subsidiaries and show in reasonable detail the computations for determination
thereof.


 


(c)           The Compliance Certificate delivered with the financial
statements delivered pursuant to paragraph (c) of Clause 20.1 (Financial statements) shall also set out:


 


(i)            the earnings before interest, tax,
depreciation and amortisation (calculated on the same basis as EBITDA, as
defined in Clause 21 (Financial Covenants))
of each Excluded Subsidiary as a percentage of the consolidated EBITDA (as
defined in Clause 21 (Financial Covenants))
of the Group;


 


(ii)           the gross assets of each Excluded
Subsidiary as a percentage of the consolidated gross assets of the Group; and


 


(iii)          computations for determination and
compliance with the Guarantor Coverage Test including details of the EBITDA and
consolidated gross assets of Guarantors which are members of the Guarantor
Coverage Group as a percentage of the EBITDA and consolidated gross assets of
the Guarantor Coverage Group,


 


in each case, showing in reasonable
detail the computations for determination thereof.


 


20.3        Requirements as to financial statements


 


(a)           Each set of financial statements of the Group delivered
by the Company pursuant to paragraphs (a) or (c) of Clause 20.1 (Financial statements) shall be certified by two directors of
the Company as fairly representing the financial condition of the Group as at
the date as at which those financial statements were drawn up.


 


(b)           The Company shall procure that each set of financial
statements or interim report delivered pursuant to Clause 20.1 (Financial statements) is prepared using the Applicable
Accounting Principles for those financial statements or interim report unless,
in relation to any set of financial statements or interim report, it notifies
the 


 


66

















 


Agent that there has
been a material change in GAAP, or the accounting practices or reference
periods and its auditors deliver to the Agent:


 


(i)            a
description of any change necessary for those financial statements to reflect
the Applicable Accounting Principles; and


 


(ii)           sufficient
information, in form and substance as may be reasonably required by the Agent,
to enable the Lenders to determine whether Clause 21 (Financial
Covenants) has been complied with and make an accurate comparison
between the financial position indicated in those financial statements or
interim report and the Original Financial Statements.


 


The reference in Clause 21.3 (Financial
testing and Adjustments) to each of the financial statements and
interim reports delivered pursuant to this Clause 20 (Information
Undertakings) shall be construed as a reference to such financial
statements and interim reports as adjusted to reflect the Applicable Accounting
Principles.


 


(c)           If the Company notifies the Agent of a change in
accordance with paragraph (b) above then the Company and Agent shall enter
into negotiations in good faith with a view to agreeing:


 


(i)            whether
or not the change might result in any material alteration in the commercial
effect of any of the terms of this Agreement; and


 


(ii)           if
so, any amendments to this Agreement which may be necessary to ensure that the
change does not result in any material alteration in the commercial effect of
those terms.


 


If any amendments are agreed in accordance with this
paragraph (c) they shall take effect and be binding on each of the Parties
in accordance with their terms.


 


20.4        Information: miscellaneous


 


(a)           Each Obligor shall supply to the Agent (in sufficient
copies for all the Lenders, if the Agent so requests):


 


(i)            evidence that the auditors of the Company
have reviewed the financial covenant calculations in each Compliance
Certificate delivered with the annual consolidated financial statements of the
Group and have issued an agreed upon procedures report in respect of such
calculations in the terms of the international standard on related services
(ISRS 4400) by no later than the date of the release of the annual report of
the Group in respect of that financial year;


 


(ii)           an annual update (comprising the management
case and bank case three year forecasts for the Group) (the “Annual Update”) by no later than the date which is 30 days
after the beginning of each financial year of the Company;


 


(iii)          all documents dispatched by it to its
shareholders (or any class of them) or its creditors generally (or any class of
them) at the same time as they are dispatched;


 


(iv)           promptly upon becoming aware of them, the
details of any litigation, arbitration or administrative proceedings (including
an Environmental Claim) which are formally threatened in writing pending or
current against any 


 


67

















 


Group Company which
are reasonably likely to be adversely determined and which, if so determined,
are reasonably likely to have a Material Adverse Effect; and


 


(v)            promptly, such further information
regarding the Charged Property, financial condition, business and operations of
the Group as any Lender (through the Agent) may reasonably request.


 


(b)           The Company shall ensure that the chief financial
officer or the group treasurer of the Group participate in an annual
presentation (which may be by way of conference call) on the Group to the
Lenders.


 


20.5        Notification of default


 


(a)           Each Obligor shall notify the Agent of any Default (and
the steps, if any, being taken to remedy it) promptly upon becoming aware of
its occurrence (unless the Agent has received such notification from another
Obligor).


 


(b)           Promptly upon a request by the Agent, the Company shall
supply to the Agent a certificate signed by a director or senior officer on its
behalf certifying that no Default is continuing (or if a Default is continuing,
specifying the Default and the steps, if any, being taken to remedy it).


 


20.6        Change in Material Subsidiaries


 


The Company shall set out in the
Compliance Certificate supplied with each set of financial statements delivered
pursuant to paragraph (a) of Clause 20.1 (Financial
statements) the identity and details of the Material Subsidiaries.


 


20.7        “Know your customer” checks


 


(a)           If:


 


(i)            the
introduction of or any change in (or in the interpretation, administration or
application of) any law or regulation made after the date of this Agreement;


 


(ii)           any
change in the status of an Obligor after the date of this Agreement; or


 


(iii)          a
proposed assignment or transfer by a Lender of any of its rights and
obligations under this Agreement to a party that is not a Lender prior to such
assignment or transfer,


 


obliges the Agent or any
Lender (or, in the case of paragraph (iii) above, any prospective new
Lender) to comply with “know your customer” or similar identification
procedures in circumstances where the necessary information is not already
available to it, each Obligor shall promptly upon the request of the Agent or
any Lender supply, or procure the supply of, such documentation and other
evidence as is reasonably requested by the Agent (for itself or on behalf of
any Lender) or any Lender (for itself or, in the case of the event described in
paragraph (iii) above, on behalf of any prospective new Lender) in order
for the Agent, such Lender or, in the case of the event described in paragraph (iii) above,
any prospective new Lender to carry out and be satisfied it has complied with
all necessary “know your customer” or other similar checks under all applicable
laws and regulations pursuant to the transactions contemplated in the Finance
Documents.


 


68














 


(b)           Each Lender shall promptly upon the request of the
Agent supply, or procure the supply of, such documentation and other evidence
as is reasonably requested by the Agent (for itself) in order for the Agent to
carry out and be satisfied it has complied with all necessary “know your
customer” or other similar checks under all applicable laws and regulations
pursuant to the transactions contemplated in the Finance Documents.


 


20.8        Websites


 


(a)           The Company may satisfy its obligation under this
Agreement to deliver any information in relation to those Lenders (the “Website Lenders”) who accept this method of communication by
posting this information onto an electronic website designated by the Company
and the Agent (the “Designated Website”)
if:


 


(i)            the Agent expressly agrees (after
consultation with each of the Lenders) that it will accept communication of the
information by this method;


 


(ii)           both the Company and the Agent are aware of
the address of and any relevant password specifications for the Designated
Website; and


 


(iii)          the information is in a format previously
agreed between the Company and the Agent.


 


If any Lender (a “Paper Form Lender”) does not agree to the delivery of
information electronically then the Agent shall notify the Company accordingly
and the Company shall supply the information to the Agent (in sufficient copies
for each Paper Form Lender) in paper form. In any event the Company shall
supply the Agent with at least one copy in paper form of any information
required to be provided by it.


 


(b)           The Agent shall supply each Website Lender with the
address of and any relevant password specifications for the Designated Website
following designation of that website by the Company and the Agent.


 


(c)           The Company shall promptly upon becoming aware of its
occurrence notify the Agent if:


 


(i)            the Designated Website cannot be accessed
due to technical failure;


 


(ii)           the password specifications for the
Designated Website change;


 


(iii)          any new information which is required to be
provided under this Agreement is posted onto the Designated Website;


 


(iv)           any existing information which has been
provided under this Agreement and posted onto the Designated Website is
amended; or


 


(v)            the Company becomes aware that the
Designated Website or any information posted onto the Designated Website is or
has been infected by any electronic virus or similar software.


 


If the Company notifies
the Agent under paragraph (c)(i)or paragraph (c)(v) above, all information
to be provided by the Company under this Agreement after the date of that
notice shall be supplied in paper form unless and until the Agent and each
Website Lender is satisfied that the circumstances giving rise to the
notification are no longer continuing.


 


69

















 


(d)           Any Website Lender may request, through the Agent, one
paper copy of any information required to be provided under this Agreement
which is posted onto the Designated Website. The Company shall comply with any
such request within ten Business Days.


 


21.          FINANCIAL COVENANTS


 


21.1        Financial covenants


 


The Company shall ensure that:


 


(a)           the ratio of EBITDA to Consolidated Net Interest
Expense as at the end of the Relevant Period ending on the last day of each
Quarter specified in Column A shall not be less than the ratio specified
opposite the date in Column B below:


 


	
  Column A

  (last day of the relevant Quarter)

  	
   

  	
  Column B

  
	
  27
  September 2009

  	
   

  	
  2.00
  : 1

  
	
  27
  December 2009

  	
   

  	
  2.00
  : 1

  
	
  28
  March 2010

  	
   

  	
  2.00
  : 1

  
	
  27
  June 2010

  	
   

  	
  2.00
  : 1

  
	
  26
  September 2010

  	
   

  	
  2.00
  : 1

  
	
  2
  January 2011

  	
   

  	
  2.00
  : 1

  
	
  3
  April 2011

  	
   

  	
  2.00
  : 1

  
	
  3
  July 2011

  	
   

  	
  2.00
  : 1

  
	
  2
  October 2011

  	
   

  	
  2.25
  : 1

  
	
  1
  January 2012

  	
   

  	
  2.25
  : 1

  
	
  1
  April 2012

  	
   

  	
  2.25
  : 1

  
	
  1
  July 2012

  	
   

  	
  2.50
  : 1

  
	
  30
  September 2012

  	
   

  	
  2.50
  : 1

  



 


(b)           the ratio of Net Debt as at the end of any Relevant
Period ending on the last day of each Quarter specified in Column A below to
EBITDA for the Relevant Period shall not exceed the ratio specified opposite
the date in Column B below:


 


	
  Column A

  (last day of the relevant Quarter)

  	
   

  	
  Column B

  
	
  27
  September 2009

  	
   

  	
  6.00
  : 1

  
	
  27
  December 2009

  	
   

  	
  6.00
  : 1

  



 


70

















 


	
  Column A

  (last day of the relevant Quarter)

  	
   

  	
  Column B

  
	
  28
  March 2010

  	
   

  	
  5.50
  : 1

  
	
  27
  June 2010

  	
   

  	
  5.25
  : 1

  
	
  26
  September 2010

  	
   

  	
  5.00
  : 1

  
	
  2
  January 2011

  	
   

  	
  5.00
  : 1

  
	
  3
  April 2011

  	
   

  	
  5.00
  : 1

  
	
  3
  July 2011

  	
   

  	
  5.00
  : 1

  
	
  2
  October 2011

  	
   

  	
  4.50
  : 1

  
	
  1
  January 2012

  	
   

  	
  4.25
  : 1

  
	
  1
  April 2012

  	
   

  	
  4.25
  : 1

  
	
  1
  July 2012

  	
   

  	
  4.25
  : 1

  
	
  30
  September 2012

  	
   

  	
  4.00
  : 1

  



 


(c)           the aggregate Capital Expenditure of
the Group (other than Capital Expenditure funded by the retention of the
proceeds of disposals in accordance with Clause 8.4 (Disposal
Proceeds)), in respect of any Financial Year specified in Column 1
below shall not exceed the amount set out in Column 2 opposite that Financial
Year where the ratio of Net Debt to EBITDA specified in the latest Compliance
Certificate supplied pursuant to paragraph (a) of Clause 20.2 (Compliance Certificate) exceeds 4 : 1 (the “Capex Restriction”).


 


	
  Column 1

  	
   

  	
  Column 2

  
	
  Financial Year ending

  	
   

  	
  Capital Expenditure

  
	
  2009

  	
   

  	
  US$175
  million

  
	
  2010

  	
   

  	
  US$268
  million

  
	
  2011

  	
   

  	
  US$266
  million

  
	
  2012

  	
   

  	
  US$262
  million

  



 


If in any
Financial Year which is subject to the Capex Restriction (the “Original Financial Year”) the amount of Capital Expenditure
is less than the maximum amount permitted for that Original Financial Year, the
amount of such difference may be carried forward to future Financial Years to
make Capital Expenditures in such Financial Years.


 


21.2        Financial definitions


 


“Capital Expenditure”
means any expenditure or obligation in respect of expenditure which, in
accordance with the Applicable Accounting Principles, is treated as capital
expenditure 


 


71

















 


(and including the capital element of
any expenditure or obligation incurred in connection with a finance lease).


 


“Consolidated Net Interest
Expense” means, without double counting, in relation to any Relevant
Period, the aggregate of:


 


(a)           all interest (excluding any interest on the proceeds of
the Bonds whilst such proceeds are in an escrow account), commissions, fees,
discounts, prepayment fees, provisions and other financing charges (for the
avoidance of doubt, excluding any fees that could, in good faith, be described
as up-front fees or arrangement fees in connection with the New Financings),
payable by any Group Company to any person who is not a Group Company in
respect of that period;


 


(b)           all amounts payable by any Group Company in respect of
that period under any interest rate protection agreement (less any amounts
receivable by any Group Company in respect of that period under any interest
rate protection agreement); and


 


(c)           the interest element of all rentals or, as the case may
be, other amounts payable in respect of that period under any finance lease
entered into by any Group Company,


 


less any interest receivable (other
than interest receivable from Group Companies) by Group Companies and ignoring
any foreign currency and fair value adjustments.


 


“EBITDA” means,
in respect of any period, the consolidated profit on ordinary activities of the
Group before interest, taxation and Special Items (if applicable) for such
period, but adjusted, without double counting:


 


(a)           by adding back depreciation for such period;


 


(b)           by adding back any amount amortised in that period
against the consolidated profit and loss account of the Group;


 


(c)           by adding back any carbon credit sales tax credits and
alternative fuel tax credits for such period to the extent receivable in cash;
and


 


(d)           by adding back any non-cash compensation charge
(including such charge arising from any grant for the issuance of stock options
or other equity based awards or any black empowerment regulation) for such
period.


 


“Net Debt”  means the aggregate, on a consolidated basis,
of all obligations of the Group Companies for or in respect of Financial
Indebtedness at that time including the capital element of all rentals or, as
the case may be, other payments payable under any finance lease entered into by
the Group, less cash and cash equivalents as defined in IAS 7.6.


 


“Relevant Period”
means, subject to Clause 21.3 (Financial testing and
Adjustments) each period of four consecutive Quarters ending on a
Quarter Date.


 


“Special Items”
means any extraordinary, exceptional or unusual gain, loss or charge 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 or any charges, or reserves directly related to any restructuring,
redundancy, integration or severance or any expenses, charges reserves or other
transaction costs directly related to acquisitions, the New Financings or any
Broad-Based Black Economic Empowerment Act 53 of 2003 transaction.


 


72

















 


21.3        Financial testing and Adjustments


 


(a)           With respect to the financial covenant set out in
paragraph (b) of Clause 21.1 (Financial covenants),
Net Debt shall be tested against the Net Debt as at the end of the relevant
Quarter Date and EBITDA will be tested on a rolling aggregate basis for the
immediately preceding 12 months ending on each of the dates specified in Column
A.


 


(b)           The financial covenants set out in Clause 21.1 (Financial covenants) shall be tested by reference to each of
the financial statements and interim reports delivered pursuant to Clause 20 (Information Undertakings).


 


(c)           With respect to the financial
covenant set out in paragraph (b) of Clause 21.1 (Financial
covenants), the exchange rate used in relation to Net Debt as at the
end of any Relevant Period ending on the last day of any Quarter shall be the
average exchange rate used for EBITDA for the Relevant Period ending on the
last day of that Quarter.


 


21.4        Accounting terms


 


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


 


22.          GENERAL UNDERTAKINGS


 


The undertakings in this Clause 22
remain in force from the date of this Agreement for so long as any amount is
outstanding under the Finance Documents or any Commitment is in force.


 


22.1        Authorisations


 


Each Obligor shall promptly:


 


(a)           obtain,
comply with and do all that is necessary to maintain in full force and effect;
and


 


(b)           on
demand, supply certified copies to the Agent of:


 


any Authorisation (including without limitation, all
SARB Approvals) in each case required to:


 


(i)            enable it to perform its obligations under the Finance
Documents;


 


(ii)           to ensure the legality, validity and (subject to the
Reservations) enforceability or admissibility in evidence of each Finance
Document; and


 


(iii)          carry on its business where failure to do so has or is
reasonably likely to have a Material Adverse Effect.


 


22.2        Compliance with laws


 


Each Obligor shall (and shall procure
that each Group Company will):


 


(a)           comply
with all laws to which it may be subject to the extent that failure so to
comply does not have, or is not reasonably likely to have, a Material Adverse
Effect; and


 


(b)           comply
with all terms of the SARB Approvals.


 


73

















 


22.3        Environmental Compliance


 


Each Obligor shall (and shall procure
that each Group Company will):


 


(a)           comply with all Environmental Law;


 


(b)           obtain, maintain and ensure compliance with all
requisite Environmental Permits; and


 


(c)           implement procedures to monitor compliance with and to
prevent liability under any Environmental Law,


 


where failure to do so has or is
reasonably likely to have a Material Adverse Effect.


 


22.4        Environmental Claims


 


Each Obligor shall, promptly upon
becoming aware of the same, inform the Agent in writing of:


 


(a)           any Environmental Claim against any Group Company which
is current, pending or threatened; and


 


(b)           any facts or circumstances which are reasonably likely
to result in any Environmental Claim being commenced or threatened against any
Group Company,


 


where the claim is reasonably likely
to be adversely determined and, if so determined against that Group Company,
has or is reasonably likely to have a Material Adverse Effect.


 


22.5        Taxation


 


Each Obligor shall (and shall procure
that each Group Company will) pay and discharge all Taxes imposed upon it or
its assets within the time period allowed without incurring penalties unless
and only to the extent that:


 


(a)           such overdue payment is being contested in good faith;


 


(b)           adequate reserves are being maintained for those Taxes
and the costs required to contest them which, if required in accordance with
GAAP, have been and/or will be (as appropriate) disclosed in its latest
financial statements delivered to the Agent under Clause 20.1 (Financial statements); and


 


(c)           such payment can be lawfully withheld (or, if
unlawfully withheld, can be so withheld subject only to a fine which does not
have or is not reasonably likely to have a Material Adverse Effect) and failure
to pay those Taxes does not have or is not reasonably likely to have a Material
Adverse Effect.


 


22.6        Pensions


 


Each Obligor shall, (and shall
procure that each Group Company will) ensure that all pension schemes operated
by the Group are operated in accordance with the requirements of applicable law
and are fully funded to the extent required by law in each case, where failure
to do so has or is reasonably likely to have a Material Adverse Effect.


 


22.7        Negative pledge


 


(a)           Subject to paragraph (b) below, the Company shall
not (and shall ensure that no other Group Company will) create or permit to
subsist any Security over any of its assets other than:


 


74

















 


(i)            any Security created  under any Finance Document;


 


(ii)           any Security arising by operation of law or
in the ordinary course of trade;


 


(iii)          any Security granted in the ordinary course
of trade over accounts created pursuant to any deposit or retention of purchase
price arrangements;


 


(iv)           any netting or set-off arrangement entered
into by any Group Company in the ordinary course of its banking arrangements
for the purpose of netting debit and credit balances of Group Companies;


 


(v)            any Security over an asset of a Group
Company established to hold assets of any share option scheme of the Group
securing any loan from a Group Company to finance the acquisition of such
assets;


 


(vi)           any Security over an asset of a Group
Company, or any company which becomes a Group Company, to secure Financial
Indebtedness incurred by such company for the purpose of purchasing that asset
or of refinancing any such Financial Indebtedness where recourse for that
Financial Indebtedness is limited solely to such Security, provided that such
Security secures Financial Indebtedness, the aggregate outstanding principal
amount of which does not exceed Euro 50,000,000 (or its equivalent in any
currency or currencies) at any time;


 


(vii)          any Security over treasury shares in a Group
Company which have been purchased pursuant to a share buy-back scheme;


 


(viii)         any Security over or affecting any property
or asset of a Group Company after the date of this Agreement, where the
Security is created prior to the date on which that company becomes a Group
Company, if:


 


(A)           the Security was not created in contemplation of the
acquisition of that company;


 


(B)           the principal amount secured has not increased in
contemplation of or since the acquisition of that company; and


 


(C)          the Security is removed or discharged within three
months of that company becoming a Group Company;


 


(ix)           any Security over or affecting any property
or asset acquired by a Group Company after the date of this Agreement if:


 


(A)           the Security was not created in contemplation of the
acquisition of that asset by a Group Company;


 


(B)           the principal amount secured has not been increased in
contemplation of or since the acquisition of that asset by a Group Company; and


 


(C)          the Security is removed or discharged within three months
of the date of acquisition of such asset;


 


(x)            any Security listed in Part I of
Schedule 9 (Existing Security, Guarantees and Intercompany
Loans) where the principal amount secured has not been increased
since the date of this Agreement unless expressly permitted by the terms of
this Agreement;


 


75

















 


(xi)           any Security granted by a Group Company
over trade receivables as part of any invoice discounting, factoring or
securitisation arrangement which trade receivables have a maturity of less than
364 days where the aggregate principal amount of Financial Indebtedness secured
by such Security does not exceed Euro 600,000,000 (or its equivalent in any
currency or currencies) provided that to the extent security created pursuant
to paragraph (xvi) below is security for a securitisation, the amount referred
to herein shall be decreased by the principal amount of the securitisation
secured by such Security;


 


(xii)          any Security granted by a Group Company
(other than an Obligor) in favour of another Group Company or Security granted
by an Obligor in favour of another Obligor, provided that no Non-Obligor
Chargor or member of the Guarantor Coverage Group may grant any Security in
favour of, or for the benefit of, a Sappi Manufacturing Group Company;


 


(xiii)         any retention or extended retention of
title, hire purchase or conditional sale arrangements or other arrangements
having the same effect and rights of set-off arising in the ordinary course of
trade with suppliers of goods and services to any Group Company and if arising
as a result of any default or omission by any Group Company, which does not
subsist for a period of more than 90 days;


 


(xiv)         any Security granted with the prior consent
of the Majority Lenders;


 


(xv)          any Security granted in favour of a Senior
Creditor to the extent that such Security secures all Senior Creditors on a pari passu basis and is otherwise permitted under the terms
of the Intercreditor Agreement;


 


(xvi)         any Security created over the M-Real
Trade Receivables to secure Financial Indebtedness permitted under Clause 22.9
(Financial Indebtedness);


 


(xvii)        any Bond Only Security (as defined in the
Intercreditor Agreement); and


 


(xviii)       any Security not falling within any of
paragraphs (i) to (xvii) above over an asset which secures indebtedness,
the principal amount of which (when aggregated with the principal amount of any
other indebtedness which has the benefit of Security given by any Group Company
(other than Security falling within paragraphs (i) to (xvii) above
inclusive)) does not exceed Euro 50,000,000 (or its equivalent in any currency
or currencies) at any time.


 


(b)           The Company shall procure that no Sappi
Manufacturing Group Company will create or permit to subsist any Security over
any of its assets for Sappi Manufacturing Group Indebtedness other than
Security permitted under sub-paragraphs (ii) (arising by operation of law
only), (iv), (viii), (ix), (x), (xi), (xii), (xiv) or (xviii) of paragraph (a) above.


 


22.8        Disposals


 


(a)           Subject to paragraph (b) below, the Company shall
not (and shall ensure that no other Group Company will), enter into a Disposal
other than a Disposal:


 


(i)            made in the ordinary course of the day to
day business of a Group Company;


 


(ii)           of any assets by any Obligor to another
Obligor;


 


76

















 


(iii)          of any assets by any Group Company which is
not an Obligor to another Group Company;


 


(iv)           of assets by an Obligor to another Group
Company which is not an Obligor provided that the aggregate of the fair market
value consideration for such assets does not, when aggregated with the fair
market value consideration for any other assets disposed of by an Obligor to a
Group Company which is not an Obligor falling within this paragraph, exceed
Euro 50,000,000 (or its equivalent in any currency or currencies) at any time;


 


(v)            of cash on terms not otherwise prohibited
by this Agreement;


 


(vi)           of assets (other than shares, businesses,
real property (excluding forestry plantations) and intellectual property) in
exchange on arm’s length terms for other assets comparable or superior as to
type and quality and of the same or superior value;


 


(vii)          of an asset which is obsolete for the
purpose for which such an asset is normally utilised;


 


(viii)         to which the Majority Lenders have given
their prior consent;


 


(ix)           occurring directly as a result of any
arrangement permitted by Clause 22.7 (Negative pledge)
to the extent such arrangement constitutes a Disposal;


 


(x)            occurring directly as a result of any
arrangement permitted by Clause 22.13 (Loans and Guarantees)
to the extent that any such arrangement constitutes a Disposal;


 


(xi)           occurring directly as a result of any sale
and leaseback transaction where the aggregate principal amount of Financial
Indebtedness to which all such sale and leaseback transactions relate does not
exceed Euro 100,000,000 (or its equivalent in any currency or currencies) at
any time;


 


(xii)          to another Group Company as part of a
merger permitted pursuant to Clause 22.10 (Merger);


 


(xiii)         of assets compulsorily acquired by any
governmental authority or of assets as a result of valid and adjudicated or
settled claims made pursuant to the Restitution of Land Rights Act, Act 22 of
1994 provided just and equitable compensation is received as a result of such
Disposal;


 


(xiv)         which constitutes a Permitted Lereko
Disposal;


 


(xv)          which constitutes a Permitted Kangas
Disposal;


 


(xvi)         which constitutes a Permitted SMF
Plantation Disposal;


 


(xvii)        of receivables occurring directly as a
result of any invoice discounting, factoring or securitisation arrangement
permitted pursuant to Clause 22.9 (Financial Indebtedness); and


 


(xviii)       (not falling within subparagraphs (i) to
(xvii) above inclusive) which, does not result in the gross book value of all
the assets the subject of all such Disposals made after the date of this
Agreement, exceeding in aggregate 3.5 per cent. of the total gross assets of
the Group (as at the date of this Agreement).


