EXHIBIT 4.10


 


STAMP DUTY EXEMPT PURSUANT TO SEC 33 TP 19
PARA 4 NR 4 STAMP DUTY ACT


 


BRINGING THIS DOCUMENT OR ANY CERTIFIED COPY OF THIS DOCUMENT INTO THE
REPUBLIC OF AUSTRIA MAY CAUSE THE IMPOSITION OF AUSTRIAN STAMP DUTY TAX ON
AGREEMENTS REFERENCED HEREIN.


 


EXECUTION VERSION


 


AMENDING AGREEMENT


 


dated 27 August 2009 relating to


 


SAPPI PAPIER HOLDING GMBH’S
EUR 500,106,406 FACILITY AGREEMENT

dated 7 May 2003, as
amended and restated

pursuant to an amending agreement dated 18 November 2005,


 


between


 


SAPPI PAPIER HOLDING GMBH

as Borrower


 


and


 


SAPPI INTERNATIONAL SA

SAPPI LIMITED

SAPPI TRADING PULP AG

as Original Guarantors


 


and


 


S.D.
WARREN COMPANY

SDW HOLDINGS CORPORATION

SAPPI CLOQUET LLC

SAPPI LANAKEN NV

SAPPI DEUTSCHLAND GMBH

SAPPI DEUTSCHLAND HOLDING GMBH

SAPPI LANAKEN PRESS PAPER NV

SAPPI PULP ASIA LIMITED

SAPPI NIJMEGEN BV

SAPPI ALFELD GMBH

SAPPI MAASTRICHT BV

SAPPI NETHERLANDS BV

SAPPI EHINGEN GMBH

SAPPI EUROPE SA

SAPPI GRATKORN GMBH

SAPPI MAGNOSTAR GMBH

SAPPI AUSTRIA PRODUCTIONS – GMBH & CO. KG

SAPPI STOCKSTADT GMBH

SAPPI FINLAND I OY

as Further Guarantors


 


and


 


1

















 


BAWAG P.S.K. BANK FÜR ARBEIT UND WIRTSCHAFT UND

ÖSTERREICHISCHE POSTSPARKASSE AG

CALYON

ERSTE BANK DER OESTERREICHISCHEN SPARKASSEN AG

KBC BANK NV

INVESTKREDIT BANK AG

THE ROYAL BANK OF SCOTLAND PLC

UNICREDIT
BANK AUSTRIA AG

as Mandated Lead Arrangers


 


and


 


UNICREDIT BANK AUSTRIA AG

as Agent


 


and


 


J.P. MORGAN EUROPE LIMITED

as Security Agent


 


and


 


the Lenders as defined below


 


2

















 


THIS AMENDING AGREEMENT
is made on 27 August 2009


 


AMONG


 


(1)           SAPPI PAPIER
HOLDING GMBH (the “Borrower”);


 


(2)           SAPPI INTERNATIONAL S.A., SAPPI LIMITED and SAPPI
TRADING PULP AG  (the “Original
Guarantors”);


 


(3)           the entities (other than SAPPI PAPIER HOLDING GMBH,
SAPPI INTERNATIONAL S.A. and SAPPI LIMITED) named as Original Guarantors in Part A
of Schedule 1 of the Amended and Restated Facility Agreement (as defined below)
(the “Further Guarantors”);


 


(4)           BAWAG
P.S.K. Bank für Arbeit und Wirtschaft und Österreichische Postsparkasse AG,
Calyon, Erste Bank der oesterreichischen Sparkassen AG, KBC Bank NV,
Investkredit Bank AG, The Royal Bank of Scotland plc and UniCredit Bank Austria AG (the “Mandated Lead Arrangers”);


 


(5)           UniCredit Bank Austria AG (the “Agent”);


 


(6)           J.P. Morgan Europe Limited (the “Security
Agent”); and


 


(7)           the banks and other financial institutions named as
Original Lenders in Part B of Schedule 1 of the Amended and Restated
Facility Agreement (the “Lenders”).


 


WHEREAS


 


(A)           Pursuant to the terms of a facility agreement dated 7 May 2003,
as amended and restated pursuant to an amending agreement dated 18 November 2005
(the “Facility Agreement”) made between the
Borrower, the Original Guarantors, the Mandated Lead Arranger and Agent, and
the banks and other financial institutions named therein as lenders, the
lenders agreed to make available to the Borrower a term loan facility of
EUR 500,106,406 upon the terms and conditions set out in the Facility Agreement.


 


(B)          The Borrower has requested the Lenders to amend the
Facility Agreement and the Lenders have agreed to that request on the condition
(inter alia) that the parties enter into
this Amending Agreement.


 


IT IS AGREED as follows:


 


1.            INTERPRETATION


 


Unless the context otherwise requires, terms defined
in or construed for the purposes of the Amended and Restated Facility Agreement
shall have the same meanings when used in this Amending Agreement. Clause
headings shall be ignored in construing and interpreting this Amending
Agreement.


 


3

















 


2.            EFFECTIVE DATE


 


2.1          Effective Date


 


The amendments set out in this
Amending Agreement shall not become effective until the “Effective
Date”, being the date on which the Agent notifies the Lenders and
the Borrower that it has received the following in such number of copies or
counterparts as it requires and in form and substance satisfactory to it:


 


(a)          all of the documents and other evidence listed in Part A
of Schedule 2 (Conditions Precedent to Initial Utilisation)
of the Amended and Restated Facility Agreement, in relation to of each of the
Borrower, the Original Guarantors and the Further Guarantors;


 


(b)          evidence that a Agent (as defined in the RCF Facility)
has received all of the documents and other evidence listed in Part I of
Schedule 2 (Conditions Precedent to Initial
Utilisation) of the RCF Facility in form and substance satisfactory
to it; and


 


(c)           this Amending Agreement duly executed by all parties.


 


2.2          References


 


With effect from the Effective Date, every reference
in the Facility Agreement shall be construed as a reference to the Facility
Agreement as amended by this Amending Agreement and any reference to “this Agreement”, “herein”, “hereof” or words to the same effect in the Facility
Agreement shall be deemed to be a reference to the Facility Agreement as
amended by this Amending Agreement. For the avoidance of doubt, with effect
from the Effective Date, references to “the date of this Agreement” or words to
the same effect shall be deemed to be references to 7 May 2003.


 


3.            AMENDMENT,
ACCESSION AND RESIGNATION


 


3.1          Amendment


 


On the Effective Date, the Facility Agreement shall
for all purposes be amended and restated so as to incorporate all amendments
reflected in the Schedule hereto and so that the Facility Agreement shall be
read and construed as so amended and restated (the “Amended and
Restated Facility Agreement”).


 


3.2          Accession


 


On the Effective Date, each Further Guarantor shall
become a Guarantor and agrees to be bound by the terms of the Amended and
Restated Facility Agreement (including, for the avoidance of doubt and without
limitation, the Guarantee pursuant to Clause 17 of the Amended and
Restated Facility Agreement in accordance with its terms, as amended or
restated) as a Guarantor.


 


4

















 


3.3          Resignation


 


On the Effective Date, Sappi Trading Pulp AG ceases to
be a Guarantor under the Facility Agreement and is released from its
obligations as a Guarantor under the Facility Agreement.


 


4.            REPRESENTATIONS
AND WARRANTIES


 


Each of the Borrower, the Original Guarantors and the
Further Guarantors makes the representations and warranties set out in Clause
18 of the Amended and Restated Facility Agreement to each Finance Party on the
date of this Amending Agreement and on the Effective Date.


 


5.            MISCELLANEOUS


 


5.1          Counterparts


 


This Amending Agreement may be executed in any number
of counterparts and all such counterparts taken together shall be deemed to
constitute one and the same instrument.


 


5.2          Finance  Document


 


This Amending Agreement is designated as a Finance
Document.


 


5.3          Continued
Force and Effect


 


Subject to the terms and conditions of this Amending
Agreement, the Facility Agreement remains in full force and effect. In
particular, without limitation, each Original Guarantor (other than Sappi
Trading Pulp AG) confirms that it shall continue to be obliged as a Guarantor
under the Facility Agreement in accordance with its terms, as amended and
restated.


 


6.            GOVERNING
LAW


 


This Amending Agreement and any non-contractual
obligations arising out of or in connection with this Amending Agreement shall
be governed by, and interpreted in accordance with, Austrian law.


 


7.            ENFORCEMENT


 


7.1          Jurisdiction
of the Austrian Courts


 


The competent courts for the first district of Vienna,
shall have exclusive jurisdiction to settle any dispute arising out of or in
connection with this Amending Agreement (including a dispute relating to the
existence, validity or termination of this Amending Agreement) or any
non-contractual obligation arising out of or in connection with this Amending
Agreement (a “Dispute”).


 


5

















 


7.2          Benefit
of the Finances Parties


 


This
Clause 7 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 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.


 


This
Amending Agreement has been entered into on the date stated at the beginning of
this Amending Agreement.


 


6

















 


SIGNATURES


 


	
  The Company

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI LIMITED

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ M.R Thompson

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  The Borrower

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI PAPIER
  HOLDING GMBH

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ B. Wiersum

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ J. Pässler

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  The Original
  Guarantors

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI LIMITED

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ M.R Thompson

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI
  INTERNATIONAL SA

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ J. Pässler

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI
  TRADING PULP AG

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Dr. H.J
  Schürmann

  	
   

  



 


7

















 


	
  The Further
  Guarantors

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  S.D. 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

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ M. Quaedvlieg

  	
   

  



 


8

















 


	
  SAPPI LANAKEN
  PRESS PAPER NV

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ B. Wiersum

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI PULP
  ASIA LIMITED

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ H. Kirsten

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI
  NIJMEGEN BV

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ G.G Wassens

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI ALFELD
  GMBH

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ M Hottmann

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI
  MAASTRICHT BV

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ E. de Vries

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI
  NETHERLANDS BV

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ B. Wiersum

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI EHINGEN
  GMBH

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Dr. S.
  Wurdinger

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI EUROPE
  SA

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ B. Wiersum

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI
  GRATKORN GMBH

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ J. Pässler

  	
   

  



 


9

















 


	
  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

  	
   

  



 


10














 


	
  The Mandated
  Lead Arrangers

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  BAWAG P.S.K. BANK FÜR ARBEIT UND WIRTSCHAFT UND ÖSTERREICHISCHE
  POSTSPARKASSE AG

  
	
   

  	
   

  
	
  By:

  	
  /s/ G.D. Langton

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  CALYON

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ L. Gubler

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ P. Doumer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  ERSTE BANK DER OESTERREICHISCHEN SPARKASSEN AG

  
	
   

  	
   

  
	
  By:

  	
  /s/ G.D. Langton

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  KBC
  BANK NV

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ G.
  Henckens

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ D.
  Miller

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  INVESTKREDIT
  BANK AG

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ G.D. Langton

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  THE ROYAL
  BANK OF SCOTLAND PLC

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ R. Bartlett

  	
   

  



 


11

















 


	
  UNICREDIT
  BANK AUSTRIA AG

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ G.D. Langton

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  The
  Original Lenders

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  ABN AMRO BANK
  N.V., BELGIAN BRANCH

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ M.
  Giesen

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  BAWAG P.S.K
  BANK FÜR ARBEIT UND WIRTSCHAFT UND ÖSTERREICHISCHE POSTSPARKASSE AG

  
	
   

  	
   

  
	
  By:

  	
  /s/ G.D. Langton

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  CALYON
  CREDIT AGRICOLE CIB

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ L. Gubler

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ P. Doumer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  ERSTE BANK
  DER OESTERREICHISCHEN SPARKASSEN AG

  
	
   

  	
   

  
	
  By:

  	
  /s/ G.D. Langton

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  INVESTKREDIT
  BANK AG

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ G.D. Langton

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  KBC BANK DEUTSCHLAND
  AG

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ S. Van Dooren

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ M. Leterme

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  RAIFFEISENLANDESBANK
  OBERÖSTERREICH AKTIENGESELLSCHAFT

  
	
   

  	
   

  
	
  By:

  	
  /s/ C. Unger

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ C. Vejvar

  	
   

  



 


12

















 


	
  RAIFFEISEN
  ZENTRALBANK ÖSTERREICH AG

  
	
   

  	
   

  
	
  By:

  	
  /s/ G.D. Langton

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  STANDARD
  CHARTERED BANK

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ V. Simha

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ G. Ensari

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  UNICREDIT
  BANK AUSTRIA AG

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ G.D. Langton

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  VORARLBERGER
  LANDES- UND HYPOTHEKENBANK AKTIENGESELLSCHAFT

  
	
   

  	
   

  
	
  By:

  	
  /s/ S. Germann

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ T. Reich

  	
   

  



 


13

















 


	
  The Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  UNICREDIT
  BANK AUSTRIA AG

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ G.D. Langton

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  The Security
  Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  J.P. MORGAN
  EUROPE LIMITED

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ F. Gomboc

  	
   

  



 


14

















 


SCHEDULE


 


AMENDED AND RESTATED FACILITY AGREEMENT


 


15

















 


CONTENTS


 


	
  CLAUSE

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  
	
  1.