 


77

















 


(b)           Any Disposal by a Group Company (the “Transferor”) to another Group Company (the “Transferee”) of an asset subject to Transaction Security
which is otherwise permitted under paragraph (a) above shall only be
permitted where either:


 


(i)            such Disposal is made subject to the
existing Transaction Security granted by the Transferor and prior to the
Disposal the Agent confirms it is either satisfied that, or receives advice
from counsel in form and substance reasonably satisfactory to it (subject to
customary exceptions and qualifications) confirming that:


 


(A)           such Transaction Security will
continue in full force and effect following the Disposal and its ranking and
validity will not be impaired in any material respect as a consequence of such
Disposal; and


 


(B)           such Transaction Security will
continue to secure an amount no less than that secured prior to the Disposal;
or


 


(ii)           the Transferee grants equivalent
Security over the relevant asset (the “Replacement Security”)
and prior to the Disposal:


 


(A)           the Agent confirms that the
Replacement Security is in form and substance satisfactory to it (acting
reasonably); and


 


(B)           the Agent receives advice from
counsel in form and substance reasonably satisfactory to it (subject to
customary exceptions and qualifications) confirming that the Replacement
Security:


 


(1)           is valid, binding and enforceable and
has an equivalent or better ranking to the Transaction Security granted by the
Transferor;


 


(2)           secures an amount no less than that
secured by the Transaction Security granted by the Transferor; and


 


(3)           is not subject to (aa) any limitation
or imperfection in any material respect which the Transaction Security granted
by the Transferor was not subject to, or (bb) any new hardening period, in each
case, in equity or at law,


 


provided that the additional
requirements of this paragraph (b) shall not apply where the Disposal is
of inventory in the ordinary course of intra-group dealings for the purpose of
facilitating the Transferee’s operational use of such inventory.


 


22.9        Financial Indebtedness


 


(a)           The Company shall ensure that no Group Company (other
than a Sappi Manufacturing Group Company and each of Sappi International SA,
the Company and Sappi Papier Holding GmbH (for so long as such entity is an
Obligor)) shall incur any Financial Indebtedness other than Financial
Indebtedness:


 


(i)            under any Finance Document or referred to
in Schedule 10 (Existing Subsidiary External Indebtedness);


 


(ii)           any Financial Indebtedness incurred in
respect of any derivative or hedging transaction permitted pursuant to Clause
22.17 (Hedging);


 


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(iii)          incurred pursuant to any sale and leaseback
transaction where the aggregate principal amount of Financial Indebtedness to
which all such sale and leaseback transactions relate does not exceed Euro
100,000,000 (or its equivalent in any currency or currencies) at any time;


 


(iv)           arising in circumstances permitted in
Clause 22.13 (Loans and Guarantees);


 


(v)            of any person acquired by a Group Company
after the date of this Agreement which is incurred under arrangements in place
at the date of acquisition but not incurred or increased or having its maturity
date extended in contemplation of, or since, that acquisition, and outstanding
only for a period of no longer than three months following the date of
acquisition;


 


(vi)           raised under any current account,
overdraft, letter of credit, foreign exchange, SWIFT, and BACS facilities made
available by local banks, the aggregate principal amount of which does not
exceed Euro 100,000,000 (or its equivalent in any currency or currencies) at
any time;


 


(vii)          arising under any cash pooling or
management agreement in the ordinary course of banking arrangements for the
purpose of netting debt and credit balances between Group Companies;


 


(viii)         until the date of the first Utilisation of
the Facility, under the Existing RCF Facility;


 


(ix)           arising under the New Financings or the
loan by PE Paper Escrow GmbH to Sappi Papier Holding GmbH of the proceeds of
the Bonds and to the extent not already included within paragraph (a)(x) below,
the Available Financings;


 


(x)            arising under any invoice discounting,
factoring or securitisation arrangement where the aggregate principal amount of
Financial Indebtedness raised under all such invoice discounting, factoring or
securitisation arrangements does not exceed Euro 600,000,000 at any time;


 


(xi)           arising under finance leases, the aggregate
principal amount of which does not exceed Euro 50,000,000 (or its equivalent in
any currency or currencies) at any time;


 


(xii)          arising under forward sale agreements,
deferred purchase agreements and deferred payment arrangements entered into
pursuant to an employee share option scheme, unit trust or management incentive
scheme; and


 


(xiii)         not included in paragraphs (i) to
(xii) above inclusive but which does not exceed, for the Group, Euro 25,000,000
(or its equivalent in any currency or currencies) in aggregate principal amount
at any time.


 


(b)           The Company shall ensure that the aggregate principal
amount of Sappi Manufacturing Group Indebtedness does not exceed South African
Rand 5.5 billion (or its equivalent in any currency or currencies) at any time.


 


22.10      Merger


 


The Obligors shall ensure that no Group
Company shall enter into any amalgamation, demerger, merger, consolidation or
corporate reconstruction other than:


 


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(a)           an amalgamation, demerger, merger, consolidation or
corporate reconstruction of a Group Company which is not an Obligor or
Non-Obligor Chargor with another Group Company so long as any assets
distributed as a result of such action are distributed to other Group
Companies;


 


(b)           a merger or amalgamation of PE Paper Escrow GmbH into
Sappi Papier Holding GmbH with Sappi Papier Holding GmbH as the surviving
entity;


 


(c)           a solvent liquidation or reorganisation of a Guarantor
(which is not also a Borrower) or Non-Obligor Chargor (the “Relevant Group Company”) where, in each case, any assets
distributed as a result of such solvent liquidation or reorganisation are
distributed to an Obligor and if such assets are subject to Transaction
Security:


 


(i)            the relevant Obligor receiving such assets
grants equivalent Security over the assets (the “Replacement
Security”) or, where the Relevant Group Company is a surviving
entity, such distribution is made subject to the existing Transaction Security;


 


(ii)           in the case of Replacement Security, the
Agent confirms that:


 


(A)           the Replacement Security is in form and substance
satisfactory to it (acting reasonably); and


 


(B)           it has received advice from counsel in form and
substance reasonably satisfactory to it (subject to customary exceptions and
qualifications) confirming that the Replacement Security:


 


(1)           is valid, binding and enforceable and has
an equivalent or better ranking to the Transaction Security granted by the
Relevant Group Company;


 


(2)           secures an amount no less than that secured
by the Transaction Security granted by the Relevant Group Company; and


 


(3)           is not subject to (aa) any limitation or
imperfection in any material respect which the Transaction Security granted by
the Relevant Group Company was not subject to, or (bb) any new hardening
period, in each case in equity or at law; and


 


(iii)          in the case of a distribution subject to
existing Transaction Security, the Agent confirms that it has received advice from counsel in form and substance
reasonably satisfactory to it (subject to customary exceptions and
qualifications) confirming that:


 


(A)           such Transaction Security will
continue in full force and effect following the distribution or transfer and
its ranking and validity will not be impaired in any material respect as a
consequence of such distribution or transfer; and


 


(B)           such Transaction Security will
continue to secure an amount no less than that secured prior to the
distribution or transfer; or


 


(d)           with the prior consent of the Majority Lenders (such
consent not to be unreasonably withheld or delayed).


 


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22.11      Change of Business


 


The Obligors shall procure that the
business of the Group, taken as a whole, remains the Paper Business.


 


22.12      Insurance


 


Each Obligor shall procure that each
Group Company shall maintain levels of insurance in respect of its assets and
business in a manner and to an extent customary for businesses in the same or
substantially similar business and location as the Group.


 


22.13      Loans and Guarantees


 


(a)           No Obligor shall (and shall ensure that no other Group
Company will) make or permit to remain outstanding any loans or grant any
credit, other than:


 


(i)            any trade credit extended by any Group
Company to its customers on normal commercial terms and in the ordinary course
of trade;


 


(ii)           Financial Indebtedness which is referred to
in the definition of, or otherwise constitutes, Financial Indebtedness
permitted under Clause 22.9 (Financial Indebtedness)
(except under paragraph (a)(iv) thereof);


 


(iii)          a loan made or credit granted by:


 


(A)           an Obligor to another Obligor; or


 


(B)           a Group Company which is not an Obligor to
another Group Company;


 


(iv)           any loan made by an Obligor to a Group
Company which is not an Obligor and which is made after the date of this
Agreement, so long as the aggregate amount of the Financial Indebtedness under
any such loans does not, when aggregated with the aggregated amount of
Financial Indebtedness guaranteed by the guarantees permitted under paragraph
(b)(viii) below exceed Euro 20,000,000 (or its equivalent in any currency
or currencies) at any time;


 


(v)            a loan made by a Group Company to an
employee or director of any Group Company if the amount of that loan when
aggregated with the amount of all loans to employees and directors by Group
Companies does not exceed Euro 2,000,000 (or its equivalent in any currency or
currencies) at any time;


 


(vi)           any loan made to an employee share option
scheme or unit trust or management incentive scheme so long as the aggregate
amount of the Financial Indebtedness under any such loans does not, when
aggregated with the guarantees permitted under paragraph (b)(x) below
exceed Euro 5,000,000 (or its equivalent in any currency or currencies) at any
time;


 


(vii)          any loan made to an employee or director of
a Group Company or a Group Company to fund the purchase of shares, or any
obligation under a forward sale agreement, deferred purchase agreement or
deferred payment arrangement pursuant to an employee share option scheme, unit
trust or management incentive scheme;


 


(viii)         any loan made as part of a vendor
financing provided by any Group Company in connection with a share issue by the
Company in compliance 


 


81

















 


with the
black empowerment regulations, a Permitted Lereko Disposal or a Permitted SMF
Plantation Disposal, provided that the aggregate outstanding amount of all such
loans when aggregated with the amount of all obligations guaranteed by guarantees
referred to in paragraph (b)(xv) below does not exceed Euro 50,000,000 (or it equivalent in any currency or
currencies) at any time;


 


(ix)           any loan of the proceeds of the Bonds
made by PE Paper Escrow GmbH to Sappi Papier Holding GmbH;


 


(x)            any intra-group loans listed in Part II
of Schedule 9 (Existing Security, Guarantees and
Intercompany Loans) where the principal amount of such loan has not
been increased since the date of this Agreement unless expressly permitted by
the terms of this Agreement;


 


(xi)           any loan funded by the proceeds of
the Bonds by an Obligor to Sappi Trading Pulp AG on the signing Date provided
that the proceeds of such loan are applied in immediate repayment of amounts
outstanding under the Existing RCF Facility; and


 


(xii)          any loan (other than a loan made by a Group
Company to another Group Company) so long as the aggregate amount of the
Financial Indebtedness under any such loans when aggregated with the guarantees
permitted under paragraph (b)(xvii) below does not exceed Euro 25,000,000 (or
its equivalent in any currency or currencies) at any time.


 


(b)           No Obligor shall (and shall ensure that no other Group
Company will) incur or allow to remain outstanding any guarantee or indemnity
in respect of any obligation of any person, other than:


 


(i)            the endorsement of negotiable instruments
in the ordinary course of trade;


 


(ii)           any performance or similar bond
guaranteeing performance by a Group Company under any contract entered into in
the ordinary course of business;


 


(iii)          any guarantee in relation to indebtedness
permitted under Clause 22.9 (Financial Indebtedness);


 


(iv)           any guarantee given in respect of the
netting or set-off arrangements permitted under Clause 22.7 (Negative pledge);


 


(v)            contained in or granted pursuant to the Finance
Documents;


 


(vi)           any guarantees in place on the date of this
Agreement as set out in Part I of Schedule 9 (Existing
Security, Guarantees and Intercompany Loans) or any renewals or
replacements thereof provided that such renewals or replacements does not
result in an increase in the principal amount of Financial Indebtedness so
guaranteed and continues to relate to Financial Indebtedness outstanding on the
date of this Agreement;


 


(vii)          any guarantee issued by an Obligor in
respect of any obligation of another Obligor;


 


(viii)         any guarantee made by an Obligor to a
Group Company which is not an Obligor (and which is made after the date of this
Agreement) so long as the aggregate amount of the Financial Indebtedness
guaranteed by such 


 


82

















 


guarantee
does not, when aggregated with the loans permitted under paragraph (a)(iv) above
exceed Euro 20,000,000 (or its equivalent in any currency or currencies) at any
time;


 


(ix)           any guarantee issued by a Group Company which
is not an Obligor in respect of any obligation of another Group Company;


 


(x)            any guarantee granted to any trustee of any
employee share option or management incentive or unit trust scheme so long as
the aggregate amount of any obligations guaranteed by such guarantee does not,
when aggregated with the loans permitted under paragraph (a)(vi) above,
exceed Euro 5,000,000 (or its equivalent in any currency or currencies) at any
time;


 


(xi)           any guarantees of any obligations of a
Sappi Manufacturing Group Company so long as the aggregate amount of such
obligations guaranteed by such guarantees does not exceed Euro 25,000,000 (or
its equivalent in any currency or currencies) at any time;


 


(xii)          any counter-indemnity obligations in
respect of bills of exchange provided the aggregate principal amount of the
bills of exchange benefiting from such counter-indemnities does not exceed Euro
30,000,000 (or its equivalent in any currency or currencies) at any time;


 


(xiii)         any customary indemnity to a purchaser in
relation to a Disposal permitted pursuant to Clause 22.8 (Disposals),
provided that the maximum potential liability under such indemnity does not
exceed the aggregate consideration received by any Group Company for that
Disposal;


 


(xiv)         any guarantee granted by any entity
acquired by a Group Company pursuant to an acquisition permitted pursuant to
Clause 22.16 (Acquisitions and Joint Ventures)
if:


 


(A)           the principal amount guaranteed has not been increased
in contemplation of the acquisition of an entity by a Group Company; and


 


(B)           the guarantee is removed or discharged within three
months of the date of acquisition of such entity;


 


(xv)          any guarantee given as part of a
vendor financing provided by any Group Company in connection with a share issue
by the Company in compliance with the black empowerment regulations, a
Permitted Lereko Disposal or a Permitted SMF Plantation Disposal, provided that
the aggregate amount of all such obligations guaranteed by such guarantees when
aggregated with the outstanding amount of all loans referred to in paragraph
(a)(viii) above does not exceed Euro 50,000,000 (or its equivalent in any
currency or currencies) at any time;


 


(xvi)         any undertaking by Sappi Papier
Holding GmbH to inject capital into Sappisure Försökrings AB;


 


(xvii)        any guarantee granted pursuant to a
Required Accession;


 


(xviii)       guarantees granted in addition to those
permitted by sub-paragraphs (i) to (xvii) above, so long as the aggregate
amount of Financial Indebtedness guaranteed by such guarantee does not, when
aggregated with the loans 


 


83

















 


permitted under
paragraph (a)(xii) above exceed Euro 25,000,000 (or its equivalent in any
currency or currencies) at any time.


 


22.14      Intellectual Property


 


Each Obligor shall (and shall procure
that each Group Company will):


 


(a)           preserve and maintain the subsistence and validity of
the Intellectual Property necessary for the business of the relevant Group
Company;


 


(b)           use reasonable endeavours to prevent any infringement
in any material respect of the Intellectual Property required to conduct the
business of any relevant Group Company;


 


(c)           make registrations and pay all registration fees and
taxes necessary to maintain the Intellectual Property required to conduct the business
of any relevant Group Company in full force and effect and record its interest
in that Intellectual Property;


 


(d)           not use or permit the Intellectual Property required to
conduct the business of any relevant Group Company to be used in a way or take
any step or omit to take any step in respect of that Intellectual Property
which may materially and adversely affect the existence or value of that
Intellectual Property or imperil the right of any Group Company to use such
property; and


 


(e)           not discontinue the use of the Intellectual Property
required to conduct the business of any relevant Group Company,


 


where failure to do so, in the case
of paragraphs (a), (b) and (c) above, or, in the case of paragraphs (d) and
(e) above, such use, permission to use, omission or discontinuation, is
reasonably likely to have a Material Adverse Effect.


 


22.15      Pari passu ranking


 


Each Obligor shall ensure that its
payment obligations under the Finance Documents rank at least pari passu with
the claims of all its other secured creditors, including the other Senior
Creditors, except for obligations mandatorily preferred by law applying to
companies generally and for obligations secured by Security permitted under
Clause 22.7 (Negative pledge).


 


22.16      Acquisitions and Joint Ventures


 


No Obligor shall (and each Obligor
shall ensure that no Group Company will):


 


(a)           acquire a company or a business or undertaking
(excluding the incorporation of any new entity or the acquisition of a shelf
company or the acquisition by Sappi Papier Holding GmbH of PE Paper Escrow
GmbH); or


 


(b)           acquire any shares, stocks, securities or other
interests in any Joint Venture,


 


where the value of such acquisition
when aggregated with the value of all other such acquisitions (including, for
the avoidance of doubt, any share buy backs) made by a Group Company since the
date of this Agreement would exceed Euro 25,000,000 (or its equivalent in any
currency or currencies) at any time, other than an acquisition made pursuant to
a Permitted Lereko Disposal or a Permitted SMF Plantation Disposal.


 


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22.17      Hedging


 


No Obligor shall (and each Obligor
shall procure that no Group Company shall) enter into any Treasury Transaction
other than any interest, commodity or currency hedging arrangement entered into
in the ordinary course of business and not for speculative purposes.


 


22.18      Access and Investigations


 


If an Event of Default is continuing
each Obligor shall (and shall ensure that each Group Company will) permit the
Agent and/or accountants or other professional advisers and contractors of the
Agent free access at all reasonable times and on reasonable notice at the risk
and cost of the relevant Group Company to (a) the premises, assets, books,
accounts and records of each Group Company and (b) meet and discuss
matters with the senior management of the Group.


 


22.19      Guarantor Coverage Test


 


(a)           If at the end of each Quarter the aggregate of earnings
before interest, tax, depreciation and amortization (calculated on the same
basis as EBITDA, as defined in Clause 21 (Financial Covenants))
of Guarantors which are members of the Guarantor Coverage Group and the
aggregate gross assets of such Guarantors (in each case calculated on an
unconsolidated basis and excluding all intra-group items) does not represent 85
per cent. of EBITDA (as defined in Clause 21 (Financial
Covenants)) of the Guarantor Coverage Group and consolidated gross
assets of the Guarantor Coverage Group (the “Guarantor
Coverage Test”), the Company shall ensure that additional Group
Companies accede as Additional Guarantors in accordance with the provisions set
out in Clause 25.4 (Additional Guarantors)
to comply with the Guarantor Coverage Test.


 


(b)           For the purposes of paragraph (a), the Guarantor Coverage
Test, and for the purposes of paragraphs (d) and (e), the Additional
Companies Test, shall be determined by reference to the most recent financial
statements delivered pursuant to paragraph (c) of Clause 20.1 (Financial statements) and updated from time to time in each
Compliance Certificate.


 


(c)           The Company shall only be obliged to perform its
obligations under paragraph (a) above and paragraphs (d) and (e) below
if it is not unlawful for the relevant person to become a Guarantor and that
person becoming a Guarantor would not result in personal liability for that
person’s directors or other management. Each Obligor must use, and must procure
that the relevant person uses, all reasonable endeavours lawfully available to
avoid any such unlawfulness or personal liability. This includes agreeing to a
limit on the amount guaranteed in relation to the acceding person. The Agent
may (but shall not be obliged to) agree to such limit if, in its reasonable
opinion, to do so would avoid the relevant unlawfulness or personal liability.


 


(d)           If at the end of any Quarter:


 


(i)            the earnings before interest, tax,
depreciation and amortization (calculated on the same basis as EBITDA, as
defined in Clause 21 (Financial Covenants))
of any Excluded Subsidiary which is not a Guarantor represents 3 per cent. or
more of consolidated EBITDA (as defined in Clause 21 (Financial
Covenants)) of the Group (the “Group EBITDA”)
or


 


(ii)           the gross assets of any Excluded
Subsidiary which is not a Guarantor represent 3 per cent. or more of the gross
assets of the Group (the “Group Gross Assets”),


 


85

















 


the Company
shall ensure that such Excluded Subsidiary accedes as an Additional Guarantor
within 60 days of the end of that Quarter.


 


(e)           If at the end of any Quarter:


 


(i)            the aggregate earnings before
interest, tax, depreciation and amortization (calculated on the same basis as
EBITDA, as defined in Clause 21 (Financial Covenants))
of all the Excluded Subsidiaries which are not Guarantors (the “Excluded Subsidiaries EBITDA”) represent 8 per cent. or more
of the Group EBITDA; or


 


(ii)           the aggregate gross assets of all the
Excluded Subsidiaries which are not Guarantors (the “Excluded
Subsidiaries Gross Assets”) represent 8 per cent. or more of the
Group Gross Assets,


 


the Company
shall ensure that sufficient Excluded Subsidiaries accede as Additional
Guarantors within 60 days of the end of that Quarter to ensure that the
Excluded Subsidiaries EBITDA of the remaining Excluded Subsidiaries which are
not Guarantors represents less than 8 per cent. of the Group EBITDA and the
Excluded Subsidiaries Gross Assets of such Excluded Subsidiaries represents
less than 8 per cent. of the Group Gross Assets.


 


22.20      Ratings


 


The Company shall use reasonable endeavours
to ensure that it remains rated by either S&P or Moody’s.


 


22.21      Undertakings relating to Guarantee by
Austrian Guarantor


 


(a)           The Obligors shall procure that the shareholder(s) of
the Austrian Guarantors shall neither increase the stated share capital (Stammkapital) by way of capital increase from free reserves
(including a profit carry-forward) (Kapitalerhöhung aus
Gesellschaftsmitteln) nor increase any restricted reserves (gebundene Rücklagen) (unless required by Austrian law) but
shall pay any funds to be paid to an Austrian Guarantor into the free reserves
(ungebundene Rücklagen) of that Austrian
Guarantor. Further, the Obligors shall procure that the shareholders of an
Austrian Guarantor shall exercise their shareholder rights in such way that the
Austrian Guarantor covers any possible balance sheet loss (Bilanzverlust)
by dissolving restricted reserves (gebundene Rücklagen)
rather than free reserves (ungebundene Rücklagen)
to the extent possible pursuant to Austrian law and each Austrian Guarantor
shall abide by such requirement when preparing its financial statements.


 


(b)           The Obligors (other than the Austrian Guarantors)
undertake, subject to Clause 18.8 (Deferral of Guarantors’
Rights), to reimburse the relevant Austrian Guarantor for any payments
made by that Austrian Guarantor upon demand from a Finance Party or any other
payment made in connection with the guarantee given by that Austrian Guarantor
under Clause 18 (Guarantee and indemnity),
immediately upon that Austrian Guarantor’s first written demand.


 


22.22      Dividend restriction


 


The Company shall not declare or pay
any dividends (other than scrip or non cash dividends by way of a distribution
of equity interests of the Company) where:


 


(a)           an Event of Default has occurred and is continuing;


 


86

















 


(b)           the aggregate amount of such dividends would exceed 50
per cent. of the net aggregate profits of the Group (after adjusting for the
tax effect of Special Items); or


 


(c)           the ratio of Net Debt to EBITDA as referred to in
paragraph (b) of Clause 21.1 (Financial covenants)
calculated on a pro-forma basis specified in the latest Compliance Certificate
supplied pursuant to Clause 20.2 (Compliance Certificate)
exceeds 4 to 1.


 


22.23      Arm’s length terms


 


No Obligor shall enter into any
transaction with (i) a shareholder of the Company or (ii) a Group
Company which is not an Obligor, unless the terms of such transaction are no
less favourable to the relevant Obligor than those that could be obtained at
the time of the transaction in arm’s-length dealings for fair market value with
a person who is not a shareholder of the Company or a Group Company,
respectively.


 


22.24      Preservation of assets


 


Each Obligor shall (and the Company
shall ensure that each Group Company will) maintain in good working order and
condition (ordinary wear and tear excepted) all of its assets which are subject
to the Transaction Security.


 


22.25      Further assurance


 


(a)           Each Obligor shall (and the Company shall procure that
each Group Company will) promptly do all such acts or execute all such
documents (including assignments, transfers, mortgages, charges, notices and
instructions) as the Security Agent may reasonably specify (and in such form as
the Security Agent may reasonably require in favour of the Security Agent or
its nominee(s)) to perfect the Security created or intended to be created under
or evidenced by the Transaction Security Documents (which may include the
execution of a mortgage, charge, assignment or other Security over all or any
of the assets which are, or are intended to be, the subject of the Transaction
Security) or for the exercise of any rights, powers and remedies of the
Security Agent or the Finance Parties provided by or pursuant to the Finance
Documents or by law;


 


(b)           Each Obligor shall (and the Company shall procure that
each Group Company shall) take all such action as is available to it (including
making all filings and registrations) as may be necessary for the purpose of
the creation, perfection, protection or maintenance of any Security conferred
or intended to be conferred on the Security Agent or the Finance Parties by or
pursuant to the Finance Documents.


 


22.26      Limitations in relation to German Obligors


 


(a)           Clause 22.7 (Negative
pledge), 22.8 (Disposals),
22.10 (Merger), 22.11 (Change of
Business), 22.16 (Acquisitions and Joint
Ventures), 22.22 (Dividend restrictions)
(the “Relevant Restrictive Undertakings”)
shall not apply to any Obligor incorporated in Germany (a “German
Obligor”) or any of its subsidiaries from time to time which is
incorporated in Germany (a “German Group Member”).


 


(b)           The Company shall give the Agent no
less than thirty (30) Business Days’ prior written notice of the intention of
it or of any German Group Member to carry out any of the acts or take any of
the steps which would not be permitted were the Relevant Restrictive
Undertaking applicable (but for this Clause 22.26) explaining if and how such
steps might affect the financial situation of the Company or the Group, or the
Finance Parties’ risk and security position.


 


87

















 


(c)           The Agent shall be entitled within
twenty (20) Business Days of receipt of the Company’s notice under paragraph (b) above
to request the relevant member of the German Group to supply to the Agent in
sufficient copies for the Lenders if reasonably requested any further relevant
information in connection with the proposed action or steps referred to in such
notice.


 


(d)           The Agent shall notify the Company
within twenty (20) Business Days of receipt of the Company’s notice under
paragraph (b) above or if additional information has been requested by the
Agent within the prescribed time, within twenty (20) Business Days of receipt
of such information, whether the proposed action or steps under paragraph (b) above
is or is, in the reasonable opinion of the Agent, acting on the instructions of
the Majority Lenders, likely to have a material adverse consequences for the
Finance Parties risk or security position.


 


(e)           If the proposed action or step under
paragraph (b) above is considered by the Agent (acting in accordance with
paragraph (d) above) to have a material adverse consequences for the
Finance Parties risk or security position and the relevant member of the Group incorporated
in Germany nevertheless takes such action or steps under paragraph (b) above,
the Agent shall be entitled to make (and, if so instructed by the Majority
Lenders shall make) the declaration, request and/or instruction set out in
Clause 23.17 (Acceleration).


 


22.27      Conditions subsequent


 


The Company
shall procure that within ten (10) Business Days of the Signing Date the
following is completed in respect of the asset pledge agreements granted by
Sappi MagnoStar GmbH and Sappi Austria Produktions-GmbH & Co. KG:


 


(A)           notification of Sappi Austria Produktions-GmbH & Co. KG of the
pledge over the assets pledged by Sappi MagnoStar GmbH;


 


(B)           the affixing of metal plates by Sappi MagnoStar GmbH on the assets
pledged by Sappi MagnoStar GmbH; and


 


(C)          the affixing of metal plates by Sappi Austria Produktions-GmbH &
Co. KG on the assets pledged by Sappi Austria Produktions-GmbH & Co.
KG.


 


23.          EVENTS OF DEFAULT


 


Each of the events or circumstances
set out in Clauses 23.1 to 23.16 inclusive is an Event of Default.


 


23.1        Non-payment


 


An Obligor does not pay on the due
date any amount payable pursuant to a Finance Document at the place at and in
the currency in which it is expressed to be payable unless:


 


(a)           its failure to pay is caused by:


 


(i)            administrative or technical error; or


 


(ii)           a Disruption Event; and


 


(b)           payment is made within:


 


(i)            (in the case of (a)(i) above) three
Business Days of its due date; or


 


88














 


(ii)                                  (in
the case of (a)(ii) above) five Business Days of its due date.


 


23.2                        Financial
covenants and other obligations


 


(a)                                 Any
requirement of Clause 21 (Financial Covenants),
Clause 20.1 (Financial statements) or Clause
20.2 (Compliance Certificate) is not
satisfied.


 


(b)                                 A
German Obligor or a German Group Member does not comply with a Relevant Restrictive
Undertaking after the Agent has confirmed, within the periods set out in Clause
22.26 (Limitations in relation to German Obligors),
that it considers the relevant action or step to have material adverse
consequences for the Lenders’ risk or security position.


 


23.3                        Other
obligations


 


An Obligor or Non-Obligor Chargor does
not comply with any provision of the Finance Documents (other than those
referred to in Clause 23.1 (Non-payment)
and Clause 23.2 (Financial covenants and other obligations)
(above) and, if the failure to comply is capable of remedy, it is not remedied
within 10 Business Days of the earlier of (i) the Agent giving notice to
the Company of, and (ii) the Company or the relevant Obligor or
Non-Obligor Chargor becoming aware of, the failure to comply.


 


23.4                        Misrepresentation


 


Any representation or statement made or
deemed to be made by an Obligor or Non-Obligor Chargor in the Finance Documents
or any other document delivered by or on behalf of any Obligor or Non-Obligor
Chargor under or in connection with any Finance Document is or proves to have
been incorrect or misleading in any respect when made or deemed to be made and
where the circumstances making such representation or statement incorrect or
misleading are capable of being altered so that such representation or
statement is correct or no longer misleading, such circumstances are not so
altered within 10 Business Days of the earlier of (i) the Agent giving
notice to the Company and (ii) the Company or the relevant Obligor or
Non-Obligor Chargor becoming aware of such representation or statement being
incorrect or misleading.


 


23.5                        Cross
default


 


(a)                                 Any
Financial Indebtedness of any Group Company is not paid when due and payable
nor within any applicable grace period.


 


(b)                                 Any
Financial Indebtedness of any Group Company is declared to be or otherwise
becomes due and payable prior to its specified maturity as a result of a
default or an event of default (however described).


 


(c)                                  Any
creditor of any Group Company becomes entitled to declare any Financial
Indebtedness of any Group Company due and payable prior to its specified
maturity as a result of a default or an event of default (however described).


 


(d)                                 No
Event of Default will occur under this Clause 23.5 if the aggregate amount of
Financial Indebtedness or commitment for Financial Indebtedness falling within
paragraphs (a) to (c) above is less than Euro 10,000,000.


 


23.6                        Insolvency


 


(a)                                 An
Obligor, Sappi Manufacturing or a Non-Obligor Chargor (other than Sappi Austria
Vertriebs-GmbH & Co. KG) is unable or admits inability to pay its
debts as 


 


89

















 


they fall due, suspends making payments on any of its debts
or commences negotiations with one or more of its creditors with a view to
rescheduling any class of its indebtedness.


 


(b)                                 A
moratorium is declared in respect of any class of indebtedness of an Obligor,
Sappi Manufacturing or a Non-Obligor Chargor (other than Sappi Austria
Vertriebs-GmbH & Co. KG).


 


(c)                                  An
Austrian Obligor or a Non-Obligor Chargor incorporated in Austria (other than
Sappi Austria Vertriebs-GmbH & Co. KG) is declared (or declares
itself) bankrupt, is in a situation of illiquidity (Zahlungsunfähigkeit),
within the meaning of § 66 of the KO, as interpreted by Austrian courts, or
over indebtedness (Überschuldung),
within the meaning of § 67 of the KO, as interpreted by Austrian courts, is
presumably unable to pay its debts as they fall due (drohende
Zahlungsunfähigkeit), within the meaning of § 1 (1) of the AO,
as interpreted by Austrian courts or the preconditions for the opening of
reorganisation proceedings (Reorganisationsbedarf)
under the URG, as set out in the URG and interpreted by Austrian courts, have
been satisfied in respect of the Austrian Guarantor or relevant Non-Obligor
Chargor (save for any solvent reorganisation previously approved by the
Majority Lenders in writing, such approval not to be unreasonably withheld).


 


(d)                                 Without
limitation to paragraphs (a) and (b) above, in relation to a German
Guarantor or a Non-Obligor Chargor incorporated in Germany, the following
events occur:


 


(i)                                     it
is unable to pay its debts as they fall due (zahlungsunfähig)
within the meaning of section 17 of the German Insolvency Code (Insolvenzordnung) or is subject to imminent illiquidity (drohende Zahlungsfähigkeit) within the meaning of Section 18
of the German Insolvency Code (Insolvenzordnung);


 


(ii)                                  it
is over-indebted (Überschuldung) within the meaning
of section 19 of the German Insolvency Code (Insolvenzordnung).


 


23.7                        Insolvency
proceedings


 


(a)                                 Any
legal proceeding or other formal procedure is taken or applied for or a meeting
is convened for the purpose of considering a resolution in relation to:


 


(i)                                     the
bankruptcy, the suspension of payments, winding-up, dissolution, liquidation,
annulment as a legal entity, administration or reorganisation (by way of
voluntary arrangement, scheme of arrangement or otherwise) of an Obligor, Sappi
Manufacturing or a Non-Obligor Chargor (other  than Sappi Austria Vertriebs-GmbH & Co. KG), other
than a solvent liquidation or reorganisation of any Obligor or Sappi
Manufacturing permitted under Clause 22.10 (Merger);


 


(ii)                                  a
general composition, assignment or arrangement with the creditors generally of
an Obligor, Sappi Manufacturing or a Non-Obligor Chargor (other than Sappi
Austria Vertriebs-GmbH & Co. KG) relating to a general rescheduling of
its financial indebtedness;


 


(iii)                               the
appointment of a liquidator (other than in respect of a winding up petition
which is frivolous or vexatious and which is, in any event, discharged within
30 days of its presentation or in respect of a solvent liquidation or
reorganisation of an Obligor or Sappi Manufacturing permitted under Clause
22.10 (Merger)), receiver, administrator,
administrative receiver, compulsory manager, an a
voorlopige bewindvoerder / administrateur provisoire, a 


 


90

















 


ondernemingsbemiddelaar / médiateur d’entreprise,
a gerechtsmandataris / mandataire de justice, a gedelegeerd rechter / juge
délégué, a sekwester / séquestre, Insolvenzverwalter or vorläufiger Insolvenzverwalter  or other similar officer in respect of an Obligor, Sappi
Manufacturing or a Non-Obligor Chargor (other than Sappi Austria Vertriebs-GmbH &
Co. KG) or all or any part (having an aggregate value of at least Euro
10,000,000) of its assets; or


 


(iv)                                enforcement
of any Security over all or substantially all of the assets of an Obligor,
Sappi Manufacturing or a Non-Obligor Chargor (other than Sappi Austria
Vertriebs-GmbH & Co. KG) which is not discharged within 30 days of the
relevant legal proceeding or formal procedure being taken; or


 


(b)                                 any
analogous procedure or step is taken in any jurisdiction including, without
limitation, if an Austrian Obligor or a Non-Obligor Chargor incorporated in
Austria (other than Sappi Austria Vertriebs-GmbH & Co. KG) is subject
to:


 


(i)                                     any
bankruptcy proceedings (Konkursverfahren)
commenced pursuant to the KO, unless the application for such proceedings is
dismissed within 30 days from (but excluding) the day it is filed (unless
dismissed on the ground that the costs of the bankruptcy proceedings were
likely to exceed the assets of such person (Abweisung mangels
kostendeckenden Vermögens)); or


 


(ii)                                  any
composition proceedings (Ausgleichsverfahren)
commenced pursuant to the AO; or


 


(iii)                               any
reorganisation proceedings (Reorganisationsverfahren)
under the URG (save for any solvent reorganisation previously approved by the
Majority Lenders in writing, such approval not to be unreasonably withheld),


 


unless,
in relation to sub-paragraphs (ii) and (iii) above, the opening of
the relevant proceedings is the only action that has occurred; or


 


(c)                                  with
respect to any German Guarantor or a Non-Obligor Chargor incorporated in
Germany:


 


(i)                                     a
petition for insolvency proceedings in respect of its assets (Antrag auf Eröffnung eines Insolvenzverfahrens) is filed or
threatened to be filed (other than threats or filings that the Agent (acting
reasonably) is satisfied are frivolous or vexatious);


 


(ii)                                  any
event occurs which constitutes a cause for the initiation of insolvency
proceedings (Eröffnungsgrund) as set forth in Section 17
et seq. of the German Insolvency Code (Insolvenzordnung)
including such Obligor or Non-Obligor Chargor incorporated in Germany being
unable or admitting to being unable to honour its obligations as they fall due
(Zahlungsunfähigkeit) or becoming over indebted (Überschuldung)
or being imminently illiquid (drohende Zahlungsfähigkeit);


 


(iii)                               the
commencing of negotiations with one or more of its creditors with a view to the
general readjustment or rescheduling of its indebtedness;


 


(iv)                                an
insolvency court taking steps as set out in Section 21 of the German
Insolvency Code (Insolvenzordnung); or


 


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(v)                                   a
court order for commencement of insolvency proceedings
(Insolvenzeröffnungsbeschluss) or for rejection of insolvency proceedings due
to lack of funds (Abweisungsbeschluss mangels Masse)
is made,


 


23.8                        Creditors’
process


 


Expropriation, attachment,
sequestration, distress or execution affects any asset or assets of Group
Companies having an aggregate value of at least Euro 10,000,000 and is not
discharged within 21 days.


 


23.9                        Obligor
ceasing to be a Subsidiary of the Company


 


(a)                                 After
the date of this Agreement, an Obligor (other than the Company) ceases to be a
wholly owned Subsidiary of the Company.


 


(b)                                 An
Obligor ceases to own at least the same percentage of shares in a Material
Subsidiary as on the date of this Agreement.


 


(c)                                  No
Event of Default will occur under this Clause 23.9 if any of the events
described in (a) or (b) above are a result of a Disposal which is
expressly permitted pursuant to the terms of this Agreement.


 


23.10                 Unlawfulness


 


(a)                                 It
is or becomes unlawful for an Obligor or a Non-Obligor Chargor to perform any
of its obligations under any Finance Document or, subject to the Reservations,
any Transaction Security created or expressed to be created or evidenced by the
Transaction Security Documents ceases to be effective or any subordination
under the Intercreditor Agreement becomes unlawful.


 


(b)                                 Subject
to the Reservations, any obligation of any Obligor or Non-Obligor Chargor under
any Finance Document is not or ceases to be legal, valid, binding and
enforceable and the cessation materially adversely affects the interests of the
Lenders taken as a whole under the Finance Documents.


 


23.11                 Repudiation


 


An Obligor or Non-Obligor Chargor
rescinds, repudiates or evidences an intention to rescind or repudiate a
Finance Document or any of the Transaction Security.


 


23.12                 Material
adverse change


 


Any event or circumstance occurs which
has or is reasonably likely to have a Material Adverse Effect.


 


23.13                 Litigation
adversely determined


 


Any litigation, arbitration, or
administrative proceedings of or before any court, arbitral body or agency are
commenced or formally threatened in writing against any Group Company or its
assets which are reasonably likely to be adversely determined against that
Group Company and if so determined, have, or are reasonably likely to have, a
Material Adverse Effect.


 


23.14                 Cessation
of business


 


An Obligor or any Material Subsidiary
ceases to carry on all or a substantial part of its business (other than as a
result of a solvent liquidation or reorganisation of any Obligor or 


 


92

















 


Material Subsidiary permitted under
Clause 22.10 (Merger) or any Disposal permitted
under Clause 22.8 (Disposals)) and
such cessation would result in the Group, as a whole, ceasing to carry on the
Paper Business.


 


23.15                 Audit
qualification


 


The auditors of the Company or Sappi
Papier Holding GmbH qualify the audited annual financial statements of the
Company or Sappi Papier Holding GmbH in terms of or in respect of issues which
would or could reasonably be expected to be materially adverse to the interests
of the Finance Parties under the Finance Documents.


 


23.16                 Intercreditor
Agreement


 


(a)                                 Any
party to the Intercreditor Agreement (other than a Finance Party or an Obligor)
fails to comply with the provisions of, or does not perform its obligations
under, the Intercreditor Agreement and such failure to comply or
non-performance would or could reasonably be expected to be materially adverse
to the interests of the Finance Parties under the Finance Documents; or


 


(b)                                 a
representation or warranty given by that party in the Intercreditor Agreement
is incorrect in any material respect,


 


and, if the non-compliance or
circumstances giving rise to the misrepresentation are capable of remedy, it is
not remedied within 10 Business Days of the earlier of the Agent giving notice
to that party or that party becoming aware of the non-compliance or misrepresentation.


 


23.17                 Acceleration


 


On and at any time after the occurrence
of an Event of Default which is continuing the Agent may, and shall if so
directed by the Majority Lenders, by notice to the Company:


 


(a)                                 cancel
the Total Commitments whereupon they shall immediately be cancelled; and/or


 


(b)                                 declare
that all or part of the Loans, together with accrued interest, and all other
amounts accrued under the Finance Documents be immediately due and payable,
whereupon they shall become immediately due and payable.


 


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SECTION 9



CHANGES TO PARTIES


 


24.                               CHANGES TO THE LENDERS


 


24.1                        Assignments
and transfers by the Lenders


 


Subject to this Clause 24, a Lender
(the “Existing Lender”) may:


 


(a)                                 assign
any of its rights;


 


(b)                                 transfer
any of its rights and obligations; or


 


(c)                                  enter
into a sub-participation or similar agreement in relation to this Agreement,


 


to another bank or financial
institution (the “New Lender”).


 


24.2                        Conditions
of assignment or transfer


 


(a)                                 An
assignment or transfer of a Lender’s Commitments shall be notified to the
Company no later than five (5) Business Days prior to the date of such
assignment or transfer.


 


(b)                                 No
such notification as prescribed in paragraph (a) above shall be required
in relation to any assignment or transfer of a Lender’s Commitment:


 


(i)                                     to
another Lender or an Affiliate of a Lender; or


 


(ii)                                  at a
time when an Event of Default is continuing.


 


(c)                                  An
assignment or transfer by a Lender of its Commitments under the Facility may be
in whole or in part, but if in part shall be in minimum Base Currency Amounts
of Euro 5,000,000.


 


(d)                                 An
assignment will only be effective on:


 


(i)                                     receipt
by the Agent of written confirmation from the New Lender (in form and substance
satisfactory to the Agent) that the New Lender will assume the same obligations
to the other Finance Parties as it would have been under if it was an Original
Lender;


 


(ii)                                  the
New Lender entering into the documentation required for it to accede as a party
to the Intercreditor Agreement; and


 


(iii)                               performance
by the Agent of all “know your customer” or other checks relating to any person
that it is required to carry out in relation to such assignment to a New
Lender, the completion of which the Agent shall promptly notify to the Existing
Lender and the New Lender.


 


(e)                                 A
transfer will only be effective if the New Lender enters into the documentation
required for it to accede as a party to the Intercreditor Agreement and if the
procedure set out in Clause 24.5 (Procedure for transfer)
is complied with.


 


(f)                                     If:


 


94

















 


(i)                                     a
Lender assigns or transfers any of its rights or obligations under the Finance
Documents or changes its Facility Office; and


 


(ii)                                  as a
result of circumstances existing at the date the assignment, transfer or change
occurs, an Obligor would be obliged to make a payment to the New Lender or
Lender acting through its new Facility Office under Clause 13 (Tax gross-up and indemnities) or Clause 14 (Increased Costs),


 


then the New Lender or Lender acting
through its new Facility Office is only entitled to receive payment under those
Clauses to the same extent as the Existing Lender or Lender acting through its
previous Facility Office would have been if the assignment, transfer or change
had not occurred.


 


24.3                        Assignment
and Transfer Fee


 


Unless the Agent otherwise agrees and
excluding an assignment or transfer to an Affiliate of a Lender or made in
connection with primary syndication of the Facilities (unless such Affiliate
would, following assignment or transfer, constitute an Austrian Lender or an
Austrian Lender would become a Lender in connection with primary syndication of
the Facilities), the New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Agent (for its own account) the Assignment and
Transfer Fee.


 


24.4                        Limitation
of responsibility of Existing Lenders


 


(a)                                 Unless expressly agreed to the
contrary, an Existing Lender makes no representation or warranty and assumes no
responsibility to a New Lender for:


 


(i)                                     the
legality, validity, effectiveness, adequacy or enforceability of the Finance
Documents or any other documents;


 


(ii)                                  the
financial condition of any Obligor or other person;


 


(iii)                               the
performance and observance by any Obligor or other person of its obligations
under the Finance Documents or any other documents; or


 


(iv)                                the
accuracy of any statements (whether written or oral) made in or in connection
with any Finance Document or any other document,


 


and
any representations or warranties implied by law are excluded.


 


(b)                                 Each
New Lender confirms to the Existing Lender and the other Finance Parties that
it:


 


(i)                                     has
made (and shall continue to make) its own independent investigation and
assessment of the financial condition and affairs of each Obligor and its
related entities in connection with its participation in this Agreement and has
not relied exclusively on any information provided to it by the Existing Lender
or any other Finance Party in connection with any Finance Document; and


 


(ii)                                  will
continue to make its own independent appraisal of the creditworthiness of each
Obligor and its related entities and any other person whilst any amount is or
may be outstanding under the Finance Documents or any Commitment is in force.


 


(c)                                  Nothing
in any Finance Document obliges an Existing Lender to:


 


95

















 


(i)                                     accept
a re-transfer from a New Lender of any of the rights and obligations assigned
or transferred under this Clause 24; or


 


(ii)                                  support
any losses directly or indirectly incurred by the New Lender by reason of the
non-performance by any Obligor or other person of their obligations under the
Finance Documents or otherwise.


 


24.5                        Procedure
for transfer


 


(a)                                 Subject
to the conditions set out in Clause 24.2 (Conditions of assignment
or transfer) a transfer is effected in accordance with paragraph (c) below
when (i) in the case of any New Lender which is not an Austrian Lender,
the Agent executes an otherwise duly completed Transfer Certificate delivered
to it by the Existing Lender and the New Lender or (ii) in the case of any
New Lender which is an Austrian Lender, the Agent receives (x) a duly
completed Austrian Transfer Certificate delivered to it by the Existing Lender
and (y) the Assignment and Transfer Fee. In the case of any New Lender
which is not an Austrian Lender, the Agent shall, subject to paragraph (b) below,
within 5 Business Days after receipt by it of a duly completed Transfer
Certificate appearing on its face to comply with the terms of this Agreement
and delivered in accordance with the terms of this Agreement, execute that
Transfer Certificate and hold it in accordance with Clause 26.17 (Agent to hold original documents).


 


(b)                                 The
Agent shall only be obliged to execute a Transfer Certificate or accept an
Austrian Transfer Certificate, as the case may be, delivered to it by the
Existing Lender and the New Lender once it is satisfied it has complied with
all necessary “know your customer” or other similar checks under all applicable
laws and regulations in relation to the transfer to such New Lender.


 


(c)                                  On
the Transfer Date:


 


(i)                                     to
the extent that in the Transfer Certificate and the Austrian Transfer
Certificate, as the case may be, the Existing Lender seeks to transfer its
rights and obligations under the Finance Documents each of the Obligors and
that Existing Lender shall be released from further obligations towards one
another under the Finance Documents and their respective rights against one another
shall be cancelled (being the “Discharged Rights and
Obligations”);


 


(ii)                                  each
of the Obligors and the New Lender shall assume obligations towards one another
and/or acquire rights against one another which differ from the Discharged
Rights and Obligations only insofar as that Obligor and the New Lender have
assumed and/or acquired the same in place of that Obligor and the Existing
Lender;


 


(iii)                               the
Agent, the Mandated Lead Arrangers and the other Lenders shall acquire the same
rights and assume the same obligations between themselves as they would have
acquired and assumed had the New Lender been an Original Lender with the rights
and/or obligations acquired or assumed by it as a result of the transfer and to
that extent the Agent, the Mandated Lead Arrangers and the Existing Lender
shall each be released from further obligations to each other under this
Agreement;


 


(iv)                                the
benefit of the Transaction Security shall be maintained in favour of the New
Lender through the Security Agent; and


 


96

















 


(v)                                   the
New Lender shall become a Party as a “Lender”.


 


(d)                                 For
the purposes of Article 1271 et seq of the Belgian Civil Code, the Parties
agree that upon any novation under the Finance Documents, the Transaction Security,
guarantees, indemnities and other undertakings created by the Finance Documents
shall continue for the benefit of the Finance Parties, their successors,
transferees and assignees, as the case may be.


 


24.6                        Security
over Lenders’ rights


 


In addition to the other rights
provided to Lenders under this Clause 24, each Lender may without consulting
with or obtaining consent from any Obligor, at any time charge, assign by way
of security or otherwise create Security in or over (whether by way of
collateral or otherwise) all or any of its rights under any Finance Document to
secure obligations of that Lender including, without limitation:


 


(a)                                 any
charge, assignment by way of security or other Security to secure obligations
to a federal reserve or central bank; and


 


(b)                                 in
the case of any Lender which is a fund, any charge, assignment by way of
security or other Security granted to any holders (or trustee or
representatives of holders) of obligations owed, or securities issued, by that
Lender as security for those obligations or securities,


 


except that no such charge, assignment
by way of security or Security shall:


 


(i)                                     release
a Lender from any of its obligations under the Finance Documents or substitute
the beneficiary of the relevant charge, assignment by way of Security or
Security for the Lender as a party to any of the Finance Documents; or


 


(ii)                                  require
any payments to be made by an Obligor or grant to any person any more extensive
rights than those required to be made or granted to the relevant Lender under
the Finance Documents.


 


24.7                        Pro
rata interest settlement


 


If the Agent has notified the Lenders
that it is able to distribute interest payments on a “pro rata basis” to
Existing Lenders and New Lenders then (in respect of any transfer pursuant to
Clause 24.5 (Procedure for transfer) the
Transfer Date of which, in each case, is after the date of such notification
and is not on the last day of an Interest Period):


 


(a)                                 on
the relevant Transfer Date, any interest or fees accrued in respect of the
relevant participation up to but excluding that Transfer Date and which are
expressed to accrue by reference to the lapse of time (“Accrued
Amounts”) shall become due and payable to the Existing Lender on
that Transfer Date, but payment of the Accrued Amounts shall be deferred
(without further interest accruing on them) until the last day of the current
Interest Period (or, if the Interest Period is longer than three Months, on the
next of the dates which falls at three Monthly intervals after the first day of
that Interest Period); and


 


(b)                                 the
rights assigned or transferred by the Existing Lender will not include the
right to the Accrued Amounts (so that, for the avoidance of doubt, when the
Accrued Amounts become payable, those Accrued Amounts will be payable for the
account of the Existing Lender, and Clauses 13 (Tax Gross-up
and Indemnities) and 14 (Increased Costs)
shall apply in relation to a payment of Accrued Amounts as if the Existing
Lender were a Lender at the date of the payment).


 


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24.8                        Copy
of Transfer Certificate and Austrian Transfer Certificate


 


The Agent shall, as soon as
reasonably practicable after it has accepted and executed a Transfer
Certificate or received an Austrian Transfer Certificate and the Assignment and
Transfer Fee (as the case may be), send to the Company a copy of such Transfer
Certificate or Austrian Transfer Certificate (as the case may be).  Each Borrower confirms that such delivery of
Transfer Certificate or Austrian Transfer Certificate (as the case may be) to
SISA shall be considered as a notification of transfer or assignment towards
itself.


 


25.                               CHANGES TO THE OBLIGORS


 


25.1                        Assignments
and transfer by Obligors


 


No Obligor may assign any of its rights
or transfer any of its rights or obligations under the Finance Documents.


 


25.2                        Additional
Borrowers


 


(a)                                 Subject
to compliance with the provisions of paragraphs (a) and (b) of Clause
20.7 (“Know your customer” checks), the
Company may request that any of its wholly owned Subsidiaries becomes an
Additional Borrower.  Such Subsidiary
shall become an Additional Borrower if:


 


(i)                                     all
the Lenders approve the addition of that Subsidiary;


 


(ii)                                  the
Company delivers to the Agent a duly completed and executed Accession Letter;


 


(iii)                               the
Company confirms that no Default is continuing or would occur as a result of
that Subsidiary becoming an Additional Borrower;


 


(iv)                                no
Tax Deduction will be required to be made in respect of any payment to any
Lender by an Additional Borrower nor will any Lender suffer any loss, liability
or cost for or on account of Tax for which it would be indemnified pursuant to
Clause 13.3 (Tax indemnity) in
connection with such Additional Borrower;


 


(v)                                   the
Agent has received all of the documents and other evidence listed in Part II
of Schedule 2 (Conditions Precedent Required
to be delivered by an Additional Obligor) in relation to that
Additional Borrower, each in form and substance satisfactory to the Agent; and


 


(vi)                                the
Additional Borrower shall accede to the Intercreditor Agreement.


 


(b)                                 The
Agent shall notify the Company and the Lenders promptly upon being satisfied
that it has received (in form and substance satisfactory to it) all the
documents and other evidence listed in Part II of Schedule 2 (Conditions Precedent Required to be delivered by an
Additional Obligor).