  	
  DEFINITIONS
  AND INTERPRETATION

  	
  1

  
	
   

  	
   

  	
   

  
	
  2.

  	
  THE
  FACILITY

  	
  23

  
	
   

  	
   

  	
   

  
	
  3.

  	
  PURPOSE

  	
  26

  
	
   

  	
   

  	
   

  
	
  4.

  	
  CONDITIONS
  OF UTILISATION

  	
  26

  
	
   

  	
   

  	
   

  
	
  5.

  	
  UTILISATION

  	
  26

  
	
   

  	
   

  	
   

  
	
  6.

  	
  REPAYMENT

  	
  27

  
	
   

  	
   

  	
   

  
	
  7.

  	
  PREPAYMENT
  AND CANCELLATION

  	
  28

  
	
   

  	
   

  	
   

  
	
  8.

  	
  INTEREST

  	
  34

  
	
   

  	
   

  	
   

  
	
  9.

  	
  INTEREST
  PERIODS

  	
  35

  
	
   

  	
   

  	
   

  
	
  10.

  	
  BREAK
  COSTS

  	
  35

  
	
   

  	
   

  	
   

  
	
  11.

  	
  FEES

  	
  35

  
	
   

  	
   

  	
   

  
	
  12.

  	
  TAX
  GROSS UP AND INDEMNITIES

  	
  36

  
	
   

  	
   

  	
   

  
	
  13.

  	
  INCREASED
  COSTS

  	
  41

  
	
   

  	
   

  	
   

  
	
  14.

  	
  OTHER
  INDEMNITIES

  	
  42

  
	
   

  	
   

  	
   

  
	
  15.

  	
  MITIGATION
  BY THE LENDERS

  	
  43

  
	
   

  	
   

  	
   

  
	
  16.

  	
  COSTS
  AND EXPENSES

  	
  44

  
	
   

  	
   

  	
   

  
	
  17.

  	
  GUARANTEE
  AND INDEMNITY

  	
  44

  
	
   

  	
   

  	
   

  
	
  18.

  	
  REPRESENTATIONS

  	
  51

  
	
   

  	
   

  	
   

  
	
  19.

  	
  INFORMATION
  UNDERTAKINGS

  	
  58

  
	
   

  	
   

  	
   

  
	
  20.

  	
  FINANCIAL
  COVENANTS

  	
  63

  
	
   

  	
   

  	
   

  
	
  21.

  	
  GENERAL
  UNDERTAKINGS

  	
  67

  
	
   

  	
   

  	
   

  
	
  22.

  	
  EVENTS
  OF DEFAULT

  	
  83

  
	
   

  	
   

  	
   

  
	
  23.

  	
  CHANGES
  TO THE LENDERS

  	
  88

  
	
   

  	
   

  	
   

  
	
  24.

  	
  CHANGES
  TO THE OBLIGORS

  	
  92

  
	
   

  	
   

  	
   

  
	
  25.

  	
  ROLE OF
  THE AGENT AND THE MANDATED LEAD ARRANGERS

  	
  94

  
	
   

  	
   

  	
   

  
	
  26.

  	
  CONDUCT
  OF BUSINESS BY THE FINANCE PARTIES

  	
  102

  
	
   

  	
   

  	
   

  
	
  27.

  	
  SHARING
  AMONG THE LENDERS

  	
  102

  
	
   

  	
   

  	
   

  
	
  28.

  	
  PAYMENT
  MECHANICS

  	
  103

  
	
   

  	
   

  	
   

  
	
  29.

  	
  SET-OFF

  	
  106

  
	
   

  	
   

  	
   

  
	
  30.

  	
  NOTICES

  	
  106

  
	
   

  	
   

  	
   

  
	
  31.

  	
  CALCULATIONS
  AND CERTIFICATES

  	
  108

  
	
   

  	
   

  	
   

  
	
  32.

  	
  PARTIAL
  INVALIDITY

  	
  109

  
				



 


I

















 


	
  33.

  	
  REMEDIES
  AND WAIVERS

  	
  109

  
	
   

  	
   

  	
   

  
	
  34.

  	
  AMENDMENTS
  AND WAIVERS

  	
  109

  
	
   

  	
   

  	
   

  
	
  35.

  	
  COUNTERPARTS

  	
  113

  
	
   

  	
   

  	
   

  
	
  36.

  	
  CONFIDENTIALITY

  	
  113

  
	
   

  	
   

  	
   

  
	
  37.

  	
  GOVERNING
  LAW

  	
  116

  
	
   

  	
   

  	
   

  
	
  38.

  	
  ENFORCEMENT

  	
  116

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 1
  THE ORIGINAL PARTIES

  	
  117

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 2
  CONDITIONS PRECEDENT

  	
  120

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 3
  UTILISATION REQUEST

  	
  131

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 4
  MANDATORY COST FORMULAE

  	
  132

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 5
  FORM OF TRANSFER CERTIFICATE

  	
  135

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 6
  FORM OF ACCESSION LETTER

  	
  138

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 7
  FORM OF RESIGNATION LETTER

  	
  141

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 8
  FORM OF COMPLIANCE CERTIFICATE

  	
  142

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 9
  EXISTING SECURITY, GUARANTEES AND INTERCOMPANY LOANS

  	
   

  
	
   

  	
  PART A
  EXISTING SECURITY AND GUARANTEES

  	
  144

  
	
   

  	
   

  	
   

  
	
   

  	
  PART B
  EXISTING INTERCOMPANY LOANS

  	
  147

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 10
  EXISTING EXTERNAL INDEBTEDNESS

  	
  151

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 11
  TIMETABLES

  	
  154

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 12
  REQUIRED AMENDMENTS

  	
  155

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 13
  REQUIRED ACCESSIONS AND CONSENTS

  	
  157

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 14
  REQUIRED TRANSFERS

  	
  160

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 15
  TRANSACTION SECURITY DOCUMENTS

  	
  161

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 16
  FORM OF INCREASE CONFIRMATION

  	
  164

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 17
  ENGLISH LAW PROVISIONS

  	
  167

  
	
   

  	
   

  	
   

  
	
  SIGNATURES

  	
  170

  



 


II





















 


THIS AGREEMENT (also
referred to as the Potlatch 09) is dated 7 May 2003,
as amended and restated pursuant to an amending agreement dated 18 November 2005
and pursuant to an amending agreement dated 27 August 2009 and made
between:


 


(1)           SAPPI LIMITED a company incorporated in
South Africa (registered number 1936/008963/06) with its registered office in
Johannesburg, South Africa (the Company);


 


(2)           SAPPI PAPIER HOLDING GMBH, a company incorporated
in Austria (registered number FN 167931h) with its registered office in
Gratkorn, Austria, as borrower (the Borrower);


 


(3)           THE COMPANIES listed in Part A of
Schedule 1 (The Original Parties) as original
guarantors (the Original Guarantors);


 


(4)           BAWAG P.S.K. BANK FÜR ARBEIT UND WIRTSCHAFT UND ÖSTERREICHISCHE
POSTSPARKASSE AG, CALYON, ERSTE BANK DER OESTERREICHISCHEN SPARKASSEN AG,
INVESTKREDIT BANK AG, KBC BANK NV, THE ROYAL BANK OF SCOTLAND PLC
and UNICREDIT BANK AUSTRIA AG as mandated
lead arrangers (the Mandated Lead Arrangers);


 


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


 


(6)           UNICREDIT BANK AUSTRIA AG 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:


 


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 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 21.19 (Guarantor Coverage Test).


 


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
24 (Changes to the Obligors).


 


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 Euro in the London foreign exchange market at or about 11:00 a.m.
on a particular day.


 


Amending Agreement
means the amending agreement dated 27 August 2009 pursuant to which the
existing Euro 500,106,406 facility agreement dated 7 May 2003, as
amended and restated pursuant to an amending agreement dated 18 November 2005,
is, subject to the terms and conditions set forth therein, amended and
restated.


 


Annual Update has the
meaning given to that term in paragraph (a)(ii) of Clause 19.4 (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 Guarantor
means a Guarantor incorporated in the Republic of Austria.


 


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


 


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


 


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


 


Availability Period
means the period from and including 7 May 2003 to and including 31 July 2003.


 


Available Commitment
means a Lender’s Commitment minus:


 


(a)           the
amount of its participation in any outstanding Loans; and


 


(b)           in
relation to any proposed Utilisation, the amount of its participation in any
Loans that are due to be made on or before the proposed Utilisation Date.


 


2

















 


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 RCF Facility) which is
required to be made available in order to satisfy the condition precedent set
out in paragraph 5(h) of Part A of Schedule 2 (Conditions Precedent).


 


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.


 


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


 


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


 


Bonds means the
USD 300,000,000 12% and Euro 350,000,000 11.75% Senior Secured Notes
due 2014 and 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
Sappi Papier Holding GmbH, a company incorporated in Austria (registered number
FN 167931h) with its registered office in Gratkorn, Austria.


 


Break
Costs means (i) as long as and to the
extent a Lender’s participation in any Loan is refinanced by OeKB, the amount
(if any) which is payable by that Lender to OeKB in connection with the
prepayment of any Loan, or (ii) in any other case, the amount by which
interest which a Lender would have received for the period from the date of
receipt of the prepaid principal amount to the last day of the current Interest
Period, had the principal received been paid on the last day of that Interest
Period exceeds the interest which that Lender would be able to obtain by
placing an amount equal to the prepaid principal amount 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 which is a TARGET Day.


 


Change of Control
has the meaning ascribed to such term in paragraph (a)(ii) of Clause 7.5 (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.


 


Closing Date means the
Effective Date as defined in the Amending Agreement.


 


3

















 


Commitment
means:


 


(a)           in
relation to an Original Lender, the amount set opposite its name under the
heading Commitment in Part B of Schedule 1 (The Original
Parties) 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 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 other 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 36 (Confidentiality);
or


 


(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 Obligors’ Agent and the Agent.


 


Default means an
Event of Default or any event or circumstance specified in Clause 22 (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.


 


4

















 


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


 


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


 


5














 


English
Security Document means the English
security document listed in Part I 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:


 


(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,


 


for the offering of deposits in Euro
for a period comparable to the Interest Period of the relevant Loan, to be
determined at 11.00 a.m. London time two TARGET Days before the first day
of any period for which an interest rate is to be determined.


 


Event
of Default means any event or circumstance
specified as such in Clause 22 (Events of Default).


 


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


 


(a)           a
Sappi Manufacturing Group Company;


 


(b)           the
Borrower;


 


(c)           a
Subsidiary of the Borrower; or


 


(d)           Sappi
Holding GmbH.


 


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


 


Existing
RCF Facility means the existing Euro 600,000,000
revolving credit facility made available to the Borrower 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 Euro term loan facility made available under this Agreement as
described in Clause 2.1 (The Facility).


 


6

















 


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 the Borrower setting out the fees payable by the Borrower in
connection with the Facility.


 


Finance
Document means this Agreement, the Amending
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 Obligors’ Agent.


 


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 22.5 (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);


 


(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 


 


7

















 


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
(i) 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 D 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 the Borrower, IFRS; and


 


(c)           in
relation to each Obligor (other than the Company and the Borrower), 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 E 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.


 


Guarantor
means an Original Guarantor or an Additional Guarantor, unless it has ceased to
be a Guarantor in accordance with Clause 24 (Changes to
the Obligors).


 


Guarantor
Coverage Group means the Borrower and the
Subsidiaries of the Borrower.


 


Guarantor
Coverage Test has the meaning given to that term in
paragraph (a) of Clause 21.19 (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.


 


8

















 


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 Schedule 16 (Form of Increase
Confirmation) or any other form agreed between the Agent and the
Obligors’ Agent.


 


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 RCF 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:


 


(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;


 


9

















 


(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 UK Banking Act 2009 and/or has instituted against it a bank insolvency
proceeding pursuant to Part 2 of the UK Banking Act 2009 or a bank
administration proceeding pursuant to Part 3 of the UK 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.


 


Intercompany
Financings means the financings from the
Borrower to Sappi Lanaken Press Paper N.V., Belgium, of EUR 228,600,000, S.D.
Warren Company, USA of USD 130,000,000 and Sappi UK Holdings BV, Netherlands of
EUR 133,179,102 for the purpose of the acquisition of Potlatch Corporation’s
coated fine paper division for USD 480,000,000.