 


25.3                        Resignation
of a Borrower


 


(a)                                 In
this Clause 25.3, Clause 25.6 (Resignation
of a Guarantor) and Clause 25.7 (Release of security on disposal), “Third Party Disposal” means the disposal of
an Obligor to a person which is not a Group Company where that disposal is
permitted under Clause 22.8 (Disposals)
(and the Company has confirmed this is the case).


 


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(b)                                 The
Company may request that a Borrower ceases to be a Borrower by delivering to
the Agent a Resignation Letter.


 


(c)                                  The
Agent shall accept a Resignation Letter and notify the Company and the Lenders
of its acceptance if:


 


(i)                                     no
Default is continuing or would result from the acceptance of the Resignation
Letter (and the Company has confirmed this is the case);


 


(ii)                                  the
Borrower is under no actual or contingent obligations as a Borrower under any
Finance Documents;


 


(iii)                               where
the Borrower is also a Guarantor (unless its resignation has been accepted in
accordance with Clause 25.6 (Resignation of
a Guarantor)), its obligations in its capacity as Guarantor continue
to be legal, valid, binding and enforceable and in full force and effect
(subject to the Reservations) and the amount guaranteed by it as a Guarantor is
not decreased (and the Company has confirmed this is the case); and


 


(iv)                                the
Company has confirmed that where the Borrower is subject to a Third Party
Disposal, it shall ensure that any relevant Disposal Proceeds will be applied
in accordance with Clause 8.4 (Disposal
Proceeds),


 


whereupon, upon such notification, that
company shall cease to be a Borrower and shall have no further rights or
obligations as a Borrower under the Finance Documents except, where there has
been a Third Party Disposal, the resignations shall not take effect (and the
Borrower will continue to have rights and obligations under the Finance
Documents) until the date on which the Third Party Disposal takes effect.


 


(d)                                 The
Agent may, at the cost and expense of the Company, require advice from counsel
(in the form of an opinion or otherwise) to the Agent confirming the matters
set out in paragraph (c)(iii) above and the Agent shall be under no
obligation to accept a Resignation Letter until it has obtained such advice or
opinion in form and substance satisfactory to it.


 


25.4                        Additional
Guarantors


 


(a)                                 Subject
to compliance with the provisions of paragraphs (a) and (b) of Clause
20.7 (“Know your customer” checks), the Company
may request that any of its wholly owned Subsidiaries become an Additional
Guarantor.  The Company shall procure
that any other member of the Guarantor Coverage Group which is a Material
Subsidiary and any Excluded Subsidiary which is required to accede as an
Additional Guarantor pursuant to the Additional Companies Test shall as soon as
possible after becoming a Material Subsidiary or being so required, as the case
may be, become an Additional Guarantor and shall accede to the Intercreditor
Agreement.  A member of the Group shall
become an Additional Guarantor if:


 


(i)                                     the
Company delivers to the Agent a duly completed and executed Accession Letter;
and


 


(ii)                                  the
Agent has received all of the documents and other evidence listed in Part II
of Schedule 2 (Conditions Precedent Required
to be delivered by an Additional Obligor) in relation to that
Additional Guarantor, each in form and substance satisfactory to the Agent.


 


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(b)                                 The
Agent shall notify the Company and the Lenders promptly upon being satisfied
that it has received (in form and substance satisfactory to it) all the
documents and other evidence listed in Part II of Schedule 2 (Conditions Precedent Required to be delivered by an
Additional Obligor).


 


25.5                        Repetition
of Representations


 


Delivery
of an Accession Letter constitutes confirmation by the relevant Subsidiary that
the Repeating Representations and each of the representations set out in
Clauses 19.5 (Validity and admissibility in
evidence) and 19.8 (No filing or
stamp taxes) are true and correct in relation to it as at the date
of delivery as if made by reference to the facts and circumstances then
existing.


 


25.6                        Resignation
of a Guarantor


 


(a)                                 If a
Guarantor is subject to a Third Party Disposal, the Company may request that a
Guarantor ceases to be a Guarantor by delivering to the Agent a Resignation
Letter.


 


(b)                                 The
Agent shall accept a Resignation Letter and notify the Company and the Lenders
of its acceptance if:


 


(i)                                     no
Default is continuing or would result from the acceptance of the Resignation
Letter (and the Company has confirmed this is the case);


 


(ii)                                  the
Guarantor Coverage Test will be complied with in accordance with Clause 22.19 (Guarantor Coverage Test) when calculated on a pro forma
basis to take into account the relevant Third Party Disposal;


 


(iii)                               where
the Guarantor is also a Borrower, it has no actual or contingent obligations as
a Borrower and has resigned and ceased to be a Borrower under Clause 25.3 (Resignation of a Borrower);


 


(iv)                                no
payment is due from the Guarantor under Clause 18.1 (Guarantee
and indemnity); and


 


(v)                                   the
Company has confirmed that where the Guarantor is subject to a Third Party
Disposal, it shall ensure that the Disposal Proceeds will be applied in
accordance with Clause 8.4 (Disposal Proceeds),


 


whereupon, upon such notification, that
company shall cease to be a Guarantor and shall have no further rights or
obligations as a Guarantor under the Finance Documents except, where there has
been a Third Party Disposal, the resignations shall not take effect (and the
Guarantor will continue to have rights and obligations under the Finance
Documents) until the date on which the Third Party Disposal takes effect.


 


25.7                        Release
of security on disposal


 


(a)                                 If a
Guarantor is or is proposed to be the subject of a Third Party Disposal then:


 


(i)                                     where
that Guarantor created Transaction Security over any of its assets or business
in favour of the Security Agent, or Transaction Security in favour of the
Security Agent was created over the shares (or equivalent) of that Guarantor,
the Security Agent is hereby authorised by the Finance Parties, subject to
paragraph (c) below, at the cost and request of the Company, to release
those assets, business or shares (or equivalent).


 


100

















 


(ii)                                  the
resignation of that Guarantor and related release of Transaction Security
referred to in paragraph (i) above shall not become effective until the
date of that disposal; and


 


(iii)                               if the
disposal of that Guarantor is not made, the Resignation Letter of that
Guarantor and the related release of Transaction Security referred to in
paragraph (i) above shall have no effect and the obligations of the
Guarantor and the Transaction Security created or intended to be created by or
over that Guarantor shall continue in such force and effect as if that release
had not been effected.


 


(b)                                 If
an asset subject to Transaction Security is disposed of where that disposal is
permitted under Clause 22.8 (Disposals) (and
the Company has confirmed this is the case) then:


 


(i)                                     the
Security Agent is hereby authorised by the Finance Parties, subject to
paragraph (c) below, at the cost and request of the
Company, to release that asset from the Transaction Security;


 


(ii)                                  the
release of that asset from the Transaction Security shall not become effective
until the date of that disposal; and


 


(iii)                               if
the disposal is not made, the release of the asset from the Transaction
Security shall have no effect and such asset shall continue to be subject to
the Transaction Security as if that release had not been effected.


 


(c)                                  The
prior consent of the Super-Majority Lenders shall be required to a release of
Transaction Security in connection with any of the following Disposals:


 


(i)                                     any
Disposal of real estate subject to Transaction Security to a person who is not
a Group Company;


 


(ii)                                  any
Disposal of shares in a Group Company subject to Transaction Security to a
person who is not a Group Company; or


 


(iii)                               any
Disposal of an asset subject to Transaction Security to a person who is not a
Group Company where such Disposal falls under a permission granted under
subparagraph (a)(viii) of Clause 22.8 (Disposals).


 


101

















 


SECTION 10



THE FINANCE PARTIES


 


26.                               ROLE OF THE AGENT AND THE MANDATED LEAD ARRANGERS


 


26.1                        Appointment
of the Agent


 


(a)                                 Each
of the Mandated Lead Arrangers and the Lenders appoints the Agent to act as its
agent under and in connection with the Finance Documents.


 


(b)                                 Each
of the Mandated Lead Arrangers and the Lenders authorises the Agent to exercise
the rights, powers, authorities and discretions specifically given to the Agent
under or in connection with the Finance Documents together with any other
incidental rights, powers, authorities and discretions.


 


26.2                        Duties
of the Agent


 


(a)                                 Subject
to paragraph (b) of Clause 13.5 (Stamp
Taxes) and paragraph (f) of Clause 31.5 (Electronic communication), the Agent shall
promptly forward to a Party the original or a copy of any document which is
delivered to the Agent for that Party by any other Party.


 


(b)                                 If
the Agent receives notice from a Party referring to this Agreement, describing
a Default and stating that the circumstance described is a Default, it shall
promptly notify the Lenders.


 


(c)                                  Except
where a Finance Document specifically provides otherwise, the Agent is not
obliged to check, review or check the adequacy, accuracy or completeness of any
document it provides to another Party.


 


(d)                                 The
Agent shall promptly notify the Lenders of any Default arising under Clause
23.1 (Non-payment).


 


(e)                                 The
Agent’s duties under the Finance Documents are solely mechanical and
administrative in nature.


 


(f)                                     The
Agent shall be exempted from the restrictions of self-dealing set forth in Section 181
of the German Civil Code (Bürgerliches Gesetzbuch)
or any other applicable restrictions of self-dealing pursuant to any other
applicable law, in each case to the extent legally possible, as concerns
self-dealing on its own account or on behalf of another person.  The Security Agent shall have the authority
to sub-delegate the power granted hereunder in accordance with this Agreement
and to grant an exemption from such restrictions to any sub-delegate.


 


(g)                                 The
Agent shall provide to the Company within 5 Business Days of a request by the
Company, a list (which may be in electronic form) setting out the names of the
Lenders as at that Business Day, their respective Commitments, the address and
fax number (and the department or officer, if any, for whose attention any
communication is to be made) of each Lender for any communication to be made or
document to be delivered under or in connection with the Finance Documents, the
electronic mail address and/or any other information required to enable the
sending and receipt of information by electronic mail or other electronic means
to and by each Lender to whom any communication under or in connection with the
Finance Documents may be made by that means and the account details of each
Lender for 


 


102

















 


any
payment to be distributed by the Agent to that Lender under the Finance
Documents.


 


26.3                        Role
of the Mandated Lead Arrangers


 


Except
as specifically provided in the Finance Documents, each Mandated Lead Arranger
has no obligations of any kind to any other Party under or in connection with
any Finance Document.


 


26.4                        No
fiduciary duties


 


(a)                                 Nothing
in this Agreement constitutes the Agent or the Mandated Lead Arrangers as a
trustee or fiduciary of any other person.


 


(b)                                 Neither
the Agent nor the Mandated Lead Arrangers shall be bound to account to any
Lender for any sum or the profit element of any sum received by it for its own
account.


 


26.5                        Business
with the Group


 


The
Agent and the Mandated Lead Arrangers may accept deposits from, lend money to
and generally engage in any kind of banking or other business with any Group
Company.


 


26.6                        Rights
and discretions of the Agent


 


(a)                                 The
Agent may rely on:


 


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


 


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


 


(b)                                 The
Agent may assume (unless it has received notice to the contrary in its capacity
as agent for the Lenders) that:


 


(i)                                     no
Default has occurred (unless it has actual knowledge of a Default arising under
Clause 23.1 (Non-payment));


 


(ii)                                  any
right, power, authority or discretion vested in any Party, the Majority Lenders
or the Super Majority Lenders has not been exercised; and


 


(iii)                               any
notice or request made by the Company (other than a Utilisation Request) is
made on behalf of and with the consent and knowledge of all the Obligors.


 


(c)                                  The
Agent may engage, pay for and rely on the advice or services of any lawyers,
accountants, surveyors or other experts.


 


(d)                                 The
Agent may act in relation to the Finance Documents through its personnel and
agents.


 


(e)                                 The
Agent may disclose to any other Party any information it reasonably believes it
has received as agent under this Agreement.


 


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(f)                                     Without
prejudice to the generality of paragraph (e) above, the Agent may disclose
the identity of the Defaulting Lender to the other Finance Parties and the
Company and shall disclose the same upon the written request of the Company or
the Majority Lenders.


 


(g)                                 Notwithstanding
any other provision of any Finance Document to the contrary, none of the Agent
or the Mandated Lead Arranger is obliged to do or omit to do anything if it
would or might in its reasonable opinion constitute a breach of any law or
regulation or a breach of a fiduciary duty or duty of confidentiality.


 


26.7                        Majority
Lenders’ instructions


 


(a)                                 Unless
a contrary indication appears in a Finance Document, the Agent shall (a) exercise
any right, power, authority or discretion vested in it as Agent in accordance
with any instructions given to it by the Majority Lenders (or, if so instructed
by the Majority Lenders, refrain from exercising any right, power, authority or
discretion vested in it as Agent) and (b) not be liable for any act (or
omission) if it acts (or refrains from taking any action) in accordance with
such an instruction of the Majority Lenders.


 


(b)                                 Unless
a contrary indication appears in a Finance Document, any instructions given by
the Majority Lenders will be binding on all Finance Parties (other than the
Security Agent).


 


(c)                                  The
Agent may refrain from acting in accordance with the instructions of the
Majority Lenders (or, if appropriate, the Lenders) until it has received such
security as it may require for any cost, loss or liability (together with any
associated VAT) which it may incur in complying with the instructions.


 


(d)                                 In
the absence of instructions from the Majority Lenders (or, if appropriate,
the  Super Majority Lenders or the
Lenders) the Agent may act (or refrain from taking action) as it considers to
be in the best interest of the Lenders.


 


(e)                                 The
Agent is not authorised to act on behalf of a Lender (without first obtaining
that Lender’s consent) in any legal or arbitration proceedings relating to any
Finance Document.  This paragraph (e) shall
not apply to any legal or arbitration proceedings relating to the perfection,
preservation or protection of rights under the Transaction Security Documents
or enforcement under the Transaction Security or Transaction Security
Documents.


 


26.8                        Responsibility
for documentation


 


Neither
the Agent nor the Mandated Lead Arrangers:


 


(a)                                 is
responsible for the adequacy, accuracy and/or completeness of any information
(whether oral or written) supplied by the Agent, the Mandated Lead Arrangers,
an Obligor or any other person given in or in connection with any Finance
Document, the Information Package or the PwC Report;


 


(b)                                 is
responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or the Transaction Security any other
agreement, arrangement or document entered into, made or executed in
anticipation of or in connection with any Finance Document or the Transaction
Security; or


 


(c)                                  is
responsible for any determination as to whether any information provided or to
be provided to any Finance Party is non-public information the use of which may
be 


 


104

















 


regulated
or prohibited by applicable law or regulation relating to insider dealing or
otherwise.


 


26.9                        Exclusion
of liability


 


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


 


(b)                                 No
Party (other than the Agent) may take any proceedings against any officer,
employee or agent of the Agent in respect of any claim it might have against
the Agent or in respect of any act or omission of any kind by that officer,
employee or agent in relation to any Finance Document and any officer, employee
or agent of the Agent may rely on this Clause.


 


(c)                                  The
Agent will not be liable for any delay (or any related consequences) in
crediting an account with an amount required under the Finance Documents to be
paid by the Agent if the Agent has taken all necessary steps as soon as
reasonably practicable to comply with the regulations or operating procedures
of any recognised clearing or settlement system used by the Agent for that
purpose.


 


(d)                                 Nothing
in this Agreement shall oblige the Agent or the Mandated Lead Arrangers to
carry out any “know your customer” or other checks in relation to any person on
behalf of any Lender and each Lender confirms to the Agent and the Mandated
Lead Arrangers that it is solely responsible for any such checks it is required
to carry out and that it may not rely on any statement in relation to such
checks made by the Agent or the Mandated Lead Arrangers.


 


26.10                 Lenders’
indemnity to the Agent


 


Each
Lender shall (in proportion to its share of the Total Commitments or, if the
Total Commitments are then zero, to its share of the Total Commitments
immediately prior to their reduction to zero) indemnify the Agent, within three
Business Days of demand, against any cost, loss or liability incurred by the
Agent (otherwise than by reason of the Agent’s gross negligence or wilful
misconduct) in acting as Agent under the Finance Documents (unless the Agent
has been reimbursed by an Obligor pursuant to a Finance Document).


 


26.11                 Resignation
of the Agent


 


(a)                                 The
Agent may resign and appoint one of its Affiliates acting through an office as
successor by giving notice to the Lenders and the Company.


 


(b)                                 Alternatively
the Agent may resign by giving notice to the Lenders and the Company, in which
case the Majority Lenders (after consultation with the Company) may appoint a
successor Agent.


 


(c)                                  If
the Majority Lenders have not appointed a successor Agent in accordance with
paragraph (b) above within 30 days after notice of resignation was given,
the Agent (after consultation with the Company) may appoint a successor Agent.


 


(d)                                 If the Agent wishes to resign because (acting
reasonably) it has concluded that it is no longer appropriate for it to remain
as agent and the Agent is entitled to appoint a successor Agent under paragraph
(c) above, the Agent may (if it concludes (acting reasonably) that it is
necessary to do so in order to persuade the proposed successor Agent to become
a party to this Agreement as Agent) agree with the proposed successor Agent
amendments to this Clause 26 consistent with then current market 


 


105

















 


practice for the appointment and protection of
corporate trustees and those amendments will bind the Parties, provided that no
amendment may be made which increases the agency fee payable under this
Agreement or which prejudices the interests of the Obligors in any material
respect without the prior consent of the Company.


 


(e)                                 The
retiring Agent shall, at its own cost, make available to the successor Agent
such documents and records and provide such assistance as the successor Agent
may reasonably request for the purposes of performing its functions as Agent
under the Finance Documents.


 


(f)                                     The
Agent’s resignation notice shall only take effect upon the appointment of a
successor.


 


(g)                                 Upon
the appointment of a successor, the retiring Agent shall be discharged from any
further obligation in respect of the Finance Documents but shall remain
entitled to the benefit of this Clause 26. Its successor and each of the other Parties shall have the
same rights and obligations amongst themselves as they would have had if such
successor had been an original Party.


 


26.12                 Replacement
of the Agent


 


(a)                                 After
consultation with the Company, the Majority Lenders may, by giving 30 days’
notice to the Agent (or, at any time the Agent is an Impaired Agent, by giving
any shorter notice determined by the Majority Lenders) replace the Agent by
appointing a successor Agent (acting through an office in the United Kingdom).


 


(b)                                 The
retiring Agent shall (at its own cost if it is an Impaired Agent and otherwise
at the expense of the Lenders) make available to the successor Agent such
documents and records and provide such assistance as the successor Agent may
reasonably request for the purposes of performing its functions as Agent under
the Finance Documents.


 


(c)                                  The
appointment of the successor Agent shall take effect on the date specified in
the notice from the Majority Lenders to the retiring Agent. As from this date,
the retiring Agent shall be discharged from any further obligation in respect
of the Finance Documents but shall remain entitled to the benefit of this
Clause 26 (and any agency fees for the account of the retiring Agent shall
cease to accrue from (and shall be payable on) that date).


 


(d)                                 Any
successor Agent and each of the other Parties shall have the same rights and
obligations amongst themselves as they would have had if such successor had
been an original Party.


 


26.13                 Confidentiality


 


(a)                                 In
acting as agent for the Finance Parties, the Agent shall be regarded as acting
through its agency division which shall be treated as a separate entity from
any other of its divisions or departments.


 


(b)                                 If
information is received by another division or department of the Agent, it may
be treated as confidential to that division or department and the Agent shall
not be deemed to have notice of it.


 


(c)                                  Notwithstanding
any other provision of any Finance Document to the contrary, neither the Agent
nor the Mandated Lead Arrangers are obliged to disclose to any 


 


106

















 


other
person (i) any Confidential Information or (ii) any other information
if the disclosure would or might in its reasonable opinion constitute a breach
of any law or a breach of a fiduciary duty.


 


26.14                 Relationship
with the Lenders


 


(a)                                 The
Agent may treat the person shown in its records as Lender at the opening of
business (in the place of the Agent’s principal office as notified to the
Finance Parties from time to time) as the Lender acting through its Facility
Office:


 


(i)                                     entitled
to or liable for any payment due under any Finance Document on that day; and


 


(ii)                                  entitled
to receive and act upon any notice, request, document or communication or make
any decision or determination under any Finance Document made or delivered on
that day,


 


unless
it has received not less than five Business Days’ prior notice from that Lender
to the contrary in accordance with the terms of this Agreement.


 


(b)                                 Each
Lender shall supply the Agent with any information required by the Agent in
order to calculate the Mandatory Cost in accordance with Schedule 4 (Mandatory Cost Formulae).


 


(c)                                  Each
Lender shall supply the Agent with any information that the Security Agent may
reasonably specify (through the Agent) as being necessary or desirable to
enable the Security Agent to perform its functions as Security Agent.  Each Lender shall deal with the Security
Agent exclusively through the Agent and shall not deal directly with the
Security Agent.


 


(d)                                 Any Lender
may by notice to the Agent appoint a person to receive on its behalf all
notices, communications, information and documents to be made or despatched to
that Lender under the Finance Documents. 
Such notice shall contain the address, fax number and (where
communication by electronic mail or other electronic means is permitted under
Clause 31.5 (Electronic communication))
electronic mail address and/or any other information required to enable the
sending and receipt of information by that means (and, in each case, the
department or officer, if any, for whose attention communication is to be made)
and be treated as a notification of a substitute address, fax number,
electronic mail address, department and officer by that Lender for the purposes
of Clause 31.2 (Addresses) and paragraph (b) of
Clause 31.5 (Electronic communication) and the
Agent shall be entitled to treat such person as the person entitled to receive
all such notices, communications, information and documents as though that
person were that Lender.


 


26.15                 Credit
appraisal by the Lenders


 


Without
affecting the responsibility of any Obligor for information supplied by it or
on its behalf in connection with any Finance Document, each Lender confirms to
the Agent and the Mandated Lead Arrangers that it has been, and will continue
to be, solely responsible for making its own independent appraisal and
investigation of all risks arising under or in connection with any Finance
Document including but not limited to:


 


(a)                                 the
financial condition, status and nature of each Group Company;


 


(b)                                 the
legality, validity, effectiveness, adequacy or enforceability of any Finance
Document and the Transaction Security and any other agreement, arrangement or
document 


 


107

















 


entered
into, made or executed in anticipation of, under or in connection with any
Finance Document or the Transaction Security;


 


(c)                                  whether
that Secured Party has recourse, and the nature and extent of that recourse,
against any Party or any of its respective assets under or in connection with
any Finance Document, the Transaction Security, the transactions contemplated
by the Finance Documents or any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in connection with
any Finance Document;


 


(d)                                 the
adequacy, accuracy and/or completeness of the Information Memorandum, the PwC
Report and any other information provided by the Agent, any Party or by any
other person under or in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or in
connection with any Finance Document; and


 


(e)                                 the
right or title of any person in or to, or the value or sufficiency of any part
of the Charged Property, the priority of any of the Transaction Security or the
existence of any Security affecting the Charged Property.


 


26.16                 Reference
Banks


 


If
a Reference Bank (or, if a Reference Bank is not a Lender, the Lender of which
it is an Affiliate) ceases to be a Lender, the Agent shall (in consultation
with the Company) appoint another Lender or an Affiliate of a Lender to replace
that Reference Bank.


 


26.17                 Agent
to hold original documents


 


The
Agent shall hold one of each of the complete originals of this Agreement and
any Transfer Certificate at an address outside of Austria for the benefit of
the Finance Parties and each copy shall be clearly marked “Agent’s Copy”.


 


26.18                 Agent’s
management time


 


Any
amount payable to the Agent under Clause 15.3 (Indemnity to
the Agent), Clause 17 (Costs and expenses)
and Clause 26.10 (Lenders’ indemnity to the Agent)
shall include the cost of utilising the Agent’s management time or other
resources and will be calculated on the basis of such reasonable daily or
hourly rates as the Agent may agree with the Company and the Lenders, and is in
addition to any fee paid or payable to the Agent under Clause 12 (Fees).


 


26.19                 Deduction
from amounts payable by the Agent


 


If
any Party owes an amount to the Agent under the Finance Documents the Agent
may, after giving notice to that Party, deduct an amount not exceeding that
amount from any payment to that Party which the Agent would otherwise be
obliged to make under the Finance Documents and apply the amount deducted in or
towards satisfaction of the amount owed. 
For the purposes of the Finance Documents that Party shall be regarded
as having received any amount so deducted.


 


26.20                 Reliance
and engagement letters


 


Each
Finance Party and Secured Party confirms that each of the Mandated Lead
Arranger and the Agent has authority to accept on its behalf (and ratifies the
acceptance on its behalf of any letters or reports already accepted by the
Mandated Lead Arranger or Agent) the terms of any reliance/non-reliance letter
or confidentiality agreement engagement letters relating to the 


 


108

















 


PwC
Report or any reports or letters provided by accountants in connection with the
Finance Documents or the transactions contemplated in the Finance Documents and
to bind it in respect of the PwC Report, reports or letters and to sign such
letters on its behalf and further confirms that it accepts the terms and
qualifications set out in such letters.


 


26.21                 Representation
by Original Lenders


 


Each Original Lender confirms for the purposes of
paragraph (b) of Clause 13.3 (Tax indemnity)
that on the Signing Date it is a Treaty Lender.


 


27.                               CONDUCT OF BUSINESS BY THE FINANCE PARTIES


 


No
provision of this Agreement will:


 


(a)                                 interfere
with the right of any Finance Party to arrange its affairs (tax or otherwise)
in whatever manner it thinks fit;


 


(b)                                 oblige
any Finance Party to investigate or claim any credit, relief, remission or
repayment available to it or the extent, order and manner of any claim; or


 


(c)                                  oblige
any Finance Party to disclose any information relating to its affairs (tax or
otherwise) or any computations in respect of Tax.


 


28.                               SHARING AMONG THE LENDERS


 


28.1                        Payments
to Lenders


 


If
a Lender (a “Recovering Lender”)
receives or recovers any amount from an Obligor other than in accordance with
Clause 29 (Payment mechanics) and
applies that amount to a payment due under the Finance Documents then:


 


(a)                                 the
Recovering Lender shall, within three Business Days, notify details of the
receipt or recovery to the Agent;


 


(b)                                 the
Agent shall determine whether the receipt or recovery is in excess of the
amount the Recovering Lender would have been paid had the receipt or recovery
been received or made by the Agent and distributed in accordance with Clause 29
(Payment mechanics), without
taking account of any Tax which would be imposed on the Agent in relation to
the receipt, recovery or distribution; and


 


(c)                                  the
Recovering Lender shall, within three Business Days of demand by the Agent, pay
to the Agent an amount (the “Sharing Payment”)
equal to such receipt or recovery less any amount which the Agent determines
may be retained by the Recovering Lender as its share of any payment to be made,
in accordance with Clause 29.6 (Partial
payments).


 


28.2                        Redistribution
of payments


 


The
Agent shall treat the Sharing Payment as if it had been paid by the relevant
Obligor and distribute it between the Finance Parties (other than the
Recovering Lender) in accordance with Clause 29.6 (Partial payments).


 


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28.3                        Recovering
Lender’s rights


 


(a)                                 On a
distribution by the Agent under Clause 28.2 (Redistribution
of payments), the Recovering Lender will be subrogated to the rights
of the Finance Parties which have shared in the redistribution.


 


(b)                                 If
and to the extent that the Recovering Lender is not able to rely on its rights
under paragraph (a) above, the relevant Obligor shall be liable to the
Recovering Lender for a debt equal to the Sharing Payment which is immediately
due and payable.


 


28.4                        Reversal
of redistribution


 


If
any part of the Sharing Payment received or recovered by a Recovering Lender
becomes repayable and is repaid by that Recovering Lender, then:


 


(a)                                 each
Lender which has received a share of the relevant Sharing Payment pursuant to
Clause 28.2 (Redistribution of payments)
shall, upon request of the Agent, pay to the Agent for the account of that
Recovering Lender an amount equal to its share of the Sharing Payment (together
with an amount as is necessary to reimburse that Recovering Lender for its
proportion of any interest on the Sharing Payment which that Recovering Lender
is required to pay); and


 


(b)                                 that
Recovering Lender’s rights of subrogation in respect of any reimbursement shall
be cancelled and the relevant Obligor will be liable to the reimbursing Lender
for the amount so reimbursed.


 


28.5                        Exceptions


 


(a)                                 This
Clause 28 shall not apply to the extent that the Recovering Lender would not,
after making any payment pursuant to this Clause, have a valid and enforceable
claim against the relevant Obligor.


 


(b)                                 A
Recovering Lender is not obliged to share with any other Lender any amount
which the Recovering Lender has received or recovered as a result of taking
legal or arbitration proceedings, if:


 


(i)                                     it
notified the other Lenders of the legal or arbitration proceedings; and


 


(ii)                                  the
other Lenders had an opportunity to participate in those legal or arbitration
proceedings but did not do so as soon as reasonably practicable having received
notice or did not take separate legal or arbitration proceedings.


 


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SECTION 11



ADMINISTRATION


 


29.                               PAYMENT MECHANICS


 


29.1                        Payments
to the Agent


 


(a)                                 On
each date on which an Obligor or a Lender is required to make a payment under a
Finance Document, that Obligor or Lender shall make the same available to the
Agent (unless a contrary indication appears in a Finance Document) for value on
the due date at the time and in such funds specified by the Agent as being
customary at the time for settlement of transactions in the relevant currency
in the place of payment.


 


(b)                                 Payment
shall be made to such account in the principal financial centre of the country
of that currency (or, in relation to Euro, in a principal financial centre in a
Participating Member State or London) but, in no event, in Austria, with such
bank as the Agent specifies.


 


(c)                                  Any
payment made by or to Sappi Papier Holding GmbH or any other Obligor under or
in connection with a Finance Document shall be made from and to an account
outside of Austria.


 


(d)                                 Any
payment made by a Finance Party to another Finance Party under or in connection
with a Finance Document shall be made from and to an account outside of
Austria.


 


29.2                        Distributions
by the Agent


 


Each
payment received by the Agent under the Finance Documents for another Party
shall, subject to Clause 29.3 (Distributions
to an Obligor) and Clause 29.4 (Clawback)
be made available by the Agent as soon as practicable after receipt to the
Party entitled to receive payment in accordance with this Agreement (in the
case of a Lender, for the account of its Facility Office), to such account as
that Party may notify to the Agent in accordance with paragraphs (b), (c) and
(d) of Clause 29.1 (Payments to the
Agent) by not less than five Business Days’ notice with a bank in
the principal financial centre of the country of that currency (or, in relation
to Euro, in the principal financial centre of a Participating Member State or
London).


 


29.3                        Distributions
to an Obligor


 


The
Agent may (with the consent of the Obligor or in accordance with Clause 30 (Set-off)) apply any amount received by it
for that Obligor in or towards payment (on the date and in the currency and
funds of receipt) of any amount due from that Obligor under the Finance
Documents or in or towards purchase of any amount of any currency to be so
applied.


 


29.4                        Clawback


 


(a)                                 Where
a sum is to be paid to the Agent under the Finance Documents for another Party,
the Agent is not obliged to pay that sum to that other Party (or to enter into
or perform any related exchange contract) until it has been able to establish
to its satisfaction that it has actually received that sum.


 


(b)                                 If
the Agent pays an amount to another Party and it proves to be the case that the
Agent had not actually received that amount, then the Party to whom that amount
(or 


 


111

















 


the proceeds of any related exchange contract) was paid by
the Agent shall on demand refund the same to the Agent together with interest
on that amount from the date of payment to the date of receipt by the Agent,
calculated by the Agent to reflect its cost of funds.


 


29.5                        Impaired
Agent


 


(a)                                 If,
at any time, the Agent becomes an Impaired Agent, an Obligor or a Lender which
is required to make a payment under the Finance Documents to the Agent in
accordance with Clause 29.1 (Payments
to the Agent) may instead either pay that amount direct to the
required recipient or pay that amount to an interest-bearing account held with
an Acceptable Bank within the meaning of paragraph (a) of the definition
of “Acceptable Bank” and in
relation to which no Insolvency Event has occurred and is continuing, in the
name of the Obligor or the Lender making the payment and designated as a trust
account for the benefit of the Party or Parties beneficially entitled to that
payment under the Finance Documents.  In
each case such payments must be made on the due date for payment under the
Finance Documents.


 


(b)                                 All
interest accrued on the amount standing to the credit of the trust account
shall be for the benefit of the beneficiaries of that trust account pro rata to their respective entitlements.


 


(c)                                  A
Party which has made a payment in accordance with this Clause 29.5 shall be
discharged of the relevant payment obligation under the Finance Documents and
shall not take any credit risk with respect to the amounts standing to the
credit of the trust account.


 


(d)                                 Promptly
upon the appointment of a successor Agent in accordance with Clause  26.12
(Replacement of the Agent), each
Party which has made a payment to a trust account in accordance with this
Clause 29.5 shall give all requisite instructions to the bank with whom
the trust account is held to transfer the amount (together with any accrued
interest) to the successor Agent for distribution in accordance with
Clause 29.2 (Distributions by the Agent).


 


29.6                        Partial
payments


 


(a)                                 If
the Agent receives a payment for application against amounts due in respect of
any Finance Documents that is insufficient to discharge all the amounts then
due and payable by an Obligor under those Finance Documents, the Agent shall
apply that payment towards the obligations of that Obligor under those Finance
Documents in the following order:


 


(i)                                     first, in or towards payment pro rata of any unpaid fees, costs
and expenses of the Agent and the Security Agent under the Finance Documents;


 


(ii)                                  second, in or towards payment pro rata of any accrued interest, fee
or commission due but unpaid under those Finance Documents;


 


(iii)                               thirdly, in or towards payment pro rata of amounts of principal due
but unpaid under those Finance Documents; and


 


(iv)                                fourthly, in or towards
payment pro rata of any other sum due but unpaid under the Finance Documents.


 


(b)                                 The
Agent shall, if so directed by the Majority Lenders, vary the order set out in
paragraphs (a)(ii) to (iv) above.


 


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(c)                                  Paragraphs
(a) and (b) above will override any appropriation made by an Obligor.


 


29.7                        No
set-off by Obligors


 


All
payments to be made by an Obligor under the Finance Documents shall be
calculated and be made without (and free and clear of any deduction for)
set-off or counterclaim.


 


29.8                        Business
Days


 


(a)                                 Any
payment which is due to be made on a day that is not a Business Day shall be
made on the next Business Day in the same calendar month (if there is one) or
the preceding Business Day (if there is not).


 


(b)                                 During
any extension of the due date for payment of any principal or an Unpaid Sum
under this Agreement interest is payable on the principal or Unpaid Sum at the
rate payable on the original due date.


 


29.9                        Currency
of account


 


(a)                                 Subject
to paragraphs (b) to (e) below, the Base Currency is the currency of
account and payment for any sum due from an Obligor under any Finance Document.


 


(b)                                 A
repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum shall be
made in the currency in which that Loan or Unpaid Sum is denominated on its due
date.


 


(c)                                  Each
payment of interest shall be made in the currency in which the sum in respect
of which the interest is payable was denominated when that interest accrued.


 


(d)                                 Each
payment in respect of costs, expenses or Taxes shall be made in the currency in
which the costs, expenses or Taxes are incurred.


 


(e)                                 Any
amount expressed to be payable in a currency other than the Base Currency shall
be paid in that other currency.


 


29.10                 Change
of currency


 


(a)                                 Unless
otherwise prohibited by law, if more than one currency or currency unit are at
the same time recognised by the central bank of any country as the lawful
currency of that country, then:


 


(i)                                     any
reference in the Finance Documents to, and any obligations arising under the
Finance Documents in, the currency of that country shall be translated into, or
paid in, the currency or currency unit of that country designated by the Agent
(after consultation with the Company); and


 


(ii)                                  any
translation from one currency or currency unit to another shall be at the
official rate of exchange recognised by the central bank for the conversion of
that currency or currency unit into the other, rounded up or down by the Agent
(acting reasonably).


 


(b)                                 If a
change in any currency of a country occurs, this Agreement will, to the extent
the Agent (acting reasonably and after consultation with the Company) specifies
to be necessary, be amended to comply with any generally accepted conventions
and market practice in the Relevant Interbank Market and otherwise to reflect
the change in currency.


 


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30.                               SET-OFF


 


Without
prejudice to the rights of the Finance Parties at law, whilst an Event of
Default is continuing unremedied and unwaived, a Finance Party may set off any
matured obligation due from an Obligor under the Finance Documents (to the
extent beneficially owned by that Finance Party) against any matured obligation
owed by that Finance Party to that Obligor, regardless of the place of payment,
booking branch or currency of either obligation. If the obligations are in
different currencies, the Finance Party may convert either obligation at a
market rate of exchange in its usual course of business for the purpose of the
set-off.


 


31.                               NOTICES


 


31.1                        Communications
in writing


 


Any
communication to be made under or in connection with the Finance Documents
shall be made in writing and, unless otherwise stated, may be made by fax or
letter and, in all cases, shall be made in accordance with the Stamp Duty
Guidelines.


 


31.2                        Addresses


 


Subject
to the other terms of this Agreement, the address and fax number (and the
department or officer, if any, for whose attention the communication is to be
made) of each Party for any communication or document to be made or delivered
under or in connection with the Finance Documents is:


 


(a)                                 in
the case of the Obligors’ Agent, that identified with its name below;


 


(b)                                 in
the case of each Lender or any other Original Obligor, that notified in writing
to the Agent on or prior to the date on which it becomes a Party; and


 


(c)                                  in
the case of the Agent and the Security Agent, that identified with its name
below,


 


or
any substitute address, fax number or department or officer as the Party may
notify to the Agent (or the Agent may notify to the other Parties, if a change
is made by the Agent) by not less than five Business Days’ notice, provided
that such address, fax number or department or officer shall be outside the
Republic of Austria.


 


31.3                        Delivery


 


(a)                                 Any
communication or document made or delivered by one person to another under or
in connection with the Finance Documents will only be effective:


 


(i)                                     if
by way of fax, when received in legible form; or


 


(ii)                                  if
by way of letter, when it has been left at the relevant address seven Business
Days after being deposited in the post postage prepaid in an envelope addressed
to it at that address,


 


and,
if a particular department or officer is specified as part of its address
details provided under Clause 31.2 (Addresses),
if addressed to that department or officer.


 


(b)                                 Any
communication or document to be made or delivered to the Agent will be effective
only when actually received by the Agent and then only if it is expressly
marked for the attention of the department or officer identified with the Agent’s
signature below (or any substitute department or officer as the Agent shall
specify for this purpose).


 


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(c)                                  All
notices from or to an Obligor shall be sent through the Agent.


 


(d)                                 Any
communication or document made or delivered to the Obligors’ Agent in
accordance with this Clause will be deemed to have been made or delivered to
each of the Obligors.


 


31.4                        Notification
of address and fax number


 


Promptly
upon receipt of notification of an address and fax number or change of address
or fax number pursuant to Clause 31.2 (Addresses)
or changing its own address or fax number, the Agent shall notify the other
Parties.


 


31.5                        Electronic
communication


 


(a)                                 Any
communication to be made between the Parties under or in connection with the
Finance Documents (other than (i) delivery of any Utilisation Request, a certificate
in accordance with Clause 20.2 (Compliance
Certificate) or any request for an amendment to or waiver of this
Agreement, (ii) in the case of a Guarantor, delivery of any request for an
amendment or waiver of this Agreement) may be made by electronic mail or other
electronic means and the Parties shall notify each other (in particular, the
Agent) in writing of their electronic mail address and/or any other information
required to enable the sending and receipt of information by that means.


 


(b)                                 Each
Party shall promptly notify each other Party (in particular, the Agent) of any
change to their electronic mail address or any other such information supplied
by them.


 


(c)                                  Any
electronic communication made:


 


(i)                                     by
the Agent to another Party will be effective only when actually received in
readable form by the relevant recipient and then only if it is addressed in
such a manner as that relevant Lender or Obligor, as the case may be, shall
specify to the Agent for this purpose; and


 


(ii)                                  by a
Lender or any Obligor to the Agent will be effective only when actually
received in readable form by the Agent and then only if it is addressed in such
a manner as the Agent shall specify to that Lender or, as the case may be, that
Obligor for this purpose.


 


(d)                                 Each
Party shall notify any affected Parties promptly upon becoming aware that its
electronic mail system or other electronic means of communication cannot be
used due to technical failure (and that failure is continuing for more than 36
hours). Until that Party has notified the other affected Parties that the
failure has been remedied, all notices between those Parties shall be sent by
fax or letter in accordance with this Clause 31 (Notices).


 


(e)                                 In
the case of notification of rates of interest by the Agent pursuant to Clause
9.4 (Notification of rates of interest)
and in the case of the delivery of any document by the Agent pursuant to
paragraph (a) of Clause 26.2 (Duties of
the Agent), the Agent may refer a Lender or an Obligor (by fax,
letter or e-mail) to a web site and to the location of the relevant information
on such web site in discharge of such notification or delivery obligation.


 


(f)                                     Each
of the Parties agrees that it will comply with the Stamp Duty Guidelines.


 


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31.6                        English
language


 


(a)                                 Any
notice given under or in connection with any Finance Document must be in
English.


 


(b)                                 All
other documents provided under or in connection with any Finance Document must
be:


 


(i)                                     in
English; or


 


(ii)                                  if
not in English, and if so required by the Agent, accompanied by a certified
English translation and, in this case, the English translation will prevail
unless the document is a constitutional, statutory or other official document.


 


31.7                        Communication
when Agent is Impaired Agent


 


If the Agent is an Impaired Agent the Parties may,
instead of communicating with each other through the Agent, communicate with
each other directly and (while the Agent is an Impaired Agent) all the
provisions of the Finance Documents which require communications to be made or
notices to be given to or by the Agent shall be varied so that communications
may be made and notices given to or by the relevant Parties directly but always
in accordance with the Stamp Duty Guidelines. 
This provision shall not operate after a replacement Agent has been
appointed.


 


32.                               CALCULATIONS AND CERTIFICATES


 


32.1                        Accounts


 


In
any litigation or arbitration proceedings arising out of or in connection with
a Finance Document the entries made in the accounts maintained by a Finance
Party are prima facie evidence of
the matters to which they relate.


 


32.2                        Certificates
and determinations


 


Any
certification or determination by a Finance Party of a rate or amount under any
Finance Document is, in the absence of manifest error, conclusive evidence of
the matters to which it relates.


 


32.3                        Day
count convention


 


Any
interest, commission or fee accruing under a Finance Document will accrue from
day to day and is calculated on the basis of the actual number of days elapsed
and a year of 360 days or, in any case where the practice in the Relevant
Interbank Market differs, in accordance with that market practice.


 


33.                               PARTIAL INVALIDITY


 


If,
at any time, any provision of the Finance Documents is or becomes illegal,
invalid or unenforceable in any respect under any law of any jurisdiction,
neither the legality, validity or enforceability of the remaining provisions
nor the legality, validity or enforceability of such provision under the law of
any other jurisdiction will in any way be affected or impaired.


 


34.                               REMEDIES AND WAIVERS


 


No
failure to exercise, nor any delay in exercising, on the part of any Finance
Party or Secured Party any right or remedy under the Finance Documents shall
operate as a waiver, 


 


116

















 


nor
shall any single or partial exercise of any right or remedy prevent any further
or other exercise or the exercise of any other right or remedy. The rights and
remedies provided in this Agreement are cumulative and not exclusive of any
rights or remedies provided by law.


 


35.                               AMENDMENTS AND WAIVERS


 


35.1                        Intercreditor
Agreement


 


This
Clause 35 is subject to the terms of the Intercreditor Agreement.


 


35.2                        Required
consents


 


(a)                                 Subject
to Clause 35.3 (Exceptions) any
term of the Finance Documents may be amended or waived only with the consent of
the Majority Lenders and the Obligors’ Agent and any such amendment or waiver
will be binding on all Parties.


 


(b)                                 The
Agent may effect, on behalf of any Finance Party, any amendment or waiver
permitted by this Clause.


 


Each
Obligor agrees to any such amendment or waiver permitted by this Clause 35.2
which is agreed to by the Company.  This
includes any amendment or waiver which would, but for this paragraph (c),
require the consent of all Guarantors.


 


35.3                        Exceptions


 


(a)                                 An
amendment or waiver that has the effect of changing or which relates to:


 


(i)                                     the
definition of “Majority Lenders” in Clause 1.1 (Definitions);


 


(ii)                                  subject
to paragraph (c) below, an extension to the date of payment of any amount
under the Finance Documents;


 


(iii)                               save
for as otherwise provided in paragraph (e) below a reduction in the
Margin, the commission rate, the amount of, or the currency of any payment of
principal, interest, fees or commission payable;


 


(iv)                                subject
to paragraph (c) below, an increase or extensions of any Commitment;


 


(v)                                   a
change to the Borrowers or the Guarantors (other than in accordance with Clause
25 (Changes to the Obligors);


 


(vi)                                any
provision which expressly requires the consent of all the Lenders;


 


(vii)                             Clause
2.2 (Finance Parties’ rights and obligations),
Clause 8.3 (Exit), Clause 24 (Changes to
the Lenders), Clause 28 (Sharing among the Lenders)
or this Clause 35;


 


(viii)                          the
manner in which the proceeds of enforcement of the Transaction Security are
distributed; or


 


(ix)                                any
amendment to the order of priority or subordination under the Intercreditor
Agreement,


 


shall
not be made without the prior consent of all the Lenders.


 


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(b)                                 An
amendment or waiver which relates to the rights or obligations of the Agent or
the Mandated Lead Arrangers may not be effected without the consent of the
Agent or the Mandated Lead Arrangers.


 


(c)                                  Any
amendment or waiver which relates to the right of prepayment under Clause 8 (Prepayment and cancellation) save for Clause 8.3 (Exit), shall not be made without the prior consent of the
Majority Lenders.


 


(d)                                 Any
amendment or waiver which relates to:


 


(i)                                     the
nature or scope of the Charged Property; or


 


(ii)                                  the
nature or scope of or any release of any guarantee and indemnity granted under
Clause 18 (Guarantee and indemnity) or of any
Transaction Security,


 


in each case other than as contemplated under Clause 25.7 (Release of security on disposal) shall not be made without
the prior consent of the Super-Majority Lenders.


 


(e)                                 A
Fee Letter may be amended or waived with the agreement of the parties to that
Fee Letter.


 


(f)                                     If any Lender fails to respond to a request for a
consent, waiver, amendment of or in relation to any of the terms of any Finance
Document or other vote of Lenders under the terms of this Agreement within 10 Business Days (unless the Company
and the Agent agree to a longer time period in relation to any request) of that
request being made, its Commitment and/or participation shall not be included
for the purpose of calculating the Total Commitments or participations under
the Facility when ascertaining whether any relevant percentage of Total
Commitments and/or participations has been obtained to approve that request.


 


35.4                        Replacement of Lender


 


(a)                                 If at any time:


 


(i)                                     any Lender becomes a Non-Consenting Lender (as
defined in paragraph (c) below); or


 


(ii)                                  an Obligor becomes obliged to repay any amount in
accordance with Clause 8.1 (Illegality) or
to pay additional amounts pursuant to Clause 14.1 (Increased
Costs) or Clause 13.2 (Tax gross-up)
to any Lender in excess of amounts payable to the other Lenders generally,


 


then the Company may, on 15 Business
Days’ prior written notice to the Agent and such Lender, replace such Lender by
requiring such Lender to (and such Lender shall) transfer pursuant to Clause 24
(Changes to the Lenders) all (and not
part only) of its rights and obligations under this Agreement to a Lender or
other bank, financial institution, trust, fund or other entity (a “Replacement Lender”) selected by the Company, and which is
acceptable to the Agent (acting reasonably), which confirms its willingness to
assume and does assume all the obligations of the transferring Lender
(including the assumption of the transferring Lender’s participations on the
same basis as the transferring Lender) for a purchase price in cash payable at
the time of transfer equal to the outstanding principal amount of such Lender’s
participation in the outstanding Utilisations and all accrued interest and/or
fees arising under Clause 12 (Fees), Break
Costs and other amounts payable in relation thereto under the Finance
Documents.


 


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(b)                                 The replacement of a Lender pursuant to this Clause
35 shall be subject to the following conditions:


 


(i)                                     the Company shall have no right to replace the
Agent;


 


(ii)                                  neither the Agent nor the Lender shall have any
obligation to the Company to find a Replacement Lender;


 


(iii)                               in the event of a replacement of a Non-Consenting
Lender such replacement must take place no later than 60 days after the date the
Non-Consenting Lender notifies the Company and the Agent of its failure or
refusal to give a consent in relation to, or agree to any waiver or amendment
to the Finance Documents requested by the Company; and


 


(iv)                                in no event shall the Lender replaced under this
paragraph (b) be required to pay or surrender to such Replacement Lender
any of the fees received by such Lender pursuant to the Finance Documents.


 


(c)                                  In the event that:


 


(i)                                     the Company or the Agent (at the request of the
Company) has requested the Lenders to give a consent in relation to, or to
agree to a waiver or amendment of, any provisions of the Finance Documents;


 


(ii)                                  the consent, waiver or amendment in question
requires the approval of all the Lenders or Super Majority Lenders; and


 


(iii)                               Lenders whose Commitments aggregate more than 75
per cent. of the Total Commitments (or, if the Total Commitments have been
reduced to zero, aggregated more than 75 per cent. of the Total Commitments
prior to that reduction) have consented or agreed to such waiver or amendment,


 


then any Lender who does not and continues not to
consent or agree to such waiver or amendment shall be deemed a “Non-Consenting Lender”.


 


35.5                        Disenfranchisement
of Defaulting Lenders


 


(a)                                 For
so long as a Defaulting Lender has any Available Commitment, in ascertaining
the Majority Lenders or whether any given percentage (including, for the avoidance
of doubt, unanimity) of the Total Commitments has been obtained to approve any
request for a consent, waiver, amendment or other vote under the Finance
Documents, that Defaulting Lender’s Commitments will be reduced by the amount
of its Available Commitments.


 


(b)                                 For
the purposes of this Clause 35.5, the Agent may assume that the following
Lenders are Defaulting Lenders:


 


(i)                                     any
Lender which has notified the Agent that it has become a Defaulting Lender; and


 


(ii)                                  any
Lender in relation to which it is aware that any of the events or circumstances
referred to in paragraphs (a), (b) or (c) of the definition of “Defaulting Lender” has occurred,


 


unless it has
received notice to the contrary from the Lender concerned (together with any
supporting evidence reasonably requested by the Agent) or the Agent is
otherwise aware that the Lender has ceased to be a Defaulting Lender.


 


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35.6        Replacement of a Defaulting Lender


 


(a)           The Company may, at any time after a Lender has become
and continues to be a Defaulting Lender, by giving 15 Business Days’ prior
written notice to the Agent and such Lender:


 


(i)            replace such Lender by requiring such
Lender to (and such Lender shall) transfer pursuant to Clause 24 (Changes to the Lenders) all (and not part only) of its
rights and obligations under this Agreement; and


 


(ii)           require such Lender to (and such Lender
shall) transfer pursuant to Clause 24 (Changes to the Lenders)
all (and not part only) of the undrawn Commitment of the Lender,


 


to a Lender or other bank,
financial institution, trust, fund or other entity (a “Replacement
Lender”) selected by the Company, and which (unless the Agent is an
Impaired Agent) is acceptable to the Agent (acting reasonably), which confirms
its willingness to assume and does assume all the obligations or all the
relevant obligations of the transferring Lender (including the assumption of
the transferring Lender’s participations or unfunded participations (as the
case may be) on the same basis as the transferring Lender) for a purchase price
in cash payable at the time of transfer equal to the outstanding principal
amount of such Lender’s participation in the outstanding Utilisations and all
accrued interest and fees, Break Costs and other amounts payable in relation
thereto under the Finance Documents.


 


(b)           Any transfer of rights and obligations of a Defaulting
Lender pursuant to this Clause 35.6 shall be subject to the following
conditions:


 


(i)            the Company shall have no right to replace
the Agent or Security Agent;


 


(ii)           neither the Agent nor the Defaulting Lender
shall have any obligation to the Company to find a Replacement Lender;


 


(iii)          the transfer must take place no later than
60 days after the notice referred to in paragraph (a) above and in
accordance with Clause 24 (Changes to the Lenders);
and


 


(iv)           in no event shall the Defaulting Lender be
required to pay or surrender to the Replacement Lender any of the fees received
by the Defaulting Lender pursuant to the Finance Documents.


 


36.          COUNTERPARTS


 


Each Finance Document may
be executed in any number of counterparts, and this has the same effect as if
the signatures on the counterparts were on a single copy of the Finance
Document.


 


37.          PLACE OF PERFORMANCE


 


37.1        Performance


 


The Parties shall perform
their obligations under or in connection with the Finance Documents 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
the Finance Documents within the Republic of Austria shall not constitute
discharge or 


 


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performance of such obligation
or liability. For the purposes of the above, “Place
of Performance” means:


 


(a)           in relation to any payment by an Obligor or a Finance
Party under or in connection with a Finance Document, the place at which such
payment is to be made pursuant to Clause 29.1 (Payments
to the Agent); and


 


(b)           in relation to any other obligation or liability under
or in connection with the Agreement, the premises of the Agent in London or any
other place outside of Austria as the Agent specifies from time to time.