 


Intercreditor
Agreement means an intercreditor agreement in
relation to, among other things, the sharing and ranking of the Transaction
Security to be entered into on or before the Signing Date between, among
others, the Original Obligors, the Lenders, the RCF Lenders and the Bond
Trustee.


 


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).


 


10

















 


Interest
Period means, in relation to a Loan, each
period determined in accordance with Clause 9 (Interest
Periods) and, in relation to an Unpaid Sum, each period determined
in accordance with Clause 8.3 (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, financial institution, trust, fund or other entity which has become a
Party as a Lender in accordance with Clause 23 (Changes to
the Lenders),


 


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


 


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)           as
long as there are no Outstandings, a Lender or Lenders whose Commitments
aggregate more than 66 2/3 per cent. of the Total Commitments (or, if the Total
Commitments have been reduced to zero, aggregated more than 66 2/3 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 66 2/3 per cent. of the Facility then
outstanding.


 


Mandate
Letter means the letter dated on or about
the date of this Agreement addressed by the Mandated Lead Arrangers to the
Borrower.


 


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


 


Margin
means 6.25 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 commencement of an 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:


 


11

















 


	
  (A)

  	
   

  	
  (B)

  
	
  S&P/Moody’s Rating

  	
   

  	
  Margin (% p.a.)

  
	
  BBB-/Baa3 or better

  	
   

  	
  4.00

  
	
  BB+/Ba1

  	
   

  	
  5.00

  
	
  BB/Ba2

  	
   

  	
  5.50

  
	
  BB-/Ba3

  	
   

  	
  6.25

  
	
  B+/B1
  or lower

  	
   

  	
  7.50

  



 


(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 20 (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)           the
Borrower; and


 


(b)           any
Subsidiary of the Borrower (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 20 (Financial Covenants)
representing 5 per cent. or more of the consolidated EBITDA (as defined in
Clause 20 (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)(f) of Part A 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 19.1 (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:


 


12

















 


(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.


 


Negotiation
Period means the period which is the
earliest to expire of:


 


(a)           one
Month from the date on which the Borrower is notified by the Agent that any
Lender who participates in any Loans is obliged to prepay the OeKB Refinancing;


 


(b)           one
Month from the date on which the Borrower becomes aware that any Promissory
Note issued in connection with the OeKB Refinancing and/or the aval (Wechselbürgschaft) provided by the Republic of Austria in
connection with any Promissory Note will prematurely cease to be in full force
and effect; and


 


(c)           the
period from the relevant date until the date falling one Business Day prior to
the date on which the relevant Lenders are obliged to prepay the OeKB
Refinancing.


 


Net
Debt has the meaning given to that term
in Clause 20.2 (Financial definitions).


 


New
Financings means this Facility, the RCF
Facility and the Bonds.


 


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


 


Obligor
means the Borrower or a Guarantor.


 


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


 


OeKB means
Oesterreichische Kontrollbank AG.


 


OeKB
Refinancing means the method by which the
Lenders, following the issue of Promissory Notes, will refinance their
respective participations in any Loan (subject to Clause 7.3 (OeKB Requirement)).


 


OeKB
Financing Rate means with regard to Interest
Periods


 


(a)           ending
on or before 31 December 2010, 3.60 per cent per annum; and


 


13

















 


(b)           ending
after 31 December 2010, the floating interest rate per annum of the export
financing scheme operated by OeKB (including the applicable liquidity costs – Aufschlag) determined and published by OeKB from time to
time for the relevant period.


 


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, S.D. 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 S.D.
Warren Company for their respective Financial Years ended in September or December 2008
as applicable; and (iii) the unaudited consolidated interim report of each
of the Company and the Borrower 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 the Borrower.


 


Original
Obligor means the Borrower or an Original
Guarantor.


 


Outstandings means
the aggregate 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 any currency or currencies).


 


14

















 


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:


 


(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 7.6 (Disposal
Proceeds); and


 


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


 


Promissory
Notes means the promissory notes issued by
the Lenders, and to the extent applicable, accepted by the Borrower, in the
form prescribed by OeKB in an amount equal to the aggregate of the Total
Commitments, avalised (versehen mit einer
Wechselbürgschaft) by the Republic of Austria, which – for avoidance
of doubt – does not constitute Security for the Lenders under this Agreement.


 


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 12 (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.


 


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 the Borrower’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.


 


RCF
Facility means an up to Euro 209,000,000
revolving credit facility to be made available to the Borrower and others
pursuant to a credit agreement to be dated on or before the Signing Date, made
between, amongst others, the Borrower, the Original Borrowers (as defined
therein), the Original Guarantors (as referred to therein) and the Lenders (as
referred to therein).


 


RCF
Lenders means the lenders under the RCF
Facility.


 


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.


 


15














 


Reference
Banks means the principal offices in
Brussels of the Mandated Lead Arrangers or such other banks as may be appointed
by the Agent in consultation with the Obligors’ Agent.


 


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 20.2 (Financial definitions).


 


Repayment
Date means 30 April 2014.


 


Repayment
Instalment has the meaning given to that term in
Clause 6.1 (Repayment of Loans).


 


Repayment
Instalment Date  means
each due date of a Repayment Instalment pursuant to Clause 6.1 (Repayment of Loans).


 


Repeating Representations means each of the
representations set out in Clauses 18.1 (Status) to 18.6
(Governing law and enforcement)
inclusive, Clause 18.9 (No Default),
paragraph (e) of Clause 18.10 (No misleading information),
Clause 18.11(e)(ii) (Financial Statements),
Clause 18.13 (Business Authorisations), Clause
18.14 (Pari passu ranking), Clause 18.21 (Centre of main interests and establishments), Clause 18.26 (Representations relating to Guarantee by Austrian Guarantors),
Clause 18.27 (Representation relating to the Borrower),
Clause 18.28 (Good title to assets) and Clause
18.30 (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 13 (Required
Accessions and Consents).


 


Required Amendments
means the amendments required to the relevant Existing Finance Documents as set
out in Schedule 12 (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 13 (Required
Accessions and Consents).


 


Required Transfers
means the transfers by Lenders as set out in Schedule 14 (Required
Transfers).


 


Reservations
means the principle that remedies 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, 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 


 


16

















 


delivered to the Agent
pursuant to paragraph 3 of Part A of Schedule 2 (Conditions
Precedent) or paragraph 14 or 18 of Part B of Schedule 2 (Conditions Precedent).


 


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


 


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(i) of Part A of Schedule 2 (Conditions Precedent).


 


Screen
Rate means 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 Obligors’ Agent 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 the
Amending Agreement.


 


SISA means Sappi International SA.


 


South
African Obligor means an Obligor incorporated in
South Africa.


 


South
African Security Documents means each of the South
African security documents listed in Part F 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).


 


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


 


17

















 


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,


 


provided, however, that solely for
the purpose of the calculations pursuant to paragraphs (a) and (b) above,
the Total Commitments and the aggregate Commitments of UniCredit Bank Austria
AG and its successors and assignees, or the aggregate participations of
UniCredit Bank Austria AG and its successors and assignees in the Facility then
outstanding, as the case may be, shall be reduced by an amount so that Super
Majority Lenders cannot be achieved without


 


(i)                                    the
Commitments of an Original Lender, when aggregated with the Commitments of its
successors and assignees; or


 


(ii)                                 the
aggregate participations of an Original Lender and its successors and assignees
in the Facility then outstanding,


 


in respect of which Original Lender a
Commitment of EUR 40,000,000 or more is set opposite its name under the heading
Commitment in Part B of Schedule 1 (The Original
Parties).


 


Swiss
Security Documents means each of the Swiss
security documents listed in Part H 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.


 


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.


 


18

















 


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 12 (Tax gross-up and indemnities).


 


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 21.8 (Disposals) and the
Company has confirmed this is the case.


 


Total
Commitments means the aggregate of the
Commitments, being Euro 400,085,124.80 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 15 of Part B 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 Schedule 5 (Form of Transfer
Certificate) or any other form agreed between the Agent and the
Obligors’ Agent.


 


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


 


(a)                                 the
proposed Transfer Date specified in the Transfer Certificate; and


 


(b)                                 the
date on which the Agent executes the Transfer Certificate.


 


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 12 (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).


 


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 G of Schedule 15 (Transaction Security Documents) in each case securing the
Secured Obligations.


 


19

















 


Utilisation
means a utilisation of the Facility.


 


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


 


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 the Borrower 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, the Borrower, the Company, certain subsidiaries of the
Company listed in it 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 Obligors’ Agent 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);


 


(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;


 


20

















 


(vii)                             guarantee means (other than in
Clause 17 (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 Vienna time;


 


(b)                                 where
there is reference in this Agreement to any amount, limit or threshold
specified in Euro, in ascertaining whether or not that amount, limit or
threshold has been attained, broken or achieved, as the case may be, a non-Euro
amount shall be counted on the basis of the equivalent in Euro 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
22.1 (Non-payment);


 


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


 


21

















 


(iii)                               Clause
22.3 (Other obligations) arising as a result
of a breach of Clause 21.7 (Negative pledge),
Clause 21.8 (Disposals), 21.16 (Acquisitions and Joint Ventures) or Clause 21.22 (Dividend restriction);


 


(iv)                                Clause
22.6 (Insolvency);


 


(v)                                   Clause
22.7 (Insolvency Proceedings);


 


(vi)                                Clause
22.8 (Creditors’ process);


 


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


 


(viii)                          Clause
22.10 (Unlawfulness);


 


(ix)                                Clause
22.11 (Repudiation);


 


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


 


(xi)                                Clause
22.15 (Audit qualification).


 


1.3          Currency
symbols and definitions


 


EUR
and Euro means the single currency unit
of the Participating Member States.


 


1.4          Dutch
Terms


 


In this Agreement, where
it relates to a Dutch Guarantor, 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


 


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


 


(b)                                 a
winding-up, administration or dissolution includes a Dutch Guarantor 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.


 


22

















 


1.5          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.


 


2.             THE FACILITY


 


2.1          The
Facility


 


Subject to the terms of
this Agreement, the Lenders make available to the Borrower an amortising term
loan facility in an aggregate amount of Euro 400,085,124.80.


 


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
Borrower 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 7.10 (Right of Cancellation of a Defaulting Lender) or the
Commitments of a Lender in accordance with Clause 7.1 (Illegality),
request that the Total Commitments be increased in an aggregate amount 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 


 


23

















 


Lender and those Finance Parties
would have assumed and/or acquired had the Increase Lender been an Original
Lender;


 


(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 Borrower 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)                                     the
execution by the Agent of an Increase Confirmation from the relevant Increase
Lender;


 


(ii)                                  in
relation to an Increase Lender 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;


 


(B)                                receipt
by the Agent of a written confirmation from OeKB (in form and substance
satisfactory to the Agent) that OeKB agrees to the Increase Lender becoming a
Lender; and


 


(C)                               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 Obligors’ Agent and the Increase
Lender.


 


(c)                                  Each
Increase Lender, by executing the Increase Confirmation, 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 Obligors’ Agent or the increase in the
Total Commitments is assumed by an existing Lender, the Borrower 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 the Borrower 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)                                 The
Borrower may pay to the Increase Lender a fee in the amount and at the times
agreed between the Borrower and the Increase Lender in a Fee Letter.


 


(f)                                     Clause
23.4 (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;


 


24

















 


(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 the
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 Obligors’ 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;


 


25














 


(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


 


The Borrower shall apply all amounts
borrowed by it under the Facility for the refinancing of the Intercompany
Financings and any costs and expenses incurred in connection with the entering
into the Finance Documents.


 


3.1          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


 


The Borrower may not deliver a
Utilisation Request unless the Agent has received all of the documents and
other evidence listed in Part A of Schedule 2 (Conditions
Precedent) in form and substance satisfactory to the Agent. The
Agent shall notify the Obligors’ Agent 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:


 


(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          Maximum number of Loans


 


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


 


(b)                                 The
Borrower may not request that a Loan be divided if, as a result of the proposed
division, three or more Loans would be outstanding.


 


5.             UTILISATION


 


5.1          Delivery of a Utilisation
Request


 


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


 


26

















 


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 9 (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 Euro.


 


(b)                                 The
amount of the proposed Loan must be an amount which is not more than the
Available Facility and which is a minimum of Euro 25,000,000 or, if less, the
Available Facility, and an integral multiple of Euro 5,000,000.


 


5.4          Lenders’ participation


 


(a)                                 If
the conditions set out in this Agreement have been met and subject to Clause 6
(Repayment), each Lender shall make its
participation in each Loan available to the Agent for the account of the
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.


 


(c)                                  The
Agent shall notify each Lender of the amount of each Loan and the amount of its
participation in that Loan, 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.             REPAYMENT


 


6.1          Repayment of Loans


 


(a)                                 The
Borrower shall repay the Loans on each date specified in Column (A) below
in an amount so that as of such date in aggregate no Loans in excess of the
amount specified opposite such date in Column (B) below are outstanding:


 


27

















 


	
   

  	
  (A)

  	
   

  	
  (B)

  
	
   

  	
  31 December 2010

  	
   

  	
  320,000,000

  
	
   

  	
  30 June 2011

  	
   

  	
  274,000,000

  
	
   

  	
  31 December 2011

  	
   

  	
  228,000,000

  
	
   

  	
  30 June 2012

  	
   

  	
  182,000,000

  
	
   

  	
  31 December 2012

  	
   

  	
  136,000,000

  
	
   

  	
  30 June 2013

  	
   

  	
  90,000,000

  
	
   

  	
  31 December 2013

  	
   

  	
  44,000,000

  
	
   

  	
  30 April 2014

  	
   

  	
  0

  



 


(each such repayment instalment a Repayment
Instalment).


 


(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 Repayment Date.


 


6.2          Reborrowing


 


The Borrower may not
reborrow any part of the Facility which is repaid.


 


7.             PREPAYMENT AND CANCELLATION


 


7.1          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 Obligors’ Agent, the Commitment of that Lender will be
immediately cancelled; and


 


(c)                                  the
Borrower shall repay that Lender’s participation in the Loans on the last day
of the Interest Period for each Loan occurring after the Agent has notified the
Obligors’ Agent 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).


 


7.2          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)                                 the
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


 


28

















 


(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.


 


7.3          OeKB Refinancing


 


If the Borrower is notified by the
Agent that a Lender who participates in any Loan is obliged to prepay the OeKB
Refinancing or the Borrower becomes aware that any Promissory Note issued in
connection with the OeKB Refinancing and/or the aval (Wechselbürgschaft)
provided by the Republic of Austria in connection with any Promissory Note will
prematurely cease to be in full force and effect, then the Borrower and the
relevant Lender shall negotiate in good faith for a period of not less than the
Negotiation Period with a view to agreeing an alternative interest rate based
on EURIBOR to apply to the relevant Loans. If no such agreement is reached with
the relevant Lender during the Negotiation Period, the Borrower must as soon as
practicable upon the expiry of the Negotiation Period and in any event no later
than one Business Day prior to the date on which such Lender is obliged to
prepay the OeKB Refinancing, prepay that Lender’s participation in the relevant
Loans.


 


7.4          Intercompany Financings


 


If the aggregate outstanding amount
of the Intercompany Financings is lower than the Outstandings, the Borrower
shall prepay the difference amount. The Borrower shall notify the Agent at each
Quarter Date of the amount, if any, of such difference amount and shall prepay
an amount equal to such difference within 30 Business Days from a respective
request by the Agent. The Agent may also demand prepayment of an amount equal
to such difference determined on the basis the Borrower’s most recent financial
statements delivered pursuant to Clause 19.1 (Financial
statements).


 


7.5          Exit


 


(a)                                 For
the purposes of this Clause 7.5:


 


(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; the respective English law provisions are attached to this
Agreement as Schedule 17 (English Law Provisions);
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,


 


29

















 


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.


 


7.6          Disposal Proceeds


 


(a)                                 For
the purposes of this Clause 7.6:


 


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) through (xii) of
paragraph (a) of Clause 21.8 (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 Borrower 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 20 (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 19.2 (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 and any EBITDA attributable to any asset


 


30

















 


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 RCF Facility and a corresponding cancellation of Commitments
and commitments under the RCF Facility (on a pro rata basis) until such time as
there are no Loans or loans under the RCF 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 RCF Facility, the
Borrower shall prepay the Loans (or loans under the RCF Facility) promptly upon
receipt of the Disposal Proceeds by the respective Group Company.


 


7.7          Voluntary cancellation


 


The Borrower 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
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 7.7 shall reduce the Commitments of the Lenders rateably.


 


7.8          Voluntary prepayment of
Loans


 


The Borrower 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 amount of the Loan by a
minimum amount of Euro 5,000,000), provided that any such prepayment may
only be made after the last day of the Availability Period (or, if earlier,
after the day on which the Available Facility is zero) and shall be applied to
the obligations under Clause 6.1 (Repayment of Loans)
in the inverse order of maturity or as otherwise approved in writing by OeKB.


 


31

















 


7.9          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 12.2 (Tax gross-up);
or


 


(ii)                                  any
Lender claims indemnification from an Obligor under Clause 12.3 (Tax indemnity) or Clause 13.1 (Increased
Costs),


 


the Borrower 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 Borrower has given notice under paragraph (a) above
(or, if earlier, the date specified by the Borrower in that notice), the
Borrower shall repay that Lender’s participation in that Loan.


 


(d)                                 The
Borrower 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 23 (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 Borrower which confirms its willingness to assume and does
assume all the obligations of the transferring Lender in accordance with Clause
23 (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 23.7 (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
Borrower 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


 


(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.


 


32

















 


7.10        Right of Cancellation of a
Defaulting Lender


 


(a)                                 If
any Lender becomes a Defaulting Lender, the Borrower 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.


 


7.11        Restrictions


 


(a)                                 Any
notice of cancellation or prepayment given by any Party under this Clause 7
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)                                  The
Borrower may not reborrow any part of the Facility which is prepaid.


 


(d)                                 The
Borrower 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 7 it shall promptly forward a
copy of that notice to either the Obligors’ Agent or the affected Lender, as
appropriate.


 


(g)                                 If
all or part of a Loan is repaid or prepaid, an amount of the Commitments equal to
the amount 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 the Borrower to (or procure
a Group Company to) make a prepayment under Clause 7.6 (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 7.6 (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 such amount in
prepayment of the relevant facilities in accordance with the other provisions
of this Clause 7.


 


(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


 


33

















 


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 7.6 (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 7.6 (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 7.6 (Disposal Proceeds), provided that such
prepayment is in accordance with the terms of Clause 7.6 (Disposal
Proceeds).


 


8.             INTEREST


 


8.1          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)                                 the
OeKB Financing Rate; and


 


(c)                                  Mandatory
Cost, if any.


 


8.2          Payment of interest


 


The Borrower shall pay accrued
interest on each Loan on the last day of each Interest Period.


 


8.3          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 2.00 per
cent. higher than the rate determined pursuant to Clause 8.1 (Calculation of Interest), provided that if the OeKB
Refinancing is not extended correspondingly at an interest rate equal to or
lower than the then prevailing OeKB Financing Rate, the OeKB Financing Rate
shall be replaced by the higher of


 


(i)                                     the
applicable EURIBOR for the relevant Interest Period as specified by the Agent
plus 2 per cent per annum; and


 


(ii)                                  the
rate notified to the Agent by a Lender as soon as practicable after the due date,
to be that which expresses as a percentage rate per annum the cost to that
Lender of funding or maintaining its participation in that Loan from whatever
source it may reasonably select,


 


for the purpose of calculating the default interest.


 


34

















 


(b)                                 Any
interest accruing under this Clause 8.3 shall be


 


(i)                                     immediately
payable by the Obligor on demand by the Agent; and


 


(ii)                                  compounded
with the respective overdue amount at the end of each Interest Period applicable
to that overdue amount but shall remain immediately due and payable.


 


8.4          Notification of rates of
interest


 


The Agent shall promptly notify the
Lenders and the Borrower of the determination of a rate of interest under this
Agreement (including the OeKB Financing Rate and the applicable Margin).


 


9.             INTEREST PERIODS


 


9.1          Interest Periods


 


The Interest Periods applicable to a
Loan shall be of three months, provided that


 


(a)                                 the
first Interest Period for a Loan shall start on the first Utilisation Date and
shall end on the last day of the calendar quarter in which such Utilisation
Date falls;


 


(b)                                 each
other Interest Period shall commence on the last day of the preceding Interest
Period; and


 


(c)                                  an
Interest Period for a Loan shall not extend beyond the Repayment Date.


 


9.2          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).


 


10.          BREAK
COSTS


 


(a)                                 The
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 the Borrower on a day other than the last day of an
Interest Period, a Repayment Instalment Date or the Repayment Date, whichever
is applicable for that Loan or Unpaid Sum.


 


(b)                                 Each
Lender shall, as soon as reasonably practicable after a demand by the Agent,
confirm to the Borrower the amount of its Break Costs.


 


11.          FEES


 


11.1        Commitment fee


 


(a)                                 Subject
to this Clause 11.1, the Borrower shall pay to the Agent (for the account
of each Lender) a fee 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.


 


35














 


(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.


 


11.2        Arrangement and Upfront
fee


 


The Borrower shall pay to the
Mandated Lead Arrangers the arrangement and upfront fee in the amount and at
the time agreed in the Fee Letters.


 


11.3        Administration fee


 


The Borrower shall pay an
administration fee (Wechselbürgschaftentgelt)
directly to OeKB. Subject to any other determination made by OeKB (in respect
of the calculation basis, the applicable rate, the due dates or otherwise), the
administration fee amounts to up to 0.8 per cent per annum, is calculated in
advance based on the Outstandings at the beginning of each calendar quarter and
is payable in respect of each commenced calendar quarter on the first day of
each such calendar quarter.


 


11.4        Agency fee


 


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


 


12.          TAX
GROSS UP AND INDEMNITIES


 


12.1        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


 


36

















 


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 12.2 (Tax gross-up)
or a payment under Clause 12.3 (Tax indemnity).


 


Treaty Lender
means a Finance Party which is treated as a resident of a Treaty State for the
purposes of the 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).


 


(b)                                 In
this Clause 12 a reference to determines
or determined means a determination
made in the absolute discretion of the person making the determination.


 


12.2        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 12.8 (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


 


37

















 


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 12.7 (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 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 12.2 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


 


38

















 


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.


 


12.3        Tax indemnity


 


(a)                                 Subject
to Clause 12.5 (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 12.5 (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 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 12.2 (Tax gross-up);
or


 


(B)                                would
have been compensated for by an increased payment under Clause 12.2 (Tax gross-up) but was not so compensated solely because none
of the circumstances in paragraph (d) of Clause 12.2 (Tax gross-up)
existed or applied or because Clause 12.8 (Exemptions from gross up)
applied.


 


39

















 


(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
Obligors’ Agent.


 


(e)                                 A
Protected Party shall, on receiving a payment from an Obligor under this
Clause 12.3, notify the Agent.


 


12.4        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.


 


12.5        Stamp Taxes


 


The Borrower 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 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 with respect to any Existing Finance Document or
any other document which relates to any Existing Finance Document, the Borrower
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 Clause 12.5 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.


 


12.6        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 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


 


40

















 


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 12.6 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.


 


12.7        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.


 


12.8        Exemptions from gross up


 


Notwithstanding anything contained in
this Clause 12 (Tax gross up and indemnities), no
additional amount will be payable to a Lender under Clause 12.2 (Tax gross-up) to the extent that such additional amount
would not be payable if that Lender had complied with its obligations under
Clause 12.7 (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 12.2 (Tax gross-up)
or Clause 12.7 (Filings).


 


13.          INCREASED
COSTS


 


13.1        Increased Costs


 


(a)                                 Subject
to Clause 13.3 (Exceptions), the Borrower 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 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,


 


41

















 


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.


 


13.2        Increased cost claims


 


(a)                                 A
Finance Party intending to make a claim pursuant to Clause 13 (Increased costs) shall notify the Agent of the event giving
rise to the claim, following which the Agent shall promptly notify the Obligors’
Agent.


 


(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.


 


13.3        Exceptions


 


Clause 13 (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 12.3 (Tax indemnity)
(or would have been compensated for under Clause 12.3 (Tax
indemnity) but was not so compensated solely because one of the
exclusions in paragraph (c) of Clause 12.3 (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).


 


14.          OTHER
INDEMNITIES


 


14.1        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,


 


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.


 


42

















 


14.2        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 27 (Sharing among the Lenders);


 


(c)                                  funding,
or making arrangements to fund, its participation in a Loan requested by the
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 the Borrower or the Obligors’ Agent.


 


14.3        Indemnity to the Agent


 


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


 


15.          MITIGATION
BY THE LENDERS


 


15.1        Mitigation


 


(a)                                 Each
Finance Party shall, in consultation with the Obligors’ Agent, 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 7.1 (Illegality),
Clause 12 (Tax gross up and indemnities), Clause 13
(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.