 


37.2        Delivery of notices by Agent


 


Notwithstanding Clause 31
(Notices) and Clause 37.1 (Performance) but subject to Clause 13.5 (Stamp Taxes) and paragraph (f) of
Clause 31.5 (Electronic communication),
each of the Obligors agrees that any notice or document delivered to it under
or in connection with the Finance Documents shall be sent to an address located
outside of Austria which, unless it notifies the Agent otherwise, shall be 154,
Chaussee de la Hulpe, B-1170 Brussels, (Watermael-Boitsfort), Belgium.


 


38.          CONFIDENTIALITY


 


38.1        Confidential Information


 


Each Finance Party agrees
to keep all Confidential Information confidential and not to disclose it to
anyone, save to the extent permitted by Clause 38.2 (Disclosure of Confidential Information), and to ensure that
all Confidential Information is protected with security measures and a degree
of care that would apply to its own confidential information.


 


38.2        Disclosure of Confidential Information


 


Any Finance Party may
disclose:


 


(a)           to any of its Affiliates and any of its or their
officers, directors, employees, professional advisers, auditors, partners and
Representatives such Confidential Information as that Finance Party shall
consider appropriate if any person to whom the Confidential Information is to be
given pursuant to this sub paragraph (a) is informed in writing of its
confidential nature and that some or all of such Confidential Information may
be price-sensitive information except that there shall be no such requirement
to so inform if the recipient is subject to professional obligations to
maintain the confidentiality of the information or is otherwise bound by
requirements of confidentiality in relation to the Confidential Information;


 


(b)           to any person:


 


(i)            to (or through) whom it assigns or transfers
(or may potentially assign or transfer) all or any of its rights and/or
obligations under one or more Finance Documents and to any of that person’s
Affiliates, Related Funds, Representatives and professional advisers;


 


(ii)           with (or through) whom it enters into (or
may potentially enter into), whether directly or indirectly, any
sub-participation in relation to, or any other transaction under which payments
are to be made or may be made by reference to, one or more Finance Documents
and/or one or more Obligors and to any of that person’s Affiliates, Related
Funds, Representatives and professional advisers;


 


121

















 


(iii)          appointed by any Finance Party or by a
person to whom sub paragraph (b)(i) or (b)(ii) above applies to
receive communications, notices, information or documents delivered pursuant to
the Finance Documents on its behalf (including, without limitation, any person
appointed under paragraph (d) of Clause 26.14 (Relationship
with the Lenders));


 


(iv)           who invests in or otherwise finances (or
may potentially invest in or otherwise finance), directly or indirectly, any
transaction referred to in sub paragraph (b)(i) or (b)(ii) above;


 


(v)            to whom information is required or
requested to be disclosed by any governmental, banking, taxation or other
regulatory authority or similar body, the rules of any relevant stock
exchange or pursuant to any applicable law or regulation;


 


(vi)           to whom or for whose benefit that Finance
Party charges, assigns or otherwise creates Security (or may do so) pursuant to
Clause 24.6 (Security over Lenders’ rights);


 


(vii)          required in connection with, and for the
purposes of, any litigation, arbitration, administrative or other
investigations, proceedings or disputes;


 


(viii)         who is a Party; or


 


(ix)           with the consent of the Company;


 


in each case, such Confidential
Information as that Finance Party shall consider appropriate if:


 


(A)           in relation to sub paragraphs (b)(i), (b)(ii) and
(b)(iii) above, the person to whom the Confidential Information is to be
given has entered into a Confidentiality Undertaking except that there shall be
no requirement for a Confidentiality Undertaking if the recipient is a
professional adviser and is subject to professional obligations to maintain the
confidentiality of the Confidential Information;


 


(B)           in relation to sub paragraph (b)(iv) above, the
person to whom the Confidential Information is to be given has entered into a
Confidentiality Undertaking or is otherwise bound by requirements of confidentiality
in relation to the Confidential Information they receive and is informed that
some or all of such Confidential Information may be price-sensitive
information; or


 


(C)          in relation to sub paragraphs (b)(v), (b)(vi) and
(b)(vii) above, the person to whom the Confidential Information is to be
given is informed of its confidential nature and that some or all of such
Confidential Information may be price-sensitive information except that there
shall be no requirement to so inform if, in the opinion of that Finance Party,
it is not practicable so to do in the circumstances;


 


(c)           to any person appointed by that Finance Party or by a
person to whom sub paragraph (b)(i) or (b)(ii) above applies to
provide administration or settlement services in respect of one or more of the
Finance Documents including without limitation, in 


 


122

















 


relation to the trading of participations
in respect of the Finance Documents, such Confidential Information as may be
required to be disclosed to enable such service provider to provide any of the
services referred to in this paragraph (c) if the service provider to whom
the Confidential Information is to be given has entered into a confidentiality
agreement substantially in the form of the LMA Master Confidentiality
Undertaking for Use With Administration/Settlement Service Providers or such
other form of confidentiality undertaking agreed between the Company and the
relevant Finance Party;


 


(d)           to any rating agency (including its professional
advisers) such Confidential Information as may be required to be disclosed to
enable such rating agency to carry out its normal rating activities in relation
to the Finance Documents and/or the Obligors if in relation to sub-paragraphs
(b)(i) and (b)(ii) above, the rating agency to whom the Confidential
Information is to be given is informed of its confidential nature and that some
or all of such Confidential Information may be price-sensitive information.


 


(e)           For the purposes only of and under the conditions set
forth in this Clause 38.2, the Obligors waive any rights they may have in
respect of banking secrecy pursuant to the Austrian Banking Act 1993, Austrian
law gazette 1993/532, as amended from time to time (Bankwesengesetz 1993, BGBI 1993/532 in der jeweils gültigen Fassung).


 


38.3        Entire agreement


 


This Clause 38 (Confidentiality) constitutes the entire
agreement between the Parties in relation to the obligations of the Finance
Parties under the Finance Documents regarding Confidential Information and
supersedes any previous agreement, whether express or implied, regarding
Confidential Information.


 


38.4        Inside information


 


Each of the Finance
Parties acknowledges that some or all of the Confidential Information is or may
be price-sensitive information and that the use of such information may be
regulated or prohibited by applicable legislation including securities law
relating to insider dealing and market abuse and each of the Finance Parties
undertakes not to use any Confidential Information for any unlawful purpose.


 


38.5        Notification of disclosure


 


Each of the Finance
Parties agrees (to the extent permitted by law and regulation) to inform the
Company:


 


(a)           of the circumstances of any disclosure of Confidential
Information made pursuant to sub paragraph (b)(v) of Clause 38.2 (Disclosure of Confidential Information)
except where such disclosure is made to any of the persons referred to in that
paragraph during the ordinary course of its supervisory or regulatory function;
and


 


(b)           upon becoming aware that Confidential Information has
been disclosed in breach of this Clause 38 (Confidentiality).


 


38.6        Continuing obligations


 


The obligations in this
Clause 38 (Confidentiality) are
continuing and, in particular, shall survive and remain binding on each Finance
Party for a period of twelve months from the earlier of: (a) the date on
which all amounts payable by the Obligors under or in connection 


 


123

















 


with this Agreement have
been paid in full and all Commitments have been cancelled or otherwise ceased
to be available and (b) the date on which such Finance Party otherwise
ceases to be a Finance Party.


 


39.          GOVERNING LAW


 


This Agreement and any
non-contractual obligations arising out of or in connection with it are
governed by English law.


 


40.          ENFORCEMENT


 


40.1        Jurisdiction of English Courts


 


(a)           The courts of England have exclusive jurisdiction to
settle any dispute arising out of or in connection with this Agreement
(including a dispute relating to the existence, validity or termination of this
Agreement) or any non-contractual obligation arising out of or in connection
with this Agreement (a “Dispute”).


 


(b)           The Parties agree that the courts of England are the
most appropriate and convenient courts to settle Disputes and accordingly no
Party will argue to the contrary.


 


(c)           This Clause 40.1 is for the benefit of the Finance
Parties and Secured Parties only. As a result, no Finance Party or Secured
Party shall be prevented from taking proceedings relating to a Dispute (“Proceedings”) in any other courts with
jurisdiction. To the extent allowed by law, the Finance Parties and Secured
Parties may take concurrent proceedings in any number of jurisdictions.


 


40.2        Service of process


 


(a)           Without prejudice to any other mode of service allowed
under any relevant law, each Obligor (other than an Obligor incorporated in
England and Wales):


 


(i)            irrevocably appoints Sappi (UK) Sales
Office Ltd as its agent for service of process in relation to any proceedings
before the English courts in connection with any Finance Document; and


 


(ii)           agrees that failure by a process agent to
notify such Obligor of the process will not invalidate the proceedings
concerned.


 


(b)           If any person appointed to act as agent for service of
process is unable for any reason to act as agent for service of process, the
Company (on behalf of all the Obligors) must immediately (and in any event
within 15 Business Days of such event taking place) appoint another agent on
terms acceptable to the Agent.  Failing
this, the Agent may appoint another agent for this purpose.


 


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


 


124

















 


SCHEDULE
1


 


The
Original Parties


 


Part I

The Original Obligors


 


	
  Original
  Borrowers

  	
   

  	
  Registration number (or equivalent, if any)

  
	
   

  	
   

  	
   

  
	
  Sappi Papier Holding
  GmbH

  	
   

  	
  FN167931h (Austria)

  
	
   

  	
   

  	
   

  
	
  Sappi International SA

  	
   

  	
  RPM Brussels
  0449.887.582 (Belgium)

  



 


	
  Original
  Guarantors

  	
   

  	
  Registration number (or equivalent, if any)

  
	
   

  	
   

  	
   

  
	
  Sappi Limited

  	
   

  	
  1936/008963/06 (South
  Africa)

  
	
   

  	
   

  	
   

  
	
  Sappi Papier Holding
  GmbH

  	
   

  	
  FN167931h (Austria)

  
	
   

  	
   

  	
   

  
	
  Sappi International SA

  	
   

  	
  RPM Brussels
  0449.887.582 (Belgium)

  
	
   

  	
   

  	
   

  
	
  SD Warren Company

  	
   

  	
  878041 (Pennsylvania)

  
	
   

  	
   

  	
   

  
	
  SDW Holdings Corporation

  	
   

  	
  2441157 (Delaware)

  
	
   

  	
   

  	
   

  
	
  Sappi Cloquet LLC

  	
   

  	
  3498035 (Delaware)

  
	
   

  	
   

  	
   

  
	
  Sappi Lanaken NV

  	
   

  	
  RPR
  Tongeren 0420.732.352 (Belgium)

  
	
   

  	
   

  	
   

  
	
  Sappi Deutschland GmbH

  	
   

  	
  HRB59586 registered with
  the Commercial Register of Hanover (Germany)

  
	
   

  	
   

  	
   

  
	
  Sappi Deutschland
  Holding GmbH

  	
   

  	
  HRB110140 registered
  with the Commercial register of Hildesheim (Germany)

  
	
   

  	
   

  	
   

  
	
  Sappi Lanaken Press
  Paper NV

  	
   

  	
  RPR
  Tongeren 0426.966.779 (Belgium)

  
	
   

  	
   

  	
   

  
	
  Sappi Pulp Asia Limited

  	
   

  	
  0925340 (Hong Kong)

  
	
   

  	
   

  	
   

  
	
  Sappi Nijmegen BV

  	
   

  	
  10041104 (Netherlands)

  
	
   

  	
   

  	
   

  
	
  Sappi Alfeld GmbH

  	
   

  	
  HRB110356 registered
  with the Commercial Register of Hildesheim (Germany)

  
	
   

  	
   

  	
   

  
	
  Sappi Maastricht BV

  	
   

  	
  14631722 (Netherlands)

  
	
   

  	
   

  	
   

  
	
  Sappi Netherlands BV

  	
   

  	
  14631721 (Netherlands)

  
	
   

  	
   

  	
   

  
	
  Sappi Ehingen GmbH

  	
   

  	
  HRB490647 registered
  with the Commercial Register of Ulm (Germany)

  
	
   

  	
   

  	
   

  
	
  Sappi Europe SA

  	
   

  	
  RPM
  Brussels 0449.654.386 (Belgium)

  
	
   

  	
   

  	
   

  
	
  Sappi Gratkorn GmbH

  	
   

  	
  FN 69000x (Austria)

  



 


125

















 


	
  Original
  Guarantors

  	
   

  	
  Registration number (or equivalent, if any)

  
	
   

  	
   

  	
   

  
	
  Sappi MagnoStar GmbH

  	
   

  	
  FN 140031d (Austria)

  
	
   

  	
   

  	
   

  
	
  Sappi Austria
  Produktions - GmbH & Co. KG

  	
   

  	
  FN 223882p (Austria)

  
	
   

  	
   

  	
   

  
	
  Sappi Stockstadt GmbH

  	
   

  	
  HRB8118 registered with
  the Commercial Register of Aschaffenburg (Germany)

  
	
   

  	
   

  	
   

  
	
  Sappi Finland I Oy

  	
   

  	
  2219145-0 (Finland)

  



 


126

















 


Part II

The Original Lenders


 


	
  Original Lender

  	
   

  	
  Commitment (Euro)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ABN AMRO Bank NV, Belgian Branch

  	
   

  	
  25,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Citibank, N.A. London Branch

  	
   

  	
  40,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  HSBC Bank plc

  	
   

  	
  40,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  J.P. Morgan Europe Limited

  	
   

  	
  50,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  KBC Bank Deutschland AG

  	
   

  	
  25,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Natixis

  	
   

  	
  24,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  UniCredit Bank Czech Republic, a.s.

  	
   

  	
  5,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  209,000,000

  	
   

  



 


127














 


SCHEDULE 2


 


Conditions Precedent


 


Part I  

Conditions Precedent to Initial Utilisation


 


1.             Obligors and Non-Obligor Chargors


 


(a)           A
copy of the constitutional documents of each Original Obligor, including, in
the case of:


 


(i)            an
Austrian Obligor, a copy of the articles of association (Gesellschaftsvertrag)
and a copy of an extract from the commercial register (Firmenbuch);


 


(ii)           a
Belgian Obligor, up-to-date coordinated articles of association, a KBO
Certificate and a non-bankruptcy certificate (both dated not earlier than 15
Business Days prior to the date of this Agreement);


 


(iii)          a
Dutch Obligor, its deed of incorporation, its articles of association and a
certified extract from the trade register;


 


(iv)           a Finnish Guarantor, a certified copy
of the articles of association and a certified extract from the trade register,
each dated not earlier than seven days prior to the date of this Agreement;


 


(v)            a Hong Kong Guarantor, a copy of the memorandum and articles of
association, a copy of the certificate of incorporation and a copy of any
certificate of change of name;


 


(vi)           a German Guarantor (x) an extract from the Commercial Register (Handelsregister) (dated no earlier than 10 calendar days
prior to the date of this Agreement), certified by the competent Commercial
Register; and (y) a copy of the current articles of association (Gesellschaftsvertrag) certified by the competent Commercial
Registry (in case of a corporation) or by a director of the relevant Original
Obligor (in case of a partnership) and (z) the current shareholders’ list
as filed with the Commercial Register; and


 


(vii)          to the extent applicable, any Original Obligor established in any other
jurisdiction, the relevant local law equivalent.


 


(b)           A
copy of a resolution of the board of directors of each Original Obligor (other
than a German Guarantor) and/or
equivalent body under the respective applicable law of each Original Obligor
(which for a German Guarantor is a shareholders’ resolution):


 


(i)            approving the terms of, and the
transactions contemplated by, the Finance Documents to which it is a party and
resolving that it execute, deliver and perform the Finance Documents to which
it is a party and (in respect of the Belgian Obligor) setting out the reasons
why the board of directors of the Belgian Obligor consider that the entry into
the Finance Documents to which it is a party, and in particular the assumption
of its guarantee obligations in accordance with Clause 18 (Guarantee
and Indemnity) of this Agreement, is of benefit to the Belgian Obligor;


 


128

















 


(ii)           authorising a specified person or
persons to execute the Finance Documents, to which it is a party on its behalf;


 


(iii)          authorising a specified person or
persons, on its behalf, to sign and/or despatch all documents and notices
(including, if relevant, any Utilisation Request) to be signed and/or
despatched by it under or in connection with the Finance Documents to which it
is a party; and


 


(iv)           in the case of an Obligor other than
SISA, authorising SISA to act as its agent in connection with the Finance
Documents.


 


(c)           A copy of a resolution signed by all
the holders of the issued shares in each Original Obligor (except the Company,
any Belgian Guarantor, any US Guarantor and any German Guarantor), approving
the terms of, and the transactions contemplated by, the Finance Documents to
which the Original Obligor is a party.


 


(d)           A resolution of the shareholders
meeting or a written resolution of all shareholders of the Belgian Obligor
approving the provisions of the Finance Documents requiring an early repayment
in the case of a change of control over the Belgian Obligor, together with
evidence that an extract of such resolution has been or will be filed with the
clerk of the commercial court of the judicial district of the Belgian Obligor
in accordance with Article 556 of the Belgian Company Code within 15
Business Days from the date of this Agreement.


 


(e)           A copy of a resolution of the
supervisory board (Aufsichtsrat)
and/or advisory board (Beirat) (as
applicable) of each Original Obligor incorporated in Austria approving the
terms of, and transactions contemplated by, the Finance Documents to which it
is a party and resolving that it executes the Finance Documents to which it is
a party.


 


(f)            A copy of a resolution of the
supervisory board (if any) of each Dutch Obligor approving the terms of, and
transactions contemplated by, the Finance Documents to which it is a party and
resolving that it executes the Finance Documents to which it is a party.


 


(g)           A copy of a resolution of the
supervisory board (Aufsichtsrat)
(if any and if required pursuant to the articles of association or applicable
law) or advisory board (Beirat) (if any
and if required pursuant to the articles of association or applicable law) of
each Original Obligor incorporated in Germany approving the terms of, and
transactions contemplated by, the Finance Documents to which it is a party and
resolving that it executes the Finance Documents to which it is a party.


 


(h)           A copy of a request for advice
addressed to the works council (if any) of each Dutch Obligor and a copy of the
letter of such works council (if any) evidencing that such works council (if
any) has given positive advice in respect of the Finance Documents and the transactions
contemplated thereby


 


(i)            A certificate of an authorised
signatory of the Company confirming that borrowing or guaranteeing, as
appropriate, the Total Commitments would not cause any borrowing, guaranteeing
or similar limit binding on any Original Obligor to be exceeded.


 


(j)            A certificate of an authorised
signatory of, each Original Obligor certifying that each copy document relating
to it specified in this Part I Schedule 2 is correct, complete and in full
force and effect and has not been amended or superseded as at a date no earlier
than the Signing Date.


 


129

















 


(k)           A certificate of an authorised
signatory of each Original Obligor including a specimen of the signature of
each person (i) authorised by the resolution referred to in paragraph (b) above
or (ii) of a person being generally authorised to execute the Finance
Documents to which it is party on its behalf.


 


(l)            In respect of each of Sappi Schweiz
AG and Sappi Trading Pulp AG:


 


(i)            a certified copy of board resolutions
acknowledging and agreeing to (1) the pledge over its shares, (2) the
pledge’s registration in the shareholders’ registers and (3) the
registration of an acquiror of the shares upon enforcement of the share
pledge agreement as shareholder in the shareholders’ register of Sappi
Schweiz AG or Sappi Trading Pulp AG, as relevant; and


 


(ii)           certified copies of the correct
and up to date excerpts from the commercial register and the articles of
association.


 


(m)          In respect of each Non-Obligor
Chargor a party to a Transaction Security Document listed in Schedule 15 (Transaction Security Documents), equivalent documentation to
that listed for Original Obligors in paragraphs (c) and, in the case of
Sappi Esus Beteiligungsverwaltungs GmbH, paragraph (e) above.


 


2.             Finance Documents


 


The
following documents, executed by the parties thereto:


 


(a)           this Agreement;


 


(b)           the Mandate Letter;


 


(c)           the Fee Letters;


 


(d)           the Intercreditor Agreement;


 


(e)           at least two originals of each
Transaction Security Document executed by the relevant Original Obligors and
Non-Obligor Chargors;


 


(f)            a copy of the following notices
required to be sent under the Transaction Security Documents executed by the
relevant Original Obligors and Non-Obligor Chargors and  duly
acknowledged by the addressee:


 


(i)            in respect of the share pledge agreements:


 


(A)           notification of Sappi Papier Holding GmbH of the pledge over its shares;


 


(B)           acknowledgement of the notification in (A) above  from Sappi Papier Holding GmbH to the Security
Agent;


 


(C)          notification of Sappi Gratkorn GmbH of the pledge over its shares;


 


(D)          acknowledgement of the notification in (C) above from Sappi
Gratkorn GmbH to the Security Agent;


 


(E)           notification of Sappi MagnoStar GmbH of the pledge over its shares;


 


130

















 


(F)           acknowledgement of the notification in (E) above from Sappi
MagnoStar GmbH to the Security Agent;


 


(G)          notification of Sappi Austria Produktions-GmbH & Co. KG of the
pledge over its partnership interests;


 


(H)          acknowledgement of the notification in (G) above from Sappi Austria
Produktions-GmbH & Co. KG to the Security Agent;


 


(I)            notification to Sappi Finland I Oy of the pledge over its shares;


 


(J)           acknowledgement of the notification in (I) above from Sappi Finland
I Oy to the Security Agent;


 


(K)           notification to Sappi Manufacturing (Proprietary) Limited of the pledge
over its shares;


 


(L)           acknowledgement of the notification in (K) above from Sappi
Manufacturing (Proprietary) Limited to Sappi Limited and the Security Agent;


 


(M)          declaration of pledge to be provided by each Belgian Original Obligor
with respect to the pledge over its shares;


 


(N)          correct
and up to date shareholders’ registers for Sappi Schweiz AG and Sappi
Trading Pulp AG acknowledging that the shares of the relevant company have
been pledged in favour of the Security Agent and the other Pledgees under
the share pledge agreement;


 


(ii)           in respect of the intercompany loan pledges
and assignments:


 


(A)           notification of debtors (Drittschuldnerverständigungen)
with respect to the pledge of receivables by Sappi Papier Holding GmbH;


 


(B)           acknowledgement of the notification of debtors (Drittschuldnerverständigungen)
with respect to the pledge of receivables by Sappi Papier Holding
GmbH;


 


(C)          notification of debtors (Drittschuldnerverständigungen)
with respect to the pledge of receivables by Sappi Austria Produktions-GmbH &
Co KG;


 


(D)          acknowledgement of the notification of debtors (Drittschuldnerverständigungen)
with respect to the pledge of receivables by Sappi Austria
Produktions-GmbH & Co KG;


 


(E)           notification of debtors with respect to the Belgian law pledge relating
to intercompany loans granted by certain Belgian Obligors and other Group
Companies;


 


(F)           notification of debtor with respect to the English law assignment of
intercompany loans granted by Sappi Papier Holding GmbH;


 


(G)          notification of debtor with respect to the English law assignment of
intercompany loans granted by Sappi Pulp Asia Limited;


 


131

















 


(H)          notification of debtor with respect to the English law assignment of
intercompany loans granted by Sappi Finland I Oy; and


 


(I)            notification of debtors with respect to the Dutch law pledge relating to
intercompany loans granted by Sappi Netherlands B.V.;


 


(g)           where
applicable, a copy of all share certificates, transfers and stock transfer
forms or equivalent duly executed by the relevant Original Obligors and
Non-Obligor Chargors in blank in relation to the assets subject to or expressed
to be subject to the Transaction Security and other documents (including
documents of title) to be provided under the Transaction Security Documents;
and


 


(h)           a shareholders’ consent resolution of
the pledged company in respect of each of the following share pledges:


 


(i)            the pledge of shares in Sappi
Deutschland GmbH;


 


(ii)           the pledge of shares in Sappi Deutschland Holding GmbH;


 


(iii)          the pledge of shares in Sappi Alfeld GmbH;


 


(iv)           the pledge of shares in Sappi Ehingen GmbH; and


 


(v)            the pledge of shares in Sappi Stockstadt GmbH.


 


3.             Legal opinions


 


Executed
copies of the following legal opinions, each addressed to the Mandated Lead
Arrangers, the Agent and the Original Lenders and capable of being relied upon
by any persons to become Lenders pursuant to primary syndication of the
Facility:


 


(a)           legal opinion of Latham &
Watkins, legal advisers to the Mandated Lead Arrangers and the Agent in
England, substantially in the form distributed to the Original Lenders prior to
signing this Agreement;


 


(b)           legal opinion of Lydian, legal
advisers to the Mandated Lead Arrangers and the Agent in Belgium, substantially
in the form distributed to the Original Lenders prior to signing this
Agreement;


 


(c)           legal opinion (enforceability) of
Schönherr Rechtsanwälte GmbH, legal advisers to the Mandated Lead Arrangers and
the Agent in Austria, substantially in the form distributed to the Original
Lenders prior to signing this Agreement;


 


(d)           legal opinion of (capacity) of
Freshfields Austria, legal advisers to the Company in Austria, substantially in
the form distributed to the Original Lenders prior to signing this Agreement;


 


(e)           legal opinion of Werksmans, legal
advisers to the Mandated Lead Arrangers and the Agent in South Africa,
substantially in the form distributed to the Original Lenders prior to signing
this Agreement;


 


(f)            legal opinion of Niederer Kraft &
Frey AG, legal advisers to the Mandated Lead Arrangers and the Agent in
Switzerland, substantially in the form distributed to the Original Lenders
prior to signing this Agreement;


 


132

















 


(g)           legal opinion (enforceability) of
Latham & Watkins, Germany, legal advisers to the Mandated Lead
Arrangers and the Agent in Germany substantially in the form distributed to the
Original Lenders prior to signing this Agreement;


 


(h)           legal opinion (capacity) of
Linklaters, Germany, legal advisers to the Company in Germany, substantially in
the form distributed to the Original Lenders prior to the signing of this
Agreement;


 


(i)            legal opinion of Latham &
Watkins, Hong Kong legal advisers to the Mandated Lead Arrangers and the Agent
in Hong Kong substantially in the form distributed to the Original Lenders
prior to signing this Agreement;


 


(j)            legal opinion (enforceability) of
Latham & Watkins, New York, legal advisers to the Mandated Lead
Arrangers and the Agent in New York substantially in the form distributed to
the Original Lenders prior to signing this Agreement;


 


(k)           legal opinion (capacity in relation
to SD Warren Company) of Morgan Lewis & Bockius LLP, legal advisers to
the Company in Pennsylvania, substantially in the form distributed to the
Original Lenders prior to signing this Agreement;


 


(l)            legal opinion (enforceability of
local law US Security Documents) of Leonard, Street and Deinard, legal advisers
to the Company in Minnesota, substantially in the form distributed to the
Original Lenders prior to signing this Agreement;


 


(m)          legal opinion (enforceability of
local law US Security Documents) of Pierce Atwood LLP, legal advisers to the
Company in Maine, substantially in the form distributed to the Original Lenders
prior to signing this Agreement;


 


(n)           Delaware law legal opinion (capacity
in relation to Sappi Cloquet LLC and SDW Holdings Corporation) of Cravath,
Swaine & Moore LLP, legal advisers to the Company in Delaware,
substantially in the form distributed to the Original Lenders prior to signing
this Agreement;


 


(o)           legal opinion of Castrén &
Snellman Attorneys Ltd, legal advisers to the Mandated Lead Arrangers and the
Agent in Finland substantially in the form distributed to the Original Lenders
prior to signing this Agreement; and


 


(p)           legal opinion of NautaDutilh, legal
advisers to the Mandated Lead Arrangers and the Agent in The Netherlands
substantially in the form distributed to the Original Lenders prior to signing
this Agreement.