 


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


 


15.2        Limitation of liability


 


(a)                                 The
Borrower 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 15.1 (Mitigation).


 


(b)                                 A
Finance Party is not obliged to take any steps under Clause 15.1 (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.


 


43

















 


16.          COSTS
AND EXPENSES


 


16.1        Transaction expenses


 


The Borrower 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 that no Utilisation
is made under this Agreement.


 


16.2        Amendment costs


 


If (a) an Obligor requests an
amendment, waiver or consent or (b) an amendment is required pursuant to
Clause 28.10 (Change of currency), the Borrower
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 in the
case of the Security Agent, by any Receiver or Delegate) in responding to,
evaluating, negotiating or complying with that request or requirement.


 


16.3        Enforcement costs


 


The Borrower 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.


 


17.          GUARANTEE
AND INDEMNITY


 


17.1        Guarantee and indemnity


 


Each Guarantor irrevocably and
unconditionally jointly and severally:


 


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


 


(b)                                 undertakes
with each Finance Party that whenever the 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.


 


44

















 


17.2        Continuing guarantee:
nature of guarantee


 


(a)                                 Subject
to Clause 17.9, 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).


 


17.3        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.


 


17.4        Waiver of defences


 


The obligations of each Guarantor
under this Clause 17 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 17 (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;


 


45














 


(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.


 


17.5        Guarantor
Intent


 


Without prejudice to the generality
of Clause 17.4 (Waiver of defences), each
Guarantor expressly confirms that subject to the limitations contained in this
Clause 17, 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.


 


17.6        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
17.  This waiver applies irrespective of
any law or any provision of a Finance Document to the contrary.


 


17.7        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 17.


 


17.8        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 17:


 


46

















 


(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 17.1 (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 28 (Payment Mechanics).


 


17.9        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:


 


(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.


 


17.10      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.


 


17.11      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 17.11 shall be limited,
at any time, to a maximum aggregate amount equal to the greater of:


 


47

















 


(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 (i) the principal amount borrowed by the Belgian Guarantor pursuant to
this Agreement and (ii) 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).


 


17.12      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 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 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 (iv) 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.


 


48

















 


17.13      Dutch
Guarantee Limitation


 


Notwithstanding any other provision
of this Agreement, the guarantee, indemnity and other obligations of any Dutch
Guarantor under this Clause 17 (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 17 (Guarantee
and Indemnity) and other provisions of this Agreement shall be
construed accordingly.


 


17.14      Finnish
Guarantee Limitation


 


(a)           The
liabilities and obligations guaranteed by a Finnish Guarantor in its capacity
as Guarantor under this Clause 17 (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 Borrower under any intragroup loan agreement or loan
agreements between that Finnish
Guarantor and the Borrower (or any direct or
indirect subsidiary of the 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 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 Borrower under any intragroup loan agreement or loan agreements between that Finnish Guarantor and the Borrower (or any
direct or indirect subsidiary of the 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,


 


49

















 


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.


 


17.15      Guarantee
limitations for German Guarantors


 


(a)           Each
Finance Party agrees that the enforcement of the guarantee and indemnity
pursuant to this Clause 17 (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;


 


(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 17, 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 17.15 shall not apply:


 


50

















 


(i)            to
any amounts due and payable under the guarantee and indemnity pursuant to this
Clause 17 (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 17,
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.


 


17.16      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 17 (Guarantee and Indemnity)
shall not exceed the maximum aggregate amount of the obligations of such US
Guarantor under this Clause 17 (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.


 


17.17      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 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.


 


17.18      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).


 


18.          REPRESENTATIONS


 


Each Obligor (except as otherwise
provided herein) makes the representations and warranties set out in this
Clause 18 to each Finance Party on the date of this Agreement.


 


51

















 


18.1        Status


 


(a)           It
is a corporation, limited liability company 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.


 


18.2        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.


 


18.3        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.


 


18.4        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.


 


18.5        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,


 


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


 


18.6        Governing
law and enforcement


 


Subject to the Reservations:


 


52

















 


(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.


 


18.7        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.


 


18.8        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) 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, (ii) reasonable notary fees and immaterial registration
fees to be paid in connection with the registration of the Dutch Security
Documents).


 


18.9        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.


 


18.10      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 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 


 


53

















 


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 respect
as at the date it was provided.


 


18.11      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, S.D. Warren Company, Sappi Netherlands BV, the Company and the Borrower,
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, S.D. 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 19.1 (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.


 


18.12      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).


 


18.13      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.


 


18.14      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 


 


54

















 


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.


 


18.15      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.


 


18.16      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 21.9 (Financial Indebtedness).


 


18.17      Environmental
claim


 


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


 


18.18      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.


 


18.19      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.


 


18.20      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.


 


55














 


(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.


 


18.21      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
incorporated 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 its jurisdiction of incorporation and it has no “establishment” (as
that term is used in Article 2(h) of the Regulations) in any other
jurisdiction.


 


18.22      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.


 


18.23      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.


 


18.24      Insolvency


 


No:


 


(a)           corporate
action, legal proceeding or other formal procedure or convening of a meeting
described in Clause 22.7 (Insolvency proceedings);
or


 


(b)           creditor’s
process described in Clause 22.8 (Creditor’s process),


 


has been taken or, to the knowledge
of the Company, threatened in relation to any Obligor, Material Subsidiary or
Sappi Manufacturing and none of the circumstances described in Clause 22.6 (Insolvency) applies to any Obligor, Material Subsidiary or
Sappi Manufacturing.


 


18.25      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.


 


56

















 


18.26      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 17 (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 17 (Guarantee and Indemnity), the Guarantor receives an adequate
arm’s length guarantee fee (Avalprovision).


 


18.27      Representation
relating to the Borrower


 


The 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.


 


18.28      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.


 


18.29      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.


 


18.30      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.


 


18.31      Times
when representations made


 


(a)           Except
as otherwise provided herein, the representations and warranties set out in
this Clause 18 (except for Clause 18.10 (No misleading information))
are made by each Original Obligor on the Signing Date.


 


57

















 


(b)           The
representations and warranties set out in Clause 18.10 (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 18.5 (Validity and admissibility in evidence)
and Clause 18.8 (No filing or stamp taxes) are
deemed to be made by each Additional Guarantor on the day on which it becomes
an Additional Guarantor (or it is proposed that it becomes an Additional
Guarantor), by reference to the facts and circumstances then existing.


 


(e)           The
representation and warranty set out in paragraph (e) of Clause 18.11 (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 19.1 (Financial statements) and
paragraph (c) of Clause 19.1 (Financial statements).


 


19.          INFORMATION UNDERTAKINGS


 


19.1        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, the Borrower, Sappi International SA and
(to the extent it remains a Group Company) S.D. Warren Company and (if required
to be produced by law) each other Obligor for that financial year;


 


(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


 


58

















 


(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 the Borrower for
the period of three months ending on such Quarter Date.


 


19.2        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 19.1 (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 the Borrower setting out
(in reasonable detail) computations as to compliance with Clause 20 (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 19.1 (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 19.1 (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 20 (Financial
Covenants)) of each Excluded Subsidiary as a percentage of the consolidated
EBITDA (as defined in Clause 20 (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 the 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.


 


19.3        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 19.1 (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 19.1 (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 Agent that there has been a
material change in GAAP, or the accounting practices or reference periods and
its auditors deliver to the Agent:


 


59

















 


(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 20 (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
20.3 (Financial testing and Adjustments) to
each of the financial statements and interim reports delivered pursuant to this
Clause 19 (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.


 


19.4        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 Group Company
which are reasonably likely to be adversely determined and 


 


60

















 


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.


 


19.5        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).


 


19.6        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 19.1 (Financial
statements) the identity and details of the Material Subsidiaries.


 


19.7        “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.


 


61

















 


(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.


 


19.8        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 Obligors’ Agent 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 Obligors’ Agent 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 Obligors’ Agent 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 Obligors’ Agent 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 Obligors’ Agent 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 


 


62

















 


Website Lender is
satisfied that the circumstances giving rise to the notification are no longer
continuing.


 


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


 


20.          FINANCIAL COVENANTS


 


20.1        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

  
	
  30 December 2012

  	
   

  	
  2.50
  : 1

  
	
  31 March 2013

  	
   

  	
  2.50
  : 1

  
	
  30 June 2013

  	
   

  	
  2.50
  : 1

  






 


63

















 




	
  29 September 2013

  	
   

  	
  2.50
  : 1

  
	
  29 December 2013

  	
   

  	
  2.50
  : 1

  
	
  30 March 2014

  	
   

  	
  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

  
	
  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

  
	
  30 December 2012

  	
   

  	
  4.00
  : 1

  
	
  31 March 2013

  	
   

  	
  4.00
  : 1

  
	
  30 June 2013

  	
   

  	
  4.00
  : 1

  
	
  29 September 2013

  	
   

  	
  4.00
  : 1

  
	
  29 December 2013

  	
   

  	
  4.00
  : 1

  
	
  30 March 2014

  	
   

  	
  4.00
  : 1

  






 


64

















 


(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
7.6 (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 19.2 (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

  
	
  2013

  	
   

  	
  US$266
  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.


 


20.2        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 (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,


 


65














 


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 20.3 (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.


 


20.3        Financial
testing and Adjustments


 


(a)           With
respect to the financial covenant set out in paragraph (b) of Clause 20.1 (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 20.1 (Financial covenants)
shall be tested by reference to each of the financial statements and interim
reports delivered pursuant to Clause 19 (Information Undertakings).


 


(c)           With
respect to the financial covenant set out in paragraph (b) of Clause 20.1 (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.


 


66

















 


20.4        Accounting
terms


 


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


 


21.          GENERAL UNDERTAKINGS


 


The undertakings in this Clause 21
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.


 


21.1        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.


 


21.2        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.


 


21.3        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.


 


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21.4        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.


 


21.5        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 19.1 (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.


 


21.6        Pensions


 


Ech 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.


 


21.7        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:


 


(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;


 


68

















 


(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 A 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;


 


(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 


 


69

















 


exceed
Euro 600,000,000 (or its equivalent in any currency or currencies), provided
that to the extent security created pursuant to paragraph (xvii) 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 21.9 (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.


 


21.8       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;


 


(iii)          of
any assets by any Group Company which is not an Obligor to another Group
Company;


 


70

















 


(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 21.7 (Negative pledge) to the extent such arrangement constitutes
a Disposal;


 


(x)           occurring
directly as a result of any arrangement permitted by Clause 21.13 (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 21.10 (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 21.9 (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).


 


71

















 


(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.


 


21.9       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 the Borrower
(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
External Indebtedness);


 


72

















 


(ii)           any
Financial Indebtedness incurred in respect of any derivative or hedging transaction
permitted pursuant to Clause 21.17 (Hedging);


 


(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 21.13 (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 RCF Facility, under the Existing RCF
Facility;


 


(ix)          arising
under the New Financings or the loan by PE Paper Escrow GmbH to the Borrower 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.


 


73

















 


21.10     Merger


 


The
Obligors shall ensure that no Group Company shall enter into any amalgamation,
demerger, merger, consolidation or corporate reconstruction other than:


 


(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 the Borrower with the
Borrower as the surviving entity;


 


(c)           a
solvent liquidation or reorganisation of a Guarantor 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


 


74

















 


(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).


 


21.11     Change
of Business


 


The
Obligors shall procure that the business of the Group, taken as a whole,
remains the Paper Business.


 


21.12     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.


 


21.13     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 21.9 (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;


 


75














 


(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 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 the
Borrower;


 


(x)                                 any intra-group loans listed in Part B 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)(xviii) 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 21.9 (Financial Indebtedness);


 


(iv)                              any
guarantee given in respect of the netting or set-off arrangements permitted
under Clause 21.7 (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 A of
Schedule 9 (Existing Security, Guarantees and Intercompany
Loans) or any renewals or replacements thereof provided that such
renewals or 


 


76

















 


replacements do 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 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 21.8 (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 21.16 (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 


 


77

















 


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 the Borrower 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 permitted under paragraph
(a)(xii) above exceed Euro 25,000,000 (or its equivalent in any currency or
currencies) at any time.


 


21.14      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.


 


21.15      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 21.7 (Negative pledge).


 


21.16      Acquisitions
and Joint Ventures


 


No Obligor shall (and each Obligor
shall ensure that no Group Company will):


 


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(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 the Borrower
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.


 


21.17      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.


 


21.18      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.