 


4.             Reports


 


The
PwC Report, together with confirmation that such report can be relied up by the
Agent and the Original Lenders and any persons to become Lenders pursuant to
primary syndication of the Facility.


 


5.             Other documents and evidence


 


(a)           Evidence that the process agent
referred to in Clause 40.2 (Service of process),
if not an Original Obligor has accepted its appointment.


 


(b)           The Group Structure Chart which shows
the Group as at the Signing Date.


 


(c)           A copy, certified by an authorised
signatory of the Company to be a true copy, of the Original Financial
Statements of each Original Obligor.


 


133

















 


(d)           A copy, certified by an authorised signatory
of the Company to be a true copy of the Base Case Model.


 


(e)           Evidence that the fees, costs and
expenses then due from the Company pursuant to Clause 12 (Fees)
and Clause 17 (Costs and expenses) have been or
will be paid on the Signing Date.


 


(f)            Evidence that the Company has
received commitments from the banks (including any commitments provided by the
Mandated Lead Arrangers (or their Affiliates)), to provide the new OeKB
Facility in an aggregate amount of not less than Euro 400,000,000 and having a
final maturity date in 2014 (and which may amortise from December 2010 in
the manner agreed by the Agent).


 


(g)           A certificate from the Company duly
executed by an authorised signatory setting out the name and relevant details
of each Material Subsidiary and for each Excluded Subsidiary:


 


(i)            the earnings before interest, tax,
depreciation and amortisation (calculated on the same basis as EBITDA, as
defined in Clause 21 (Financial Covenants)) of such Excluded Subsidiary as a
percentage of the consolidated EBITDA (as defined in Clause 21 (Financial Covenants) of the Group; and


 


(ii)           the gross assets of such Excluded
Subsidiary as a percentage of the consolidated gross assets of the Group.


 


(h)           “Know your customer” documentations
and checks in respect of the Company (including, if necessary, the directors
and shareholders thereof) and the Obligors.


 


(i)            Either:


 


(i)            (A)          evidence
of an additional Euro 150,000,000 (or its equivalent in any other currency or
currencies) being made available after 31 March 2009 to the Group by way
of receivables securitisation and other long term financing; and


 


(B)           evidence that the Facility and the
OeKB Facility in aggregate will raise no less than Euro 600,000,000 (or its
equivalent in any other currency or currencies); or


 


(ii)                            evidence that the
Facility, the OeKB Facility and other long term financing or receivables
financing in each case raised after 31 March 2009 in aggregate will
raise no less than Euro 850,000,000 (or its equivalent in any other currency or
currencies) provided that in satisfaction of this condition, no more than Euro
150,000,000 (or its equivalent in any other currency or currencies) shall be
contributed by way of receivables financing.


 


(j)            Evidence of exchange control approval
of the Exchange Control Department of the South African Reserve Bank and
unconditional approval from the South African Reserve Bank for (i) the New
Financings and (ii) all the terms contained in the Finance Documents and
the other documents relating to the New Financings (including without
limitation all pricing and fees and the permission for all affected Obligors to
conclude and perform their obligations under such documents).


 


(k)           Evidence that the Existing RCF
Facility has been, or will be, cancelled and has been or will be prepaid on the
Signing Date.


 


134

















 


(l)            Evidence that the Vendor Loan Notes
have been, or will be, repaid on the Signing Date.


 


(m)          Evidence that all Required Amendments
have been effected and copies of each executed amendment affecting the Required
Amendments as referred to in Schedule 13 (Required Amendments)
have been delivered to the Agent.


 


(n)           Evidence that all Required Accessions
have been effected and copies of each executed accession letter and/or certificate
as referred to in Schedule 14 (Required Accessions and
Consents) have been delivered to the Agent.


 


(o)           Evidence that all Required Consents
have been granted and copies of each executed consent as referenced to in
Schedule 14 (Required Accessions and Consents)
have been delivered to the Agent.


 


135














 


Part II

Conditions Precedent Required to be 

Delivered by an Additional Obligor


 


1.             An Accession Letter, duly executed by
the Additional Obligor and the Company.


 


2.             A copy of the constitutional
documents of the Additional Obligor, including, in the case of:


 


(a)           an
Austrian Obligor, a copy of the articles of association (Gesellschaftsvertrag),
and a copy of an extract from the commercial register (Firmenbuch),


 


(b)           a Belgian
Obligor, up-to-date coordinated articles of association, a KBO Certificate and
a non-bankruptcy certificate (both dated not earlier than 15 Business Days
prior to the date of the Accession Letter);


 


(c)           a Dutch
Obligor, its deed of incorporation, its articles of association and a certified
extract from the trade register;


 


(d)           a Finnish
Guarantor, a certified copy of the articles of association and a certified
extract from the trade register, each dated not earlier than seven days prior
to the date of the Accession Letter;


 


(e)           a Hong Kong Guarantor, a copy of the memorandum and articles of
association, a copy of the certificate of incorporation and a copy of any
certificate of change of name;


 


(f)            a German Guarantor (x) an extract from the Commercial Register (Handelsregister) (dated no earlier than 10 calendar days
prior to the date of the Accession Letter), certified by the competent
Commercial Register; and (y) a copy of the current articles of association
(Gesellschaftsvertrag) certified by the
competent Commercial Registry (in case of a corporation) or by a director of
the relevant Original Obligor (in case of a partnership) and (z) the
current shareholders’ list as filed with the Commercial Register; and


 


(g)           to the extent applicable, any Additional Obligor established in any
other jurisdiction, the relevant local law equivalent.


 


3.             A copy of a resolution of the board
of directors of each Additional Obligor (other than an Additional Obligor
incorporated in Germany) and/or
equivalent body under the respective applicable law of each Additional Obligor
(which for an Additional Obligor incorporated in Germany is a shareholders’
resolution):


 


(a)           approving the terms of, and the
transactions contemplated by, the Finance Documents to which it is a party and
resolving that it execute, deliver and perform the Finance Documents to which
it is a party and (in respect of a Belgian Obligor) setting out the reasons why
the board of directors of the Belgian Obligor consider that the entry into the
Finance Documents to which it is a party, and in particular the assumption of
its guarantee obligations in accordance with Clause 18 (Guarantee
and indemnity) of this Agreement, is of benefit to the Belgian
Obligor;


 


(b)           authorising a specified person or
persons to execute the Finance Documents to which it is a party on its behalf;


 


(c)           authorising a specified person or
persons, on its behalf, to sign and/or despatch all documents and notices
(including, if relevant, any Utilisation Request or Selection 


 


136

















 


Notice) to be signed and/or
despatched by it under or in connection with the Finance Documents to which it
is a party; and


 


(d)           in the case of an Obligor other than
the Company, authorising SISA to act as its agent in connection with the
Finance Documents.


 


4.             If applicable, a copy of a resolution
of the board of directors of the relevant company, establishing the committee
referred to in paragraph (3) above.


 


5.             If applicable, a copy of a resolution
signed by all the holders of the issued shares in the Additional Obligor,
approving the terms of, and the transactions contemplated by, the Finance
Documents to which the Additional Obligor is a party or, in the case of a
Belgian Obligor, a written resolution of all shareholders of the Belgian
Obligor approving the provisions of the Finance Documents requiring an early
repayment in the case of a change of control over the Belgian Obligor, together
with evidence that an extract of such resolution has been or will be filed with
the clerk of the commercial court of the judicial district of the Belgian
Obligor in accordance with Article 556 of the Belgian Company Code within
15 Business Days from the date of the Accession Letter.


 


6.             A copy of a resolution of the
supervisory board (Aufsichtsrat)
and/or advisory board (Beirat) (as
applicable) of each Additional Obligor incorporated in Austria approving the
terms of, and transactions contemplated by, the Finance Documents to which it
is a party and resolving that it executes the Finance Documents to which it is
a party


 


7.             A copy of a resolution of the
supervisory board (if any) of each Additional Obligor incorporated in The
Netherlands approving the terms of, and transactions contemplated by, the
Finance Documents to which it is a party and resolving that it executes the
Finance Documents to which it is a party.


 


8.             A copy of a resolution of the
supervisory board (Aufsichtsrat)
(if any and if required pursuant to the articles of association or applicable
law) or advisory board (Beirat) (if any
and if required pursuant to the articles of association or applicable law) of
each Additional Obligor incorporated in Germany approving the terms of, and
transactions contemplated by, the Finance Documents to which it is a party and
resolving that it executes the Finance Documents to which it is a party.


 


9.             A copy of a request for advice
addressed to the works council (if any) of each Additional Obligor incorporated
in The Netherlands and a copy of the letter of such works council (if any)
evidencing that such works council (if any) has given positive advice in
respect of the Finance Documents and the transactions contemplated thereby


 


10.          A certificate of the Additional
Obligor (signed by a director or other authorised signatory of such Additional
Obligor) confirming that borrowing or guaranteeing, as appropriate, the Total
Commitments would not cause any borrowing, guaranteeing or similar limit
binding on it to be exceeded.


 


11.          A certificate of an authorised
signatory of the Additional Obligor certifying that each copy document listed
in this Part II of Schedule 2 is correct, complete and in full force and
effect as at a date no earlier than the date of the Accession Letter.


 


12.          A copy of any other Authorisation or
other document, opinion or assurance which the Agent (acting reasonably)
considers to be necessary or desirable in connection with the entry into and
performance of the transactions contemplated by the Accession Letter or for the
validity and enforceability of any Finance Document to which the Additional
Obligor will become a Party.


 


137

















 


13.          If available, the latest audited
financial statements of the Additional Obligor.


 


14.          If the proposed Additional Obligor is
incorporated in a jurisdiction other than England and Wales, evidence that the
process agent specified in Clause 40.2 (Service of process),
if not an Obligor, has accepted its appointment in relation to the proposed
Additional Obligor.


 


15.          If the proposed Additional Obligor is
incorporated in The Republic of South Africa, any required approval of the
Exchange Control Department of the South African Reserve Bank.


 


16.          Any share security agreement (an “Additional Share Security Agreement”) to be executed by the
immediate Holding Company of the Additional Obligor in respect of the shares in
such Additional Obligor substantially on the same terms as the equivalent share
Security granted pursuant to the Transaction Security Documents.  Such Security shall not be required where it
would result in:


 


(a)           a breach of any corporate, benefit,
financial assistance, capital maintenance, fraudulent preference, thin
capitalisation rules or any other general statutory laws or regulations;


 


(b)           a significant risk of the officers of
the Group contravening their fiduciary duties, any legal prohibition and/or
incurring civil or criminal liability; or


 


(c)           costs or tax liabilities that, in the
opinion of the Agent (acting reasonably) will be disproportionate to the
benefit to be obtained by the beneficiaries of such Security,


 


provided that the proposed grantor of such Security
uses all reasonable endeavours (including the payment of reasonable fees, costs
and expenses if necessary) to overcome any such obstacle.


 


17.          Any notices or documents required to
be given or executed under the terms of any Additional Share Security
Agreement.


 


18.          The following legal opinions, each
addressed to the Agent, the Security Agent and the Lenders:


 


(a)           a legal opinion of the legal advisers
to the Agent in England, as to English law in the form distributed to the
Lenders prior to signing the Accession Letter; and


 


(b)           if the Additional Obligor is
incorporated in a jurisdiction other than England and Wales or is executing a
Finance Document which is governed by a law other than English law, a legal
opinion of the legal advisers to the Agent in the jurisdiction of its
incorporation or, as the case may be, the jurisdiction of the governing law of
that Finance Document (the “Applicable Jurisdiction”)
as to the law of the Applicable Jurisdiction and in the form distributed to the
Lenders prior to signing the Accession Letter.


 


138

















 


SCHEDULE
4 


 


Mandatory
Cost Formulae


 


1.             The Mandatory Cost is an addition to
the interest rate to compensate Lenders for the cost of compliance with (a) the
requirements of the Bank of England and/or the Financial Services Authority
(or, in either case, any other authority which replaces all or any of its
functions) or (b) the requirements of the European Central Bank.


 


2.             On the first day of each Interest
Period (or as soon as possible thereafter) the Agent shall calculate, as a
percentage rate, a rate (the “Additional
Cost Rate”) for each Lender, in accordance
with the paragraphs set out below.  The
Mandatory Cost will be calculated by the Agent as a weighted average of the
Lenders’ Additional Cost Rates (weighted in proportion to the percentage
participation of each Lender in the relevant Loan) and will be expressed as a
percentage rate per annum.


 


3.             The Additional Cost Rate for any
Lender lending from a Facility Office in a Participating Member State will be
the percentage notified by that Lender to the Agent.  This percentage will be certified by that
Lender in its notice to the Agent to be its reasonable determination of the
cost (expressed as a percentage of that Lender’s participation in all Loans
made from that Facility Office) of complying with the minimum reserve
requirements of the European Central Bank in respect of loans made from that
Facility Office.


 


4.             The Additional Cost Rate for any
Lender lending from a Facility Office in the United Kingdom will be calculated
by the Agent as follows:


 


(a)           in relation to a Sterling Loan:


 


 per cent. per annum


 


(b)           in relation to a Loan in any currency
other than Sterling:


 


 per cent. per annum.


 


Where:


 


A              is the percentage of Eligible Liabilities
(assuming these to be in excess of any stated minimum) which that Lender is
from time to time required to maintain as an interest free cash ratio deposit
with the Bank of England to comply with cash ratio requirements.


 


B             is the percentage rate of interest
(excluding the Margin and the Mandatory Cost and, if the Loan is an Unpaid Sum,
the additional rate of interest specified in paragraph (a) of Clause 9.3 (Default interest)) payable for the relevant Interest Period
on the Loan.


 


C             is the percentage (if any) of
Eligible Liabilities which that Lender is required from time to time to
maintain as interest bearing Special Deposits with the Bank of England.


 


D             is the percentage rate per annum
payable by the Bank of England to the Agent on interest bearing Special
Deposits.


 


139

















 


E             is designed to compensate Lenders for
amounts payable under the Fees Rules and is calculated by the Agent as
being the average of the most recent rates of charge supplied by the Reference
Banks to the Agent pursuant to paragraph 7 below and expressed in pounds per
£1,000,000.


 


5.             For the purposes of this Schedule:


 


(a)           “Eligible Liabilities”
and “Special Deposits” have the meanings
given to them from time to time under or pursuant to the Bank of England Act
1998 or (as may be appropriate) by the Bank of England;


 


(b)           “Fees Rules”
means the rules on periodic fees contained in the Financial Services
Authority Fees Manual or such other law or regulation as may be in force from
time to time in respect of the payment of fees for the acceptance of deposits;


 


(c)           “Fee Tariffs”
means the fee tariffs specified in the Fees Rules under the activity group
A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required
pursuant to the Fees Rules but taking into account any applicable discount
rate); and


 


(d)           “Tariff Base”
has the meaning given to it in, and will be calculated in accordance with, the
Fees Rules.


 


6.             In application of the above formulae,
A, B, C and D will be included in the formulae as percentages (i.e. 5 per cent.
will be included in the formula as 5 and not as 0.05).  A negative result obtained by subtracting D
from B shall be taken as zero.  The
resulting figures shall be rounded to four decimal places.


 


7.             If requested by the Agent, each
Reference Bank shall, as soon as practicable after publication by the Financial
Services Authority, supply to the Agent, the rate of charge payable by that
Reference Bank to the Financial Services Authority pursuant to the Fees Rules in
respect of the relevant financial year of the Financial Services Authority
(calculated for this purpose by that Reference Bank as being the average of the
Fee Tariffs applicable to that Reference Bank for that financial year) and
expressed in pounds per £1,000,000 of the Tariff Base of that Reference Bank.


 


8.             Each Lender shall supply any
information required by the Agent for the purpose of calculating its Additional
Cost Rate.  In particular, but without
limitation, each Lender shall supply the following information on or prior to
the date on which it becomes a Lender:


 


(a)           the jurisdiction of its Facility
Office; and


 


(b)           any other information that the Agent
may reasonably require for such purpose.


 


9.             Each Lender shall promptly notify the
Agent of any change to the information provided by it pursuant to this
paragraph.


 


10.          The percentages of each Lender for
the purpose of A and C above and the rates of charge of each Reference Bank for
the purpose of E above shall be determined by the Agent based upon the
information supplied to it pursuant to paragraphs 7 and 8 above and on the
assumption that, unless a Lender notifies the Agent to the contrary, each
Lender’s obligations in relation to cash ratio deposits and Special Deposits
are the same as those of a typical bank from its jurisdiction of incorporation
with a Facility Office in the same jurisdiction as its Facility Office.


 


11.          The Agent shall have no liability to
any person if such determination results in an Additional Cost Rate which over
or under compensates any Lender and shall be entitled to assume that 


 


140

















 


the information provided by any
Lender or Reference Bank pursuant to paragraphs 3, 7 and 8 above is true and
correct in all respects.


 


12.          The Agent shall distribute the
additional amounts received as a result of the Mandatory Cost to the Lenders on
the basis of the Additional Cost Rate for each Lender based on the information
provided by each Lender and each Reference Bank pursuant to paragraphs 3, 7 and
8 above.


 


13.          Any determination by the Agent
pursuant to this Schedule in relation to a formula, the Mandatory Cost, an
Additional Cost Rate or any amount payable to a Lender shall, in the absence of
manifest error, be conclusive and binding on all Parties.


 


14.          The Agent may from time to time,
after consultation with the Company and the Lenders, determine and notify to
all Parties any amendments which are required to be made to this Schedule in
order to comply with any change in law, regulation or any requirements from
time to time imposed by the Bank of England, the Financial Services Authority
or the European Central Bank (or, in any case, any other authority which
replaces all or any of its functions) and any such determination shall, in the absence
of manifest error, be conclusive and binding on all Parties.


 


141














 


SCHEDULE
9


 


Existing
Security, Guarantees and Intercompany Loans


 


Part I

Existing Security and Guarantees


 


	
  Name of Group Company

  Granting Security /Guarantee

  	
   

  	
  Description of

  Security/Guarantee

  	
   

  	
  Principal Amount of

  Indebtedness Secured /

  Guaranteed

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Security

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi
  Alfeld GmbH and Sappi Ehingen GmbH

  	
   

  	
  Mortgage
  in favour of Allianz AG on land and buildings owned by Sappi Alfred GmbH and
  Sappi Ehingen GmbH

  	
   

  	
  EUR20,452,675

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SD
  Warren Company

  	
   

  	
  Mortgage
  in favour of public bondholders in relation to land and buildings

  	
   

  	
  USD106,610,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi
  Manufacturing

  	
   

  	
  Mortgage
  in favour of Rand Merchant Bank of plant and equipment

  	
   

  	
  ZAR174,000,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Guarantees

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Cloquet LLC

  	
   

  	
  Guarantee in favour of
  IKEA Deutschland Verkauts GmbH & Co. Einrichtung in relation to
  lease arrangements in respect of mill operations located at Cloquet
  Minnesota, USA

  	
   

  	
  Amount determined by
  “Termination Value” under the lease arrangement. As at September 2008
  the termination value of the lease was approximately US$8 million.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Papier Holding
  GmbH and Sappi Austria Produktions GmbH and Co KG

  	
   

  	
  Guarantee in favour of
  communities in Gratkorn, Austria, on behalf of Wasserverband

  	
   

  	
  EUR 5,107,341

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi International SA

  	
   

  	
  Guarantee in favour of
  Pulp Trading GmbH on behalf of Sappi Trading Germany GmbH, Sappi Trading Pulp
  AG and Sappi Pulp Americas LLP

  	
   

  	
  USD
  2,704,355

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi International SA

  	
   

  	
  Guarantee in favour of Citibank, N.A. on
  behalf of Sappi (U.K.) Limited

  	
   

  	
  GBP
  490,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi
  International SA

  	
   

  	
  Guarantee in favour of
  KBC Bank on behalf of Sappisure Försäkrings AB.

  	
   

  	
  EUR
  17,205

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi
  International SA

  	
   

  	
  Guarantee in favour of Sappi UK Ltd
  Pension funds

  	
   

  	
  GBP
  30,000,000

  



 


142

















 


	
  Name of Group Company

  Granting Security /Guarantee

  	
   

  	
  Description of

  Security/Guarantee

  	
   

  	
  Principal Amount of

  Indebtedness Secured /

  Guaranteed

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi International SA
  and Sappi Limited

  	
   

  	
  Guarantee in favour of public bond
  holders on behalf of Sappi Papier Holding GmbH

  	
   

  	
  USD
  750,000,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi International SA,
  Sappi Limited and Sappi Trading Pulp AG

  	
   

  	
  Guarantee in favour of UniCredit Bank
  Austria AG on behalf of Sappi Papier Holding GmbH

  	
   

  	
  EUR400,085,125

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi International SA,
  Sappi Limited and Sappi Trading Pulp AG

  	
   

  	
  Guarantee in favour of UniCredit Bank
  Austria AG on behalf of Sappi Papier Holding GmbH

  	
   

  	
  USD
  37,858,535

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi International SA,
  Sappi Limited and Sappi Trading Pulp AG

  	
   

  	
  Guarantee in favour of BNP Paribas on
  behalf of Sappi Papier Holding GmbH

  	
   

  	
  CHF165,000,000

  EUR
  300,000,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi International SA
  and Sappi Limited

  	
   

  	
  Guarantee in favour of Royal Bank of
  Scotland plc on behalf of Sappi Papier Holding GmbH

  	
   

  	
  USD
  20,000,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi
  International SA

  	
   

  	
  Guarantee in favour of ING Bank on
  behalf of Sappi Europe S.A.

  	
   

  	
  EUR
  52,071

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi
  Lanaken NV

  	
   

  	
  Guarantee in favour of KBC Bank NV

  	
   

  	
  EUR119,157.41

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi International SA

  	
   

  	
  Guarantee in favour of M-real
  Corporation on behalf of Sappi Papier Holding GmbH

  	
   

  	
  EUR
  220,000,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Papier Holding
  GmbH

  	
   

  	
  Guarantee in favour of North West
  Regional Development Agency on behalf of Sappi (U.K.) Limited

  	
   

  	
  GBP
  249,000 (EUR 292,648,53)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Papier Holding
  GmbH

  	
   

  	
  Guarantee in favour of Bank Austria on
  behalf of Sappi Trading Germany GmbH

  	
   

  	
  USD
  2,227,493 (EUR 1,585,009)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Papier Holding
  GmbH

  	
   

  	
  Guarantee in favour of ABN Amro on
  behalf of SD Warren Company

  	
   

  	
  USD
  23,000,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Papier Holding
  GmbH

  	
   

  	
  Guarantee in favour of Societe Generale
  on behalf of SD Warren 

  	
   

  	
  USD
  10,000,000

  



 


143

















 


	
  Name of Group Company

  Granting Security /Guarantee

  	
   

  	
  Description of

  Security/Guarantee

  	
   

  	
  Principal Amount of

  Indebtedness Secured /

  Guaranteed

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Company

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Papier Holding GmbH

  	
   

  	
  Guarantee in favour of Citibank on
  behalf of SD Warren Company

  	
   

  	
  USD
  20,790,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Papier Holding
  GmbH

  	
   

  	
  Guarantee in favour of Bank Austria on
  behalf of SD Warren Company

  	
   

  	
  USD
  21,174,725 (EUR 29,757,900)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Papier Holding
  GmbH

  	
   

  	
  Guarantee in favour of third parties
  (suppliers, authorities, etc) on behalf of Sappi Netherlands BV

  	
   

  	
  USD
  5,100,000 (EUR 3,628,989)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Papier Holding
  GmbH

  	
   

  	
  Guarantee in favour of Credit Agricole
  Indosuez on behalf of Sappi International SA

  	
   

  	
  USD
  20,000,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi International SA
  and Sappi Papier Holding GmbH

  	
   

  	
  Guarantee in favour of AMB AMRO Bank NV
  on behalf of Sappi Netherlands BV

  	
   

  	
  EUR220,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Europe SA

  	
   

  	
  Guarantees in favour of KBC Bank on
  behalf of various third parties

  	
   

  	
  EUR
  83,724.56

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Europe SA

  	
   

  	
  Guarantees in favour of KBC Bank

  	
   

  	
  EUR
  120,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Europe SA

  	
   

  	
  Guarantees in favour KBC Bank on behalf
  of SD Warren Company

  	
   

  	
  EUR
  74,400

  



 


144














 


Part II

Existing Intercompany Loans


 




	
  Lender

  	
   

  	
  Borrower

  	
   

  	
  Total Principal Amount of

  Indebtedness (in thousands)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Limited

  	
   

  	
  Sappi Manufacturing (Pty)

  	
   

  	
  ZAR1,901,214

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Share Facilitation (Pty) Ltd

  	
   

  	
  ZAR798,974

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Brocas Limited

  	
   

  	
  ZAR370

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Gratkorn
  GmbH (Real Est. Co.)