 


21.19      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 20 (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 20 (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 24.2 (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 19.1 (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 


 


79

















 


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 20 (Financial
covenants)) of any Excluded Subsidiary which is not a Guarantor
represents 3 per cent. or more of consolidated EBITDA (as defined in Clause 20
(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),


 


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 20 (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 represent less than 8 per cent. of the Group Gross Assets.


 


21.20      Ratings


 


The Company shall use reasonable
endeavours to ensure that it remains rated by either S&P or Moody’s.


 


21.21      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 


 


80

















 


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 17.8
(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
17 (Guarantee and Indemnity), immediately
upon that Austrian Guarantor’s first written demand.


 


21.22      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;


 


(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 20.1 (Financial covenants) calculated on a pro-forma basis
specified in the latest Compliance Certificate supplied pursuant to Clause 19.2
(Compliance Certificate) exceeds 4 to 1.


 


21.23      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.


 


21.24      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.


 


21.25      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.


 


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(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.


 


21.26      Limitations
in relation to German Obligors


 


(a)           Clause
21.7 (Negative pledge), 21.8 (Disposals),
21.10 (Merger), 21.11 (Change of
Business), 21.16 (Acquisitions and Joint
Ventures), 21.22 (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 21.26)
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.


 


(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 Obligors’ Agent 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 22.17 (Acceleration).


 


21.27      Promissory
Notes


 


Upon request by a New Lender, the
Borrower shall accept promissory notes issued by such New Lender in the amount
and number required for any OeKB Refinancing in respect of such New Lender.


 


21.28      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:


 


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(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.


 


22.          EVENTS OF DEFAULT


 


Each of the events or circumstances
set out in Clauses 22.1 to 22.16 inclusive is an Event of Default.


 


22.1        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


 


(ii)           (in
the case of (a)(ii) above) five Business Days of its due date.


 


22.2        Financial
covenants and other obligations


 


(a)           Any
requirement of Clause 20 (Financial covenants),
Clause 19.1 (Financial statements) or Clause
19.2 (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 21.26 (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.


 


22.3        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 22.1 (Non-payment)
and Clause 22.2 (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
Obligors’ Agent of, and (ii) the Company or the relevant Obligor or Non-Obligor
Chargor becoming aware of, the failure to comply.


 


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22.4        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 Obligors’ Agent and (ii) the Company or the relevant
Obligor or Non-Obligor Chargor becoming aware of such representation or
statement being incorrect or misleading.


 


22.5        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 22.5 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.


 


22.6        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
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).


 


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(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).


 


22.7        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 21.10 (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
21.10 (Merger)), receiver, administrator,
administrative receiver, compulsory manager, an a voorlopige
bewindvoerder / administrateur
provisoire, a 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


 


85














 


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


 


(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,


 


22.8        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.


 


22.9        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.


 


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(c)           No Event of Default will occur under
this Clause 22.9 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.


 


22.10      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.


 


22.11      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.


 


22.12      Material
adverse change


 


Any
event or circumstance occurs which has or is reasonably likely to have a
Material Adverse Effect.


 


22.13      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.


 


22.14      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 Material Subsidiary permitted under Clause
21.10 (Merger) or any Disposal permitted under
Clause 21.8 (Disposals)) and such cessation
would result in the Group, as a whole, ceasing to carry on the Paper Business.


 


22.15      Audit
qualification


 


The
auditors of the Company or the Borrower qualify the audited annual financial
statements of the Company or the Borrower 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.


 


22.16      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 


 


87

















 


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.


 


22.17      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 Obligors’ Agent:


 


(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.


 


23.          CHANGES TO THE
LENDERS


 


23.1        Assignments
and transfers by the Lenders


 


Subject
to this Clause 23, 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).


 


23.2        Conditions
of assignment or transfer


 


(a)           An assignment or transfer shall be
notified to the Obligors’ Agent 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:


 


(i)            to OeKB;


 


(ii)           to another Lender or an Affiliate of a
Lender; or


 


(iii)          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 amounts of Euro 5,000,000.


 


(d)           An assignment will only be effective
on:


 


88

















 


(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)           receipt by the Agent of written
confirmation from OeKB (in form and substance satisfactory to the Agent) that
OeKB agrees to the New Lender becoming a Lender;


 


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


 


(iv)           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 Intercredtior Agreement and if the procedure set out in Clause
23.5 (Procedure for transfer) is complied
with.


 


(f)            If:


 


(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 12 (Tax gross-up and
indemnities) or Clause 13 (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.


 


23.3        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, 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.


 


23.4        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;


 


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(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:


 


(i)            accept a re-transfer from a New Lender
of any of the rights and obligations assigned or transferred under this Clause 23;
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.


 


23.5        Procedure
for transfer


 


(a)           Subject to the conditions set out in
Clause 23.2 (Conditions of assignment or transfer)
a transfer is effected in accordance with paragraph (c) below when the
Agent executes an otherwise duly completed Transfer Certificate delivered to it
by the Existing Lender and the New 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.


 


(b)           The Agent shall only be obliged to
execute a Transfer Certificate 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 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 


 


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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


 


(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.


 


23.6        Security
over Lenders’ rights


 


In
addition to the other rights provided to Lenders under this Clause 23, 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 OeKB, 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.


 


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23.7        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 23.5 (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 12 (Tax Gross-up and Indemnities) and 13 (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).


 


23.8        Copy
of Transfer Certificate


 


The
Agent shall, as soon as reasonably practicable after it has accepted and
executed a Transfer Certificate send to the Obligors’ Agent a copy of such
Transfer Certificate. The Borrower confirms that such delivery of a Transfer Certificate
to the Obligors’ Agent shall be considered as a notification of transfer or
assignment towards itself.


 


24.          CHANGES TO THE
OBLIGORS


 


24.1        Assignments
and transfer by Obligors


 


No
Obligor or Non-Obligor Chargor may assign any of its rights or transfer any of
its rights or obligations under the Finance Documents.


 


24.2        Additional
Guarantors


 


(a)           Subject to compliance with the
provisions of paragraphs (a) and (b) of Clause 19.7 (“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 and the proposed Additional
Guarantor deliver to the Agent a duly completed and executed Accession Letter;
and


 


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(ii)           the Agent has received all of the documents
and other evidence listed in Part B of Schedule 2 (Conditions Precedent) in relation to that Additional
Guarantor, each in form and substance satisfactory to the Agent.


 


(b)           The Agent shall notify the Obligors’
Agent 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 B of Schedule 2 (Conditions Precedent).


 


24.3        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 18.5 (Validity and admissibility in evidence)
and 18.8 (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.


 


24.4        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 Obligors’ Agent 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 21.19 (Guarantor
Coverage Test) when calculated on a pro forma basis to take into
account the relevant Third Party Disposal;


 


(iii)          no
payment is due from the Guarantor under Clause 17.1 (Guarantee
and indemnity); and


 


(iv)           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 7.6 (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.


 


24.5        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, 


 


93

















 


subject
to paragraph (c) below, at the cost and request of the Company, to release
those assets, business or shares (or equivalent);


 


(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 21.8 (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 21.8 (Disposals).


 


25.          ROLE OF THE AGENT
AND THE MANDATED LEAD ARRANGERS


 


25.1        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.


 


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25.2        Duties
of the Agent


 


(a)           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 22.1 (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
Obligors’ Agent 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
any payment to be distributed by the Agent to that Lender under the Finance
Documents.


 


25.3        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.


 


25.4        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.


 


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25.5        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.


 


25.6        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 22.1 (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 or the Obligors’s Agent (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.


 


(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 Obligors’ Agent 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.


 


25.7        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 


 


96

















 


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.


 


25.8        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 regulated or prohibited by
applicable law or regulation relating to insider dealing or otherwise.


 


25.9        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.


 


97

















 


(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.


 


25.10      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).


 


25.11      Resignation
of the Agent


 


(a)           The Agent may resign and appoint one of
its Affiliates as successor by giving notice to the Lenders and the Obligors’
Agent.


 


(b)           Alternatively the Agent may resign by
giving notice to the Lenders and the Obligors’ Agent, in which case the
Majority Lenders (after consultation with the Obligors’ Agent) 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 Obligors’ Agent) 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 25 consistent with then current market 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 Obligors’ Agent.


 


(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.


 


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(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 25.  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.


 


25.12      Replacement
of the Agent


 


(a)           After consultation with the Obligors’
Agent, 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.


 


(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 25 (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.


 


25.13      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 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.


 


25.14      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


 


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(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 30.5 (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 30.2 (Addresses) and
paragraph (b) of Clause 30.5 (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.


 


25.15      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 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;


 


100

















 


(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.


 


25.16      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 Obligors’ Agent) appoint another Lender or an Affiliate of a Lender to
replace that Reference Bank.


 


25.17      Agent’s
management time


 


Any
amount payable to the Agent under Clause 14.3 (Indemnity to
the Agent), Clause 16 (Costs and Expenses)
and Clause 25.10 (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 Obligors’ Agent and the Lenders,
and is in addition to any fee paid or payable to the Agent under Clause 11 (Fees).


 


25.18      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.


 


25.19      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,
confidentiality agreement or engagement letter relating to the 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.


 


25.20      Representation by Original Lenders


 


Each Original Lender (other than an Original Lender
resident in Austria for Tax purposes) confirms for the purposes of paragraph (b) of
Clause 12.3 (Tax indemnity) that on the
Signing Date it is a Treaty Lender.


 


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26.          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.


 


27.          SHARING AMONG THE
LENDERS


 


27.1        Payments
to Lenders


 


If
a Lender (a Recovering Lender) receives
or recovers any amount from an Obligor other than in accordance with Clause 28
(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 28 (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 28.6 (Partial payments).


 


27.2        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 28.6 (Partial
payments).


 


27.3        Recovering
Lender’s rights


 


(a)           On a distribution by the Agent under
Clause 27.2 (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.


 


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27.4        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 27.2 (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.


 


27.5        Exceptions


 


(a)           This Clause 27 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.


 


28.          PAYMENT MECHANICS


 


28.1        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) with such bank as the Agent specifies.


 


28.2        Distributions
by the Agent


 


Each
payment received by the Agent under the Finance Documents for another Party
shall, subject to Clause 28.3 (Distributions to an
Obligor) and Clause 28.4 (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 by not less than five 


 


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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).


 


28.3        Distributions
to an Obligor


 


The
Agent may (with the consent of the Obligor or in accordance with Clause 29 (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.


 


28.4        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 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.


 


28.5        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 28.1 (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 28.5 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 25.12 (Replacement
of the Agent), each Party which has made a payment to a trust
account in accordance with this Clause 28.5 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 28.2 (Distributions
by the Agent).


 


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28.6        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.


 


(c)           Paragraphs (a) and (b) above
will override any appropriation made by an Obligor.


 


28.7        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.


 


28.8        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.


 


28.9        Currency
of account


 


(a)           Subject to paragraph (b) and (c) below,
Euro is the currency of account and payment for any sum due from an Obligor
under any Finance Document.


 


(b)           Each payment in respect of costs,
expenses or Taxes shall be made in the currency in which the costs, expenses or
Taxes are incurred.


 


(c)           Any amount expressed to be payable in a
currency other than Euro shall be paid in that other currency.


 


105














 


28.10               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 Obligors’ Agent); 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 Obligors’
Agent) 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.


 


29.                             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.


 


30.                             NOTICES


 


30.1                      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.


 


30.2                      Addresses


 


Subject to the other terms of this
Agreement, in particular, without limitation, Clause 2.4 (Obligors’
Agent), 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,


 


106

















 


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.


 


30.3                      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 30.2 (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).


 


(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.


 


30.4                      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 30.2 (Addresses) or changing its own
address or fax number, the Agent shall notify the other Parties.


 


30.5                      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 19.2 (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:


 


107

















 


(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 30 (Notices).


 


(e)                              In
the case of notification of rates of interest by the Agent pursuant to Clause
8.4 (Notification of rates of interest) and
in the case of the delivery of any document by the Agent pursuant to paragraph (a) of
Clause 25.2 (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.


 


30.6                        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.


 


30.7                      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.  This provision shall not
operate after a replacement Agent has been appointed.


 


31.                             CALCULATIONS AND CERTIFICATES


 


31.1                      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.


 


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31.2                      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.


 


31.3                      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.


 


32.                             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.


 


33.                             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, 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.


 


34.                             AMENDMENTS AND WAIVERS


 


34.1                      Intercreditor
Agreement


 


This Clause 34 is subject to the
terms of the Intercreditor Agreement.


 


34.2                      Required
consents


 


(a)                              Subject
to Clause 34.3 (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.


 


(c)                               Each
Obligor agrees to any such amendment or waiver permitted by this Clause 34.2
which is agreed to by the Company or the Obligors’s Agent.  This includes any amendment or waiver which
would, but for this paragraph (c), require the consent of all Guarantors.


 


34.3                      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);


 


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(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 Borrower or the Guarantors (other than in accordance with Clause
24 (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 7.5 (Exit), Clause 23 (Changes to
the Lenders), Clause 27 (Sharing among the Lenders)
or this Clause 34,


 


(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.


 


(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 7 (Prepayment and Cancellation) save for Clause 7.5 (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 any release of any guarantee and indemnity granted under
Clause 17 (Guarantee and Indemnity) or of any
Transaction Security,


 


in each case other than as contemplated under Clause
24.5 (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
Obligors’ Agent 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 


 


110

















 


when ascertaining whether
any relevant percentage of Total Commitments and/or participations has been
obtained to approve that request.


 


34.4                      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 7.1
(Illegality) or to pay additional amounts
pursuant to Clause 13.1 (Increased Costs)
or Clause 12.2 (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 23 (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 11 (Fees), Break Costs and other amounts payable in relation
thereto under the Finance Documents.


 


(b)                              The
replacement of a Lender pursuant to this Clause 34 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 Obligors’ Agent 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;


 


111

















 


(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.


 


34.5                      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 34.5, 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.


 


34.6                      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 23 (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 23 (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


 


112

















 


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 34.6 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 23 (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.


 


35.                             COUNTERPARTS


 


Unless otherwise required by
applicable law, 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.


 


36.                             CONFIDENTIALITY


 


36.1                      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 36.2 (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.


 


36.2                      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


 


113

















 


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;


 


(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 25.14 (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 23.6 (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 Obligors’ Agent;


 


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


 


114

















 


(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 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 Obligors’ Agent
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 36.2,
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).


 


36.3                      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.


 


36.4                      Notification
of disclosure


 


Each of the Finance Parties agrees
(to the extent permitted by law and regulation) to inform the Obligors’ Agent:


 


(a)                              of
the circumstances of any disclosure of Confidential Information made pursuant
to sub paragraph (b)(v) of Clause 36.2 (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 36 (Confidentiality).


 


115














 


36.5        Continuing obligations


 


The obligations in this Clause 36 (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 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.


 


36.6        Entire agreement


 


This Clause 36 (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.


 


37.          GOVERNING LAW


 


This Agreement and any non-contractual
obligations arising out of or in connection with this Agreement shall be
governed by, and interpreted in accordance with, Austrian law.


 


38.          ENFORCEMENT


 


38.1        Jurisdiction of Austrian Courts


 


(a)                                 The competent courts for the first
district of Vienna, shall 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)                                 This Clause 38.1 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
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.


 


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


 


116

















 


SCHEDULE 1


 


THE ORIGINAL PARTIES


 


Part A

The Original Obligors


 


	
  Borrower

  	
   

  	
  Registration number (or equivalent, if any)

  
	
   

  	
   

  	
   

  
	
  Sappi
  Papier Holding GmbH

  	
   

  	
  FN167931h
  (Austria)

  
	
   

  	
   

  	
   

  
	
  Original Guarantors

  	
   

  	
  Registration number (or equivalent, if any)

  
	
   

  	
   

  	
   

  
	
  Sappi
  Limited

  	
   

  	
  1936/008963/06
  (South Africa)

  
	
   

  	
   

  	
   

  
	
  Sappi
  International SA

  	
   

  	
  RPM
  Brussels 0449.887.582 (Belgium)

  
	
   

  	
   

  	
   

  
	
  S.D.
  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)

  



 


117

















 


	
  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)

  



 


118

















 


Part B

The Original Lenders


 


	
  Original Lender

  	
   

  	
  Commitment

  	
   

  
	
   

  	
   

  	
  (Euro)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ABN AMRO Bank N.V., Belgian Branch

  	
   

  	
  25,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  BAWAG P.S.K. Bank für Arbeit und Wirtschaft und Österreichische
  Postsparkasse AG

  	
   

  	
  50,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Calyon Credit Agricole CIB

  	
   

  	
  40,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Erste Bank der oesterreichischen Sparkassen AG

  	
   

  	
  60,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Investkredit Bank AG

  	
   

  	
  40,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  KBC Bank Deutschland AG

  	
   

  	
  25,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Raiffeisenlandesbank Oberösterreich
  Aktiengesellschaft

  	
   

  	
  10,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Raiffeisen Zentralbank Österreich AG

  	
   

  	
  25,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Standard Chartered Bank

  	
   

  	
  25,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  UniCredit Bank Austria AG

  	
   

  	
  95,085,124.80

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Vorarlberger Landes- und Hypothekenbank Aktiengesellschaft

  	
   

  	
  5,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  400,085,124.80

  	
   

  



 


119

















 


SCHEDULE 2


 


CONDITIONS PRECEDENT


 


Part A

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 Guarantor, 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 Guarantor, 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 Guarantor) setting out the reasons
why the board of directors of the Belgian Guarantor consider that the entry
into the Finance Documents to which it is a party, and in particular the
assumption of its guarantee 


 


120

















 


obligations
in accordance with Clause 17 (Guarantee and Indemnity)
of this Agreement, is of benefit to the Belgian Guarantor;


 


(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 Guarantor
approving the provisions of the Finance Documents requiring an early repayment
in the case of a change of control over the Belgian Guarantor, 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 Guarantor
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 Guarantor 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 Guarantor 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 Guarantor 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.


 


121

















 


(j)                                     A certificate of an authorised
signatory of, each Original Obligor certifying that each copy document relating
to it specified in this Part A of 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.


 


(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)                                 the Amending 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 the Borrower of the
pledge over its shares;


 


(B)                                acknowledgement of the notification
in (A) above from the Borrower to the Security Agent;


 


(C)                               notification of Sappi Gratkorn GmbH of the pledge over
its shares;


 


122

















 


(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;


 


(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; and


 


(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 the Borrower;


 


(B)                                acknowledgement of the notification
of debtors (Drittschuldnerverständigungen) with
respect to the pledge of receivables by the Borrwer;


 


(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;


 


123

















 


(F)                                 notification of debtor with respect
to the English law assignment of intercompany loans granted by the Borrower;


 


(G)                               notification of debtor with respect to the English law
assignment of intercompany loans granted by Sappi Pulp Asia Limited;


 


(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 under the RCF Facility 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;


 


124

















 


(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;


 


(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
S.D. 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;


 


(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; and


 


(q)                                 legal opinion (enforceability) of
Barnert Egermann Illigasch 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.


 


125






 










 


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)           The Group Structure Chart which shows
the Group as at the Signing Date.


 


(b)           A copy, certified by an authorised
signatory of the Company to be a true copy, of the Original Financial
Statements of each Original Obligor.


 


(c)           A copy, certified by an authorised
signatory of the Company to be a true copy of the Base Case Model.


 


(d)           Evidence that the fees, costs and
expenses then due from the Company pursuant to Clause 11 (Fees)
and Clause 16 (Costs and Expenses) have been or
will be paid on the Signing Date.


 


(e)           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 RCF Facility in
an aggregate amount of not less than Euro 209,000,000 and having a termination
date of no earlier than 31 May 2012.


 


(f)            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 20 (Financial Covenants))
of such Excluded Subsidiary as a percentage of the consolidated EBITDA (as
defined in Clause 20 (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.


 


(g)           “Know your customer” documentations
and checks in respect of the Company (including, if necessary, the directors
and shareholders thereof) and the Obligors.


 


(h)           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 RCF 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 RCF Facility and other long term financing or
receivables financing in each case raised after 31 March 2009 in
aggregate will raise no less than


 


126

















 


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.


 


(i)            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).


 


(j)            Evidence that the Existing RCF
Facility has been, or will be, cancelled and has been or will be prepaid on the
Signing Date.


 


(k)           Evidence that the Vendor Loan Notes
have been, or will be, repaid on the Signing Date.


 


(l)            Evidence that all Required Amendments
have been effected and copies of each executed amendment affecting the Required
Amendments as referred to in Schedule 12 (Required
Amendments) have been delivered to the Agent.


 


(m)          Evidence that all Required Accessions
have been effected and copies of each executed accession letter and/or
certificate as referred to in Schedule 13 (Required Accessions and
Consents) have been delivered to the Agent.


 


(n)           Evidence that all Required Consents
have been granted and copies of each executed consent as referenced to in
Schedule 13 (Required Accessions and Consents)
have been delivered to the Agent.


 


(o)           Evidence that all Required Transfers
have been entered into and that their effectiveness is only subject to the
execution of the Amending Agreement and the fulfilment of the Conditions
Precedent as defined therein.


 


(p)           Confirmation by each Original Lender
that the full amount of its Commitment in the Facility will be refinanced by
OeKB and that it has received the refinancing undertaking (Refinanzierungszusage)
by OeKB and the undertaking in respect of the aval (Wechselbürgschaft)
provided by the Republic of Austria in connection with any Promissory Note.


 


127

















 


Part B


Conditions
Precedent Required to be

Delivered by an Additional Guarantor


 


1.            An Accession Letter, duly executed by
the Additional Guarantor and the [Company]/[Obligors’ Agent].


 


2.             A copy of the constitutional
documents of the Additional Guarantor, including, in the case of:


 


(a)           an Austrian Guarantor, a copy of the
articles of association (Gesellschaftsvertrag)
and a copy of an extract from the commercial register (Firmenbuch);


 


(b)           a Belgian Guarantor, 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 Guarantor, 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
(if any);


 


(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 Guarantor (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 Guarantor established in any other jurisdiction, the relevant local
law equivalent.


 


3.             A copy of a resolution of the board
of directors of each Additional Guarantor (other than an Additional Guarantor
incorporated in Germany) and/or equivalent body under the respective applicable
law of each Additional Guarantor (which for an
Additional Guarantor 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 Guarantor) setting out the reasons
why the board of directors of the Belgian Guarantor 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 17 (Guarantee and indemnity) of this Agreement, is of benefit to
the Belgian Guarantor;


 


128

















 


(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 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
SISA, 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 Guarantor,
approving the terms of, and the transactions contemplated by, the Finance
Documents to which the Additional Guarantor is a party or, in the case of a Belgian
Guarantor, a written resolution of all shareholders of the Belgian Guarantor
approving the provisions of the Finance Documents requiring an early repayment
in the case of a change of control over the Belgian Guarantor, 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 Guarantor
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 Guarantor 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 Guarantor 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 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 Guarantor 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 Guarantor
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
Guarantor (signed by a director or other authorised signatory of such
Additional Guarantor) 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.


 


129

















 


11.          A certificate of an authorised
signatory of the Additional Guarantor certifying that each copy document listed
in this Part B 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
Guarantor will become a Party.


 


13.          If available, the latest audited
financial statements of the Additional Guarantor.


 


14.          If the proposed Additional Guarantor
is incorporated in The Republic of South Africa, any required approval of the
Exchange Control Department of the South African Reserve Bank.


 


15.          Any share security agreement (an Additional Share Security Agreement)
to be executed by the immediate Holding Company of the Additional Guarantor in
respect of the shares in such Additional Guarantor 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.


 


16.          Any notices or documents required to
be given or executed under the terms of any Additional Share Security
Agreement.


 


17.          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 Austria, as to Austrian law in the form distributed to the
Lenders prior to signing the Accession Letter; and


 


(b)           if the Additional Guarantor is
incorporated in a jurisdiction other than Austria or is executing a Finance
Document which is governed by a law other than Austrian 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.


 


130

















 


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:


 


	
  AB
  + C(B – D)  + Ex0.01

  	
    per
  cent. per annum

  
	
  100 – (A + C)

  



 


(b)           in relation to a Loan in any currency
other than Sterling:


 


	
  Ex0.01

  	
    per
  cent. per annum.

  
	
  300

  



 


Where:


 


A              is
the percentage of Eligible Liabilities (assuming these to be in excess of any
stated minimum) which that Lender is from time to time required to maintain as
an interest free cash ratio deposit with the Bank of England to comply with
cash ratio requirements.


 


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 8.3 (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.


 


131

















 


D             is
the percentage rate per annum payable by the Bank of England to the Agent on
interest bearing Special Deposits.


 


E             is
designed to compensate Lenders for amounts payable under the Fees Rules and
is calculated by the Agent as being the average of the most recent rates of
charge supplied by the Reference Banks to the Agent pursuant to paragraph 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 


 


132

















 


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 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 Obligors’ Agent 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.