  	
   

  	
  Sappi Austria Produktions
  GmbH & Co KG

  	
   

  	
  Eur23,144

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi
  Magnostar GmbH

  	
   

  	
  Sappi Austria Produktions
  GmbH & Co KG

  	
   

  	
  Eur198,330

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Austria
  Produktions GmbH & Co KG

  	
   

  	
  Sappi Austria
  Vertriebs GmbH & Co KG

  	
   

  	
  Eur1,610

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Wasserverband

  	
   

  	
  Eur3,979

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Holding GmbH

  	
   

  	
  Eur151

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Papier Holding GmbH

  	
   

  	
  Eur433,055

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi International SA

  	
   

  	
  Eur48,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Papier
  Holding GmbH

  	
   

  	
  Sappi Austria Produktions
  GmbH & Co KG

  	
   

  	
  Eur104,717

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Magnostar GmbH

  	
   

  	
  Eur72,673

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Netherlands BV

  	
   

  	
  Eur138,366

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Maastricht BV

  	
   

  	
  Eur26,967

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi China Holdings BV

  	
   

  	
  Eur44,808

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi UK Holdings BV

  	
   

  	
  Eur133,179

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Lanaken Press Paper NV

  	
   

  	
  Eur152,400

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi International SA

  	
   

  	
  Eur2,498

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Esus Beteiligungsverwaltungs GmbH

  	
   

  	
  Eur1,497

  






 


145

















 




	
  Lender

  	
   

  	
  Borrower

  	
   

  	
  Total Principal Amount of

  Indebtedness (in thousands)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Finland I Oy

  	
   

  	
  Eur480,748

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Stockstadt GmbH

  	
   

  	
  Eur35,639

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Deutschland Holding GmbH

  	
   

  	
  Eur57,680

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Schweiz AG

  	
   

  	
  Eur42,689

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  S.D. Warren Company

  	
   

  	
  Eur318,246

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi
  International SA

  	
   

  	
  Sappi Papier Holding GmbH

  	
   

  	
  Eur1,570,680

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi UK Holdings BV

  	
   

  	
  Eur78,697

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Lanaken NV

  	
   

  	
  Eur227,605

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Deutschland Holding GmbH

  	
   

  	
  Eur67,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Europe SA

  	
   

  	
  Eur57,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Trading Germany GmbH

  	
   

  	
  Eur8,448

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Lanaken
  NV

  	
   

  	
  Albertcentrale NV

  	
   

  	
  Eur1,269

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Lanaken Press Paper NV

  	
   

  	
  Eur152

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Lanaken
  Press Paper NV

  	
   

  	
  Sappi Lanaken NV

  	
   

  	
  Eur203

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi International SA

  	
   

  	
  Eur12,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Alfeld
  GmbH

  	
   

  	
  Hannover Papier
  Projektierungsgesellschaft Blackburn GmbH

  	
   

  	
  Eur18

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Trading Germany GmbH

  	
   

  	
  Eur1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Ehingen
  GmbH

  	
   

  	
  Sappi Alfeld GmbH

  	
   

  	
  Eur2

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi
  Deutschland GmbH

  	
   

  	
  Sappi Alfeld GmbH

  	
   

  	
  Eur42

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Ehingen GmbH

  	
   

  	
  Eur37

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Europe SA

  	
   

  	
  Eur2,017

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Scandinavia AB

  	
   

  	
  Eur92

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi International SA

  	
   

  	
  US$5,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi
  Stockstadt GmbH

  	
   

  	
  Sappi Deutschland Holding GmbH

  	
   

  	
  Eur5,669

  






 


146

















 




	
  Lender

  	
   

  	
  Borrower

  	
   

  	
  Total Principal Amount of

  Indebtedness (in thousands)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi International SA

  	
   

  	
  Eur13,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Pulp
  Asia Limited

  	
   

  	
  Sappi International SA

  	
   

  	
  US$47,999

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi
  Maastricht BV

  	
   

  	
  Sappi Lanaken Press Paper NV

  	
   

  	
  Eur26,967

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Nijmegen
  BV

  	
   

  	
  Sappi Netherlands BV

  	
   

  	
  Eur21,879

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Schweiz
  AG

  	
   

  	
  Sappi International SA

  	
   

  	
  CHF85,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SD Warren
  Company

  	
   

  	
  Sappi Papier Holding GmbH

  	
   

  	
  US$30,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Trading
  Pulp AG

  	
   

  	
  Sappi International SA

  	
   

  	
  US$112,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi International SA

  	
   

  	
  CHF1,698

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi
  Netherlands BV

  	
   

  	
  Sappi Austria Produktions GmbH &
  Co KG

  	
   

  	
  Eur7,435

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Maastricht BV

  	
   

  	
  Eur124,058

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Netherlands Services BV

  	
   

  	
  Eur11,753

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi China Holdings BV

  	
   

  	
  Eur8,902

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi International SA

  	
   

  	
  Eur38,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Europe SA

  	
   

  	
  Eur3,967

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SD Warren Company

  	
   

  	
  Eur82,132

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi
  Deutschland Holding GmbH

  	
   

  	
  Sappi Logistics Wesel GmbH

  	
   

  	
  Eur950

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Alfeld GmbH

  	
   

  	
  Eur6,335

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Ehingen GmbH

  	
   

  	
  Eur28,417

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Deutschland GmbH

  	
   

  	
  Eur3,055

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Deutschland GmbH

  	
   

  	
  Eur7,840

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Chemische Werke
  Zell - Wildshausen GmbH

  	
   

  	
  Eur131

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Austria
  GmbH

  	
   

  	
  Sappi Austria Produktions
  GmbH & Co KG

  	
   

  	
  Eur97

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Wasserverband
  Gratkorn

  	
   

  	
  Sappi Austria Produktions
  GmbH & Co KG

  	
   

  	
  Eur3,715

  






 


147

















 




	
  Lender

  	
   

  	
  Borrower

  	
   

  	
  Total Principal Amount of

  Indebtedness (in thousands)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Austria
  Vertriebs GmbH and Co KG

  	
   

  	
  Sappi Papier Holding GmbH

  	
   

  	
  Eur1,369

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Europe SA

  	
   

  	
  Eur3,251

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi France S.A.R.L

  	
   

  	
  Sappi Europe SA

  	
   

  	
  Eur280

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Hellas
  LLC Athens

  	
   

  	
  Sappi Europe SA

  	
   

  	
  Eur773

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Italia S.r.l.

  	
   

  	
  Sappi Europe SA

  	
   

  	
  Eur1,522

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi International SA

  	
   

  	
  Eur1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Europe
  (lberica) SL

  	
   

  	
  Sappi Europe SA

  	
   

  	
  Eur12,544

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Lanaken NV

  	
   

  	
  Eur2

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Lanaken Press Paper NV

  	
   

  	
  Eur6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Trading
  Hong Kong Limited

  	
   

  	
  Sappi International SA

  	
   

  	
  US$30,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Brocas Ltd.

  	
   

  	
  Sappi International SA

  	
   

  	
  Eur617

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Paper
  Hong Kong Limited

  	
   

  	
  Sappi International SA

  	
   

  	
  US$11,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Albertcentrale
  NV

  	
   

  	
  Sappi Lanaken NV

  	
   

  	
  Eur1,898

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi
  Logistics Wesel GmbH

  	
   

  	
  Sappi Alfeld GmbH

  	
   

  	
  Eur34

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Ehingen GmbH

  	
   

  	
  Eur70

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Europe Polska SP ZOO

  	
   

  	
  Sappi Deutschland GmbH

  	
   

  	
  PLN281

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Europe SA

  	
   

  	
  PLN46

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi
  Warmte/Kracht BV

  	
   

  	
  Sappi Netherlands BV

  	
   

  	
  Eur10,072

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi UK
  Holdings BV

  	
   

  	
  Sappi International SA

  	
   

  	
  Eur44,800

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Netherlands BV

  	
   

  	
  Eur38,500

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Lanaken NV

  	
   

  	
  Eur88,671

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Deutschland Holding GmbH

  	
   

  	
  Eur35,469

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Hannover Papier Projektierungsgesellschaft Blackburn GmbH

  	
   

  	
  Sappi Deutschland Holding GmbH

  	
   

  	
  Eur11,831

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Europe
  Limited

  	
   

  	
  Sappi Europe Holding Limited

  	
   

  	
  GBP5,864

  






 


148

















 




	
  Lender

  	
   

  	
  Borrower

  	
   

  	
  Total Principal Amount of

  Indebtedness (in thousands)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Lignin
  Holdings

  	
   

  	
  Sappi Europe Holding Limited

  	
   

  	
  GBP1,216

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi (UK)
  Limited

  	
   

  	
  Sappi Europe Holding Limited

  	
   

  	
  £9,862

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Europe
  Holding Limited

  	
   

  	
  Sappi (UK) Limited

  	
   

  	
  £128,227

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Finland
  I Oy

  	
   

  	
  Sappi International SA

  	
   

  	
  Eur107,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi
  Scandinavia AB

  	
   

  	
  Sappi Europe SA

  	
   

  	
  SEK867

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Deutschland GmbH

  	
   

  	
  SEK7,510

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi (U.K.)
  Sales Office Ltd

  	
   

  	
  Sappi Europe SA

  	
   

  	
  £90

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Istanbul
  Kagit ve Ticaret Limited

  	
   

  	
  Sappi Austria
  Vertriebs GmbH and Co KG

  	
   

  	
  TRY319

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Share
  Facilitation Company (Pty) Ltd

  	
   

  	
  Sappi Limited
  Share Incentive Trust

  	
   

  	
  ZAR19,861

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Limited
  Share Incentive Trust

  	
   

  	
  Sappi
  Manufacturing (Pty) Ltd

  	
   

  	
  ZAR2,447

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Limited
  Performance Share Incentive Trust

  	
   

  	
  Sappi
  Manufacturing (Pty) Ltd

  	
   

  	
  ZAR528

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bonuskor
  Houtverwerkers (Pty) Ltd

  	
   

  	
  Sappi
  Manufacturing (Pty) Ltd

  	
   

  	
  ZAR136,610

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Lotzaba
  Forests Limited

  	
   

  	
  Sappi
  Manufacturing (Pty) Ltd

  	
   

  	
  ZAR190,606

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sappi Limited

  	
   

  	
  ZAR3,317,277

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Guardrisk Cell
  No. 61

  	
   

  	
  ZAR354,713

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi
  Manufacturing (Pty) Ltd

  	
   

  	
  Usutu Pulp
  Company Limited

  	
   

  	
  ZAR758,678

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi
  Management Services (Pty) Ltd

  	
   

  	
  Sappi
  Manufacturing (Pty) Ltd

  	
   

  	
  ZAR2,342,411

  






 


149














 


SCHEDULE
10 




Existing
Subsidiary External Indebtedness


 


	
  Name of
  Company

  	
   

  	
  Facility Document

  	
   

  	
  Total Principal Amount of

  Indebtedness

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Papier Holding AG

  	
   

  	
  USD 500,000,000 6.75%
  Guaranteed Notes due 2012. Unsecured

  	
   

  	
  USD
  500,000,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Papier Holding AG

  	
   

  	
  USD 250,000,000 7.50%
  Guaranteed Notes due 2032. Unsecured

  	
   

  	
  USD
  250,000,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Manufacturing
  (Proprietary) Limited

  	
   

  	
  ZAR 1 billion (US$ 126,598,000) Senior Unsecured Fixed Rate Notes issued due 27 June 2013

  	
   

  	
  ZAR
  1,000,000,000

  

  USD 126,598,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Manufacturing
  (Proprietary) Limited

  	
   

  	
  ZAR 1 billion
  (US$126,598,000) Senior Unsecured Fixed Rate Notes due 14 October 2011

  	
   

  	
  ZAR
  999,037,000

  

  USD 126,477,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  S.D. Warren Company

  	
   

  	
  Loan Agreement relating
  to redeemable bonds (Series A, Series B, Series C) issued by
  Michigan Strategic Fund due January 2022.

  	
   

  	
  USD
  44,000,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  S.D. Warren Company

  	
   

  	
  Loan Agreement relating
  to redeemable bonds issued by Town of Skowhegan due November 2013

  	
   

  	
  USD
  28,100,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  S.D. Warren Company

  	
   

  	
  Loan Agreement relating
  to redeemable bonds (Series A, Series B, Series C,
  Series D) issued by Town of Skowhegan, maturity in October 2015

  	
   

  	
  USD
  34,510,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Manufacturing
  (Proprietary) Limited

  	
   

  	
  Promissory note due 10
  December 2013

  	
   

  	
  ZAR
  53,044,000

  

  USD 6,715,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Manufacturing
  (Proprietary) Limited

  	
   

  	
  Promissory note due 19
  March 2013

  	
   

  	
  ZAR
  28,805,000

  

  USD 3,647,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Manufacturing
  (Proprietary) Limited

  	
   

  	
  Promissory note due 16
  January  2013

  	
   

  	
  ZAR
  116,544,000

  

  USD 14,754,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Manufacturing
  (Proprietary) Limited

  	
   

  	
  Promissory note due 20
  November 2012

  	
   

  	
  ZAR
  118,115,000

  



 


150

















 


	
  Name of
  Company

  	
   

  	
  Facility Document

  	
   

  	
  Total Principal Amount of

  Indebtedness

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  USD
  14,953,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Papier Holding
  GmbH, Sappi Limited, Sappi International SA and Sappi Trading Pulp AG

  	
   

  	
  Guaranteed unsecured
  vendor loan notes

  	
   

  	
  EUR
  220,000,000

  

  USD 309,177,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Lanaken N.V.,
  Sappi Deutschland GmbH, Sappi Trading Germany GmbH

  	
   

  	
  Sappi Fine Paper Europe
  and Sappi Trading receivables purchase arrangements

  	
   

  	
  USD
  240 million programme limit for Sappi Fine Paper Europe.

  

  USD 75 million programme limit for Sappi Trading GmbH.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  S.D. Warren Company and
  S.D. Warren Finance Co.

  	
   

  	
  S.D. Warren Company
  receivables purchase arrangements

  	
   

  	
  USD
  100,000,000 programme limit.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Fine Paper
  (Proprietary) Limited, Sappi Kraft (Proprietary) Limited and Sappi
  Manufacturing (Proprietary) Limited

  	
   

  	
  Sappi Forest Products
  receivables purchase arrangements

  	
   

  	
  No
  formal programme limit.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Manufacturing
  (Proprietary) Limited

  	
   

  	
  Lease agreement

  	
   

  	
  ZAR
  162,233,000

  

  USD 20,538,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Papier Holding
  GmbH, Sappi International SA, Sappi Trading Pulp AG

  	
   

  	
  Multi-currency revolving
  credit facility agreement

  	
   

  	
  EUR
  600,000,000 facility or USD 843,210,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Papier Holding
  GmbH

  	
   

  	
  Credit facility

  	
   

  	
  EUR
  400,085,125

  

  USD 562,260,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Papier Holding
  GmbH

  	
   

  	
  Term loan facility

  	
   

  	
  USD
  37,858,535

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Papier Holding
  GmbH

  	
   

  	
  Facility agreement

  	
   

  	
  EUR
  58,200,000

  

  USD 81,791,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Manufacturing
  (Proprietary) Limited

  	
   

  	
  Loan agreement

  	
   

  	
  ZAR
  497,301,000

  

  USD 62,958,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Manufacturing
  (Proprietary) Limited

  	
   

  	
  Loan agreement

  	
   

  	
  ZAR
  349,026,000

  

  USD 44,186,000

  



 


151

















 


	
  Name of
  Company

  	
   

  	
  Facility Document

  	
   

  	
  Total Principal Amount of

  Indebtedness

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Manufacturing
  (Proprietary) Limited

  	
   

  	
  Loan agreement

  	
   

  	
  ZAR
  148,474,000

  

  USD 18,797,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Manufacturing
  (Proprietary) Limited

  	
   

  	
  Loan agreement

  	
   

  	
  ZAR
  22,000,000

  

  USD 2,785,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Manufacturing
  (Proprietary) Limited

  	
   

  	
  Overnight general
  banking facilities

  	
   

  	
  ZAR
  950,500,000

  

  USD 120,331,839

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Manufacturing
  (Proprietary) Limited

  	
   

  	
  Cash management
  overdraft facility

  	
   

  	
  ZAR 15,000,000

  

  USD 1,898,977

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Lanaken Press
  Paper NV

  	
   

  	
  Euro Bonds due
  December 2009

  	
   

  	
  EUR
  3,267,000

  

  USD 724,348

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi International SA

  	
   

  	
  Uncommitted Facilities

  	
   

  	
  EUR
  104,900,000

  

  USD 147,421,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi International SA

  	
   

  	
  Uncommitted Facilities

  	
   

  	
  USD
  45,000,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Papier Holding GmbH

  	
   

  	
  Facility agreement for China funding

  	
   

  	
  USD 20,000,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Stockstadt

  	
   

  	
  Lease agreement

  	
   

  	
  EUR 6,000,000

  

  USD
  7,949,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Papier Holding GmbH

  	
   

  	
  Lease agreements

  	
   

  	
  EUR 7,000,000

  

  USD
  9,904,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Finland I Oy

  	
   

  	
  Main Agreement on
  sale of power plants and other arrangements of Kirkniemi

  	
   

  	
  EUR
  30,816,000

  

  USD 43,307,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi Manufacturing (Proprietary)
  Limited

  	
   

  	
  Domestic medium term
  note programme

  	
   

  	
  ZAR
  5,000,000,000

  

  USD 90,052,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PE Paper Escrow GmbH

  	
   

  	
  Senior secured notes due
  2014

  	
   

  	
  USD
  300,000,000 and EUR 350,000,000.

  



 


152

















 


	
  Name of
  Company

  	
   

  	
  Facility Document

  	
   

  	
  Total Principal Amount of

  Indebtedness

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sappi International SA and Sappi Papier
  Holding GmbH

  	
   

  	
  Uncommitted Facilities

  	
   

  	
  USD1,000,000

  



 


153














 


SCHEDULE
15


 


Transaction
Security Documents


 


Part I


Austrian Security Documents


 


1.                                      Mortgage
offer with respect to land owned by Sappi Gratkorn GmbH


 


2.                                      First
ranking pledge agreement with respect to buildings on third party land (Superädifikate) owned by Sappi MagnoStar GmbH


 


3.                                      First
ranking asset pledge agreement with respect to paper machines owned by Sappi
MagnoStar GmbH


 


4.                                      First
ranking asset pledge agreement with respect to paper machines and the pulp mill
owned by Sappi Austria Produktions-GmbH & Co. KG


 


5.                                      First
ranking share pledge agreement with respect to the shares in Sappi Papier
Holding GmbH


 


6.                                      First
ranking share pledge agreement with respect to the shares in Sappi Gratkorn
GmbH


 


7.                                      First
ranking share pledge agreement with respect to the shares in Sappi MagnoStar
GmbH


 


8.                                      First
ranking partnership interest pledge agreement with respect to the partnership
interest in Sappi Austria Produktions-GmbH & Co. KG


 


9.                                      First
ranking receivables pledge agreement with respect to intercompany loans held by
Sappi Papier Holding GmbH as creditor and provided to Sappi China Holdings BV,
Sappi UK Holdings BV and Sappi Netherlands BV


 


10.                               First
ranking receivables pledge agreement with respect to intercompany loans held by
Sappi Austria Produktions-GmbH & Co KG as creditor and provided to
Sappi International SA


 


Part II


Belgian Security Documents


 


1.                                      First
ranking share pledge agreement over shares in Sappi International SA


 


2.                                      First
ranking share pledge agreement over shares in Sappi Europe SA


 


3.                                      First
ranking share pledge agreement over shares in Sappi Lanaken NV


 


4.                                      First
ranking share pledge agreement over shares in Sappi Lanaken Press Paper NV


 


5.                                      First
ranking intercompany loan pledge


 


154

















 


Part III


Dutch Security Documents


 


1.                                      A
first ranking deed of pledge of shares with respect to the shares in the
capital of Sappi Maastricht B.V.


 


2.                                      A
first ranking deed of pledge of shares with respect to the shares in the
capital of Sappi Nijmegen B.V.


 


3.                                      A
first ranking deed of pledge of shares with respect to the shares in the
capital of Sappi Netherlands B.V.


 


4.                                      A
first ranking deed of pledge of intercompany receivables of Sappi Netherlands
B.V.


 


5.                                      A
first ranking deed of mortgage and pledge with respect to the land, plant and
paper machines at Maastricht and Nijmegen, the Netherlands, granted by Sappi
Maastricht B.V. and Sappi Nijmegen B.V.


 


Part IV


Finnish Security Documents


 


1.                                      A
first ranking real estate mortgage agreement in relation to the Kirkniemi mill
(with the mortgage also to cover paper machines to the fullest extent permitted
under Finnish law)


 


2.                                      A
first ranking share pledge agreement over the shares in Sappi Finland I Oy


 


Part V


German Security Documents


 


1.                                      First-ranking
share pledge agreement of the shares in Sappi Alfeld GmbH, Sappi Deutschland
GmbH, Sappi Stockstadt GmbH and Sappi Ehingen GmbH by Sappi Deutschland Holding
GmbH as pledgor


 


2.                                      First-ranking
share pledge agreement of the shares in Sappi Deutschland Holding GmbH by Sappi
Papier Holding GmbH (Austria) as pledgor


 


3.                                      Assignment
of intercompany receivables (governed by German law) by Sappi Deutschland
Holding GmbH


 


4.                                      Assignment
of intercompany receivables (governed by German law) by Sappi Papier Holding
GmbH (Austria)


 


Part VI 


South African Security Documents


 


1.                                      First
ranking share pledge over the shares in Sappi Manufacturing (Pty) Ltd.


 


155

















 


Part VII


US Security Documents


 


1.                                      Pledge
and security agreement in relation to:


 


(a)                                 the
shares in SD Warren Company, Sappi Cloquet LLC, and Cloquet Terminal Railroad
Company Inc.; and


 


(b)                                 the
inventory of SD Warren Company and Sappi Cloquet LLC (excluding inventory held
on consignment)


 


2.                                      Note
pledge agreement in relation to the notes issued by SD Warren Company held by
Sappi Holding GmbH and Sappi Netherlands BV


 


3.                                      Mortgage
(in respect of property located in Maine) owned by SD Warren Company


 


4.                                      Mortgage
(in respect of property located in Minnesota) owned by Sappi Cloquet LLC


 


Part VIII


Swiss Security Documents


 


1.                                      First
ranking share pledge agreement over the shares of Sappi Pulp Trading AG and
Sappi Schweiz AG


 


Part IX


English Security Document


 


1.                                      Assignment
of intercompany receivables (governed by English law) by Sappi Papier Holding
GmbH, Sappi Pulp Asia Limited and Sappi Finland I Oy


 


156














 


	
  SIGNATURES

  	
   

  
	
   

  	
   

  
	
  The
  Company

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI
  LIMITED

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ M.R. Thompson

  	
   

  
	
   

  	
   

  
	
  The
  Original Borrowers

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI
  PAPIER HOLDING GMBH

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ J. Pässler

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ B. Wiersum

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI
  INTERNATIONAL SA

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ J. Pässler

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  Chaussee
  de la Hulpe 154

  	
   

  
	
   

  	
  1170
  Watermael-Boitsfort

  	
   

  
	
   

  	
  Belgium

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
  +32 (0) 2676 984

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
  Jörg Passler

  	
   

  



 


157

















 


	
  The
  Original Guarantors

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI
  LIMITED

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ M.R. Thompson

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI
  PAPIER HOLDING GMBH

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ J. Pässler

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ B. Wiersum

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI
  INTERNATIONAL SA

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ J. Pässler

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SD
  WARREN COMPANY

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ A. Luchene

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SDW
  HOLDINGS CORPORATION

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ A. Luchene

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI CLOQUET
  LLC

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ A. Luchene

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI
  LANAKEN NV

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ B. Wiersum

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI
  DEUTSCHLAND GMBH

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ M. Eikelenboom

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI
  DEUTSCHLAND HOLDING GMBH

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ B. Wiersum

  	
   

  



 


158

















 


	
   

  	
  /s/ M.
  Quaedvlieg

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SAPPI LANAKEN PRESS PAPER NV

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  B. Wiersum

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SAPPI
  PULP ASIA LIMITED

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ H. Kirsten

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SAPPI
  NIJMEGEN BV

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ G. Wassens

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SAPPI
  ALFELD GMBH

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ M. Hottman

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SAPPI
  MAASTRICHT BV

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ E. de Vries

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SAPPI
  NETHERLANDS BV

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ B. Wiersum

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SAPPI
  EHINGEN GMBH

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ S. Wurdinger

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SAPPI
  EUROPE SA

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ B. Wiersum

  	
   

  



 


159

















 


	
  SAPPI
  GRATKORN GMBH

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ J. Pässler

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SAPPI
  MAGNOSTAR GMBH

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ J. Pässler

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SAPPI
  AUSTRIA PRODUKTIONS – GMBH & CO. KG

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ J. Pässler

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SAPPI
  STOCKSTADT GMBH

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ B. Jäggi

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SAPPI
  FINLAND I OY

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ B. Wiersum

  	
   

  



 


160

















 


	
  The
  Mandated Lead Arrangers

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  J. P. MORGAN
  PLC

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ R. Kean

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ F.
  Gomboc

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  CITIBANK,
  N.A. LONDON BRANCH

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ T. Lambourn

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  THE ROYAL
  BANK OF SCOTLAND PLC

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ R. Bartlett

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  UNICREDIT
  BANK AUSTRIA AG

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ G. Langton

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  HSBC
  BANK PLC

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ D. Stent

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  KBC
  BANK NV

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ G. De Poorter

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ M.
  Leterme

  	
   

  



 


161

















 


	
  The
  Original Lenders

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ABN AMRO BANK
  NV, BELGIAN BRANCH

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ M. Giesen

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  CITIBANK,
  N.A. LONDON BRANCH

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ T. Lambourn

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  HSBC BANK PLC

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ D. Stent

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  J. P. MORGAN
  EUROPE LIMITED

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ R. Kean

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ F.
  Gomboc

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  KBC
  BANK DEUTSCHLAND AG

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ S. Van Dooren

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ M.
  Leterme

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  NATIXIS

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ P.
  Massot

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ T.
  Barbot

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  UNICREDIT
  BANK CZECH REPUBLIC, A.S.

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  

  	
   

  



 


162

















 


	
  The
  Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  J.P.
  MORGAN EUROPE LIMITED

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ R. Kean

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ F.
  Gomboc

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  125 London Wall

  	
   

  
	
   

  	
  London

  	
   

  
	
   

  	
  EC2Y 5AJ

  	
   

  
	
   

  	
   

  
	
  Fax:

  	
  +44 (0) 20 7777 2434

  	
   

  
	
   

  	
   

  
	
  Attention:

  	
  Steve Clarke/Ching Loh

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  The Security Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  J.P. MORGAN EUROPE LIMITED

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ R. Kean

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ F. Gomboc

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  125 London Wall

  	
   

  
	
   

  	
  London

  	
   

  
	
   

  	
  EC2Y 5AJ

  	
   

  
	
   

  	
   

  
	
  Fax:

  	
  +44 (0) 20 7777 2434

  	
   

  
	
   

  	
   

  
	
  Attention:

  	
  Steve Clarke/Ching Loh

  	
   

  



 


163