 


133














 


SCHEDULE 9


 


EXISTING SECURITY, GUARANTEES AND INTERCOMPANY LOANS


 


PART A


 


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

  	
   

  
	
  S.D. 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 & 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

  	
   

  	
  GBP
  30,000,000

  	
   

  



 


134

















 


	
  Name of Group Company

  Granting Security /Guarantee

  	
   

  	
  Description of

  Security/Guarantee

  	
   

  	
  Principal Amount of

  Indebtedness Secured /

  Guaranteed

  	
   

  
	
   

  	
   

  	
  Ltd Pension funds

  	
   

  	
   

  	
   

  
	
  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 S.D. Warren Company

  	
   

  	
  USD
  23,000,000

  	
   

  
	
  Sappi Papier Holding GmbH

  	
   

  	
  Guarantee in favour of Societe Generale
  on behalf of S.D. Warren Company

  	
   

  	
  USD
  10,000,000

  	
   

  
	
  Sappi Papier Holding GmbH

  	
   

  	
  Guarantee in favour of Citibank on
  behalf of S.D. Warren Company

  	
   

  	
  USD
  20,790,000

  	
   

  



 


135

















 


	
  Name of Group Company

  Granting Security /Guarantee

  	
   

  	
  Description of

  Security/Guarantee

  	
   

  	
  Principal Amount of

  Indebtedness Secured /

  Guaranteed

  	
   

  
	
  Sappi Papier Holding GmbH

  	
   

  	
  Guarantee in favour of Bank Austria on
  behalf of S.D. 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 S.D. Warren Company

  	
   

  	
  EUR
  74,400

  	
   

  



 


136














 


PART B


 


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-

  	
   

  	
  Sappi
  Austria Vertriebs-GmbH & Co. KG

  	
   

  	
  Eur1,610

  	
   

  
	
  GmbH &
  Co. KG

  	
   

  	
  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

  	
   

  
	
   

  	
   

  	
  Sappi Finland I Oy

  	
   

  	
  Eur480,748

  	
   

  
	
   

  	
   

  	
  Sappi Stockstadt GmbH

  	
   

  	
  Eur35,639

  	
   

  
	
   

  	
   

  	
  Sappi Deutschland
  Holding GmbH

  	
   

  	
  Eur57,680

  	
   

  
	
   

  	
   

  	
  Sappi Schweiz AG

  	
   

  	
  Eur42,689

  	
   

  



 


137

















 


	
  Lender

  	
   

  	
  Borrower

  	
   

  	
  Total Principal Amount of

  Indebtedness (in

  thousands)

  	
   

  
	
   

  	
   

  	
  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

  	
   

  
	
   

  	
   

  	
  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

  	
   

  
	
  S.D. 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

  	
   

  



 


138

















 


	
  Lender

  	
   

  	
  Borrower

  	
   

  	
  Total Principal Amount of

  Indebtedness (in

  thousands)

  	
   

  
	
   

  	
   

  	
  Sappi Netherlands
  Services BV

  	
   

  	
  Eur11,753

  	
   

  
	
   

  	
   

  	
  Sappi China Holdings BV

  	
   

  	
  Eur8,902

  	
   

  
	
   

  	
   

  	
  Sappi International SA

  	
   

  	
  Eur38,000

  	
   

  
	
   

  	
   

  	
  Sappi Europe SA

  	
   

  	
  Eur3,967

  	
   

  
	
   

  	
   

  	
  S.D. Warren Company

  	
   

  	
  Eur82,132

  	
   

  
	
  Sappi Deutschland Holding 

  	
   

  	
  Sappi Logistics Wesel
  GmbH

  	
   

  	
  Eur950

  	
   

  
	
  GmbH

  	
   

  	
  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

  	
   

  
	
  Sappi Austria Vertriebs- 

  	
   

  	
  Sappi Papier Holding
  GmbH

  	
   

  	
  Eur1,369

  	
   

  
	
  GmbH and Co. KG

  	
   

  	
  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

  	
   

  



 


139

















 


	
  Lender

  	
   

  	
  Borrower

  	
   

  	
  Total Principal Amount of

  Indebtedness (in

  thousands)

  	
   

  
	
  Sappi
  Europe Polska SP 

  	
   

  	
  Sappi Deutschland GmbH

  	
   

  	
  PLN281

  	
   

  
	
  ZOO

  	
   

  	
  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

  	
   

  
	
  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 Manufacturing (Pty) Ltd

  	
   

  	
  Sappi Limited

  Guardrisk Cell No. 61

  Usutu Pulp Company Limited

  	
   

  	
  ZAR3,317,277

  ZAR354,713

  ZAR758,678

  	
   

  
	
  Sappi Management Services (Pty)
  Ltd

  	
   

  	
  Sappi Manufacturing (Pty) Ltd

  	
   

  	
  ZAR2,342,411

  	
   

  



 


140














 


SCHEDULE 10


 


Existing External Indebtedness


 


	
  Name of Company

  	
   

  	
  Facility Document

  	
   

  	
  Total Principal Amount

  of Indebtedness

  	
   

  
	
  Sappi Papier Holding GmbH

  	
   

  	
  USD 500,000,000 6.75%
  Guaranteed Notes due 2012. Unsecured

  	
   

  	
  USD
  500,000,000

  	
   

  
	
  Sappi Papier Holding GmbH

  	
   

  	
  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

  USD 14,953,000

  	
   

  
	
  Sappi Papier Holding GmbH, Sappi

  	
   

  	
  Guaranteed unsecured
  vendor

  	
   

  	
  EUR
  220,000,000



  	
   

  



 


141

















 


	
  Name of Company

  	
   

  	
  Facility Document

  	
   

  	
  Total Principal Amount

  of Indebtedness

  	
   

  
	
  Limited, Sappi International SA and Sappi Trading Pulp AG

  	
   

  	
  loan notes

  	
   

  	
  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

  	
   

  
	
  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

  	
   

  



 


142

















 


	
  Name of Company

  	
   

  	
  Facility Document

  	
   

  	
  Total Principal Amount

  of Indebtedness

  	
   

  
	
  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.

  	
   

  
	
  Sappi
  International SA and Sappi Papier Holding GmbH

  	
   

  	
  Uncommitted Facilities

  	
   

  	
  USD1,000,000

  	
   

  



 


143














 


SCHEDULE 15


 


TRANSACTION
SECURITY DOCUMENTS


 


Part A


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 B

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


 


144














 


Part C

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 D

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 E

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 F

South African Security Documents


 


First ranking share pledge over the
shares in Sappi Manufacturing (Pty) Ltd.


 


Part G

US Security Documents


 


1.             Pledge and security agreement in
relation to


 


145

















 


(a)           the shares in S.D. Warren Company,
Sappi Cloquet LLC, and Cloquet Terminal Railroad Company Inc.; and


 


(b)           the inventory of S.D. Warren Company
and Sappi Cloquet LLC (excluding inventory held on consignment)


 


2.             Note pledge agreement in relation
to the notes issued by S.D. Warren Company held by Sappi Holding GmbH and Sappi
Netherlands BV


 


3.             Mortgage (in respect of property
located in Maine) owned by S.D. Warren Company


 


4.             Mortgage (in respect of property
located in Minnesota) owned by Sappi Cloquet LLC


 


Part H

Swiss Security Documents


 


First ranking share pledge agreement
over the shares of Sappi Pulp Trading AG and Sappi Schweiz AG


 


Part I

English Security Document


 


Assignment of intercompany
receivables (governed by English law) by Sappi Papier Holding GmbH, Sappi Pulp
Asia Limited and Sappi Finland I Oy


 


146

















 


	
  SIGNATURES

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  The Company

  	
   

  
	
   

  	
   

  
	
  SAPPI LIMITED

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  The Borrower

  	
   

  
	
   

  	
   

  
	
  SAPPI PAPIER
  HOLDING GMBH

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  The Original
  Guarantors

  	
   

  
	
   

  	
   

  
	
  SAPPI LIMITED

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI
  INTERNATIONAL SA

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  Chaussee
  de la Hulpe 154, B-1170 Watermael-Boitsfort, Belgium

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
  Jörg Passler

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
  +32 (0) 2676 984

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  S.D. WARREN
  COMPANY

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SDW HOLDINGS
  CORPORATION

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI CLOQUET
  LLC

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  



 


147

















	
   

  	
   

  
	
  SAPPI LANAKEN
  NV

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI
  DEUTSCHLAND GMBH

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI
  DEUTSCHLAND HOLDING GMBH

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI LANAKEN
  PRESS PAPER NV

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI PULP
  ASIA LIMITED

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI
  NIJMEGEN BV

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI ALFELD
  GMBH

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI
  MAASTRICHT BV

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI
  NETHERLANDS BV

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



148

















 


	
  SAPPI EHINGEN
  GMBH

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI EUROPE
  SA

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI
  GRATKORN GMBH

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI
  MAGNOSTAR GMBH

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI AUSTRIA
  PRODUKTIONS–GMBH & CO. KG

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI
  STOCKSTADT GMBH

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SAPPI FINLAND
  I OY

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  The Mandated Lead Arrangers

  	
   

  
	
   

  	
   

  
	
  BAWAG P.S.K. BANK FÜR ARBEIT UND WIRTSCHAFT UND ÖSTERREICHISCHE
  POSTSPARKASSE AG

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  CALYON

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  



 


 


149

















 


	
  ERSTE BANK DER OESTERREICHISCHEN SPARKASSEN AG

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  KBC
  BANK NV

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  INVESTKREDIT
  BANK AG

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  THE ROYAL
  BANK OF SCOTLAND PLC

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  UNICREDIT
  BANK AUSTRIA AG

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  The
  Original Lenders

  	
   

  
	
   

  	
   

  
	
  ABN
  AMRO BANK N.V., BELGIAN BRANCH

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  BAWAG P.S.K. BANK FÜR ARBEIT UND WIRTSCHAFT UND ÖSTERREICHISCHE
  POSTSPARKASSE AG

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  CALYON
  CREDIT AGRICOLE CIB

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  



 


150

















 


	
  ERSTE BANK DER OESTERREICHISCHEN SPARKASSEN AG

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  INVESTKREDIT
  BANK AG

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  KBC BANK DEUTSCHLAND AG

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  RAIFFEISENLANDESBANK OBERÖSTERREICH AKTIENGESELLSCHAFT

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  RAIFFEISEN ZENTRALBANK ÖSTERREICH AG

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  STANDARD
  CHARTERED BANK

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  UNICREDIT
  BANK AUSTRIA AG

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  VORARLBERGER LANDES- UND HYPOTHEKENBANK AKTIENGESELLSCHAFT

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  



 


151

















 


	
  The Agent

  	
   

  
	
   

  	
   

  
	
  UNICREDIT
  BANK AUSTRIA AG

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  Schottengasse 6 – 8,
  A-1010 Vienna, Austria

  
	
   

  	
   

  
	
  Attention:

  	
  Christoph Siegl

  
	
   

  	
   

  
	
  Fax:

  	
  +43 50505 42766

  
	
   

  	
   

  
	
  The Security
  Agent

  
	
   

  	
   

  
	
  J.P. MORGAN
  EUROPE LIMITED

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
  Address:

  	
   

  
	
   

  	
   

  
	
  Attention:

  	
   

  
	
   

  	
   

  
	
  Fax:

  	
   

  



 


152














 


EXECUTION
VERSION


 


BRINGING THIS DOCUMENT OR ANY
CERTIFIED COPY OF THIS DOCUMENT INTO THE REPUBLIC OF AUSTRIA MAY CAUSE THE
IMPOSITION OF AUSTRIAN STAMP DUTY TAX ON AGREEMENTS REFERENCED HEREIN.


 


 


7 May 2003


 


 


SAPPI LIMITED

as Company


 


 


and


 


SAPPI PAPIER HOLDING GMBH

as Borrower


 


 


arranged by

BAWAG P.S.K. BANK FÜR ARBEIT UND WIRTSCHAFT UND ÖSTERREICHISCHE POSTSPARKASSE
AG,

CALYON

ERSTE BANK DER OESTERREICHISCHEN SPARKASSEN AG

KBC BANK NV

INVESTKREDIT BANK AG

THE ROYAL BANK OF SCOTLAND PLC

UNICREDIT BANK AUSTRIA AG

as Mandated Lead Arrangers


 


 


with



UNICREDIT BANK AUSTRIA AG

Acting as Agent


 


 


J.P. MORGAN EUROPE LIMITED

Acting as Security Agent


 


	
   

  	
   

  	
   

  
	
   

  	
  EUR 400,085,124.80 TERM LOAN FACILITY AGREEMENT

  	
   

  
	
   

  	
   

  	
   

  



 


THIS AGREEMENT IS
EXEMPT FROM AUSTRIAN STAMP DUTY PURSUANT TO SECTION 33 TP 19(4) LIT 4
OF THE AUSTRIAN STAMP DUTY ACT (GEBÜHRENGESETZ).