Exhibit 10.6
[XXXXXXXX CHANCE PUNDER LOGO]
Conformed Copy
Dated [7 May] 2002
POOL ACQUISITION NETHERLANDS B.V.
as Outgoing Subordinated Lender
SANITEC INTERNATIONAL S.A.
as Incoming Subordinated Lender
SANITEC OY
as Company
BAYERISCHE HYPO- UND VEREINSBANK AG, LONDON BRANCH
as Liquidity Lender and as agent for the Beneficiaries
AND
THE BANK OF NEW YORK
as Trustee
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AMENDMENT AGREEMENT
RELATING TO A SENIOR NOTES LOAN SUBORDINATION AGREEMENT DATED 14 DECEMBER
2001
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THIS AGREEMENT is dated [7 May] 2002 and made between:
(1) POOL ACQUISITION NETHERLANDS B.V. (the "OUTGOING SUBORDINATED LENDER");
(2) SANITEC INTERNATIONAL S.A. (the "INCOMING SUBORDINATED LENDER");
(3) SANITEC OY (formerly Pool Acquisition Helsinki Oy) (the "COMPANY");
(4) BAYERISCHE HYPO- UND VEREINSBANK AG, LONDON BRANCH as Liquidity Lender
and as agent for the Beneficiaries (the "LIQUIDITY LENDER" and the
"AGENT"); and
(5) THE BANK OF NEW YORK as trustee for holders of the Senior Notes (the
"TRUSTEE").
RECITALS
(A) Pursuant to a EUR 615,000,000 senior multicurrency term loan and
revolving credit facilities agreement dated 26 April 2001 between,
INTER ALIOS, Pool Acquisition Helsinki Oy as parent and original
borrower, Pool Acquisition Helsinki Oy and Pool Financing Helsinki Oy
as original guarantors, Bayerische Hypo- und Vereinsbank AG as arranger
and underwriter, Bayerische Hypo- und Vereinsbank AG, London Branch as
agent and as security agent and the Banks (as defined therein) (as
amended, novated, supplemented, superseded or extended from time to
time, the "SENIOR FACILITIES AGREEMENT"), the Banks agreed to grant
certain facilities to the original borrower and certain entities which
accede thereto as additional borrowers.
(B) Pursuant to an EUR 245,000,000 junior facility agreement dated 26 April
2001 between, INTER ALIOS, Fin Newco II as junior borrower, Fin Newco I
as junior guarantor, Bayerische Hypo- und Vereinsbank AG as junior
arranger and junior underwriter and Bayerische Hypo- und Vereinsbank
AG, London Branch as junior agent and security agent and the Junior
Lenders (as defined therein) (as amended, novated, supplemented,
superseded or extended from time to time, the "JUNIOR FACILITY
AGREEMENT"), the Junior Lenders have agreed to grant a term loan
facility to the junior borrower.
(C) It was intended that the Outgoing Subordinated Lender would issue
high-yield debt securities (the "SENIOR NOTES") to be constituted
pursuant to an indenture.
(D) The Outgoing Subordinated Lender entered into a subordinated loan
agreement with the Company on or about 14 December 2001 (as amended,
novated, supplemented, superseded or extended from time to time, the
"SENIOR NOTES LOAN AGREEMENT") pursuant to which the Outgoing
Subordinated Lender as lender agreed to lend certain amounts to the
Company as borrower.
(E) Pursuant to the terms of a senior notes loan subordinated agreement
dated on or about 14 December 2001 (as amended, novated, supplemented,
superseded or extended from time to time, the "SENIOR NOTES LOAN
SUBORDINATION AGREEMENT"), the payment claims of the Outgoing
Subordinated Lender against the Company in relation to the
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Senior Notes Loan Agreement were regulated and/or subordinated in the
manner set out therein.
(F) Pursuant to a merger plan dated 7 November 2001 and a subsidiary merger
as referred to in Chapter 14, Section 1, Subsection 3 of the Finnish
Companies Act (statute 1978/734 as amended) which became effective on
registration of the merger in the Finnish Trade Register, the Target
Company merged into Fin Newco I which merged entity was subsequently
renamed Sanitec Oy.
(G) Sanitec Oy has notified the Facility Agent that (i) a new German
holding company ("GERMAN NEWCO") in the form of a stock corporation
(AKTIENGESELLSCHAFT) and a new Luxembourg holding company ("LUX NEWCO
II") in the form of a stock corporation (SOCIETE ANONYME) have been
incorporated. Lux Newco II holds the shares in Dutch Newco. German
Newco will following the issue of the Senior Notes be interposed
between Lux Newco and Lux Newco II, (ii) Dutch Newco will be dissolved
and thus replaced by Lux Newco II (and Lux Newco II rather than Dutch
Newco shall then issue the Senior Notes) and (iii) Sanitec Oy wishes to
upstream additional monies to Lux Newco, Lux Newco II and German Newco.
(H) The parties to the Senior Notes Loan Subordination Agreement (with
Bayerische Hypo- und Vereinsbank AG, London Branch acting as agent of
the Beneficiaries) have now agreed to amend the Senior Notes Loan
Subordination Agreement on the terms and subject to the conditions
hereof.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"EFFECTIVE DATE" means the date on which the Agent confirms to the
Beneficiaries and the Company that it has received each of the
documents listed in Schedule 1 (CONDITIONS PRECEDENT), each in a form
and substance satisfactory to the Agent.
"RESTATED AGREEMENT" means the Senior Notes Loan Subordination
Agreement, as amended by this Agreement, the terms of which are set out
in Annex I (RESTATED AGREEMENT).
1.2 INCORPORATION OF DEFINED TERMS
(a) Terms defined in the Senior Notes Loan Subordination Agreement
(whether expressly or by reference to any other document or
agreement) shall, unless otherwise defined herein, have the
same meaning herein.
(b) The principles of construction set out in the Senior Notes
Loan Subordination Agreement (whether expressly or by
reference to any other document or agreement) shall have
effect as if set out in this Agreement.
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1.3 CLAUSES
(c) In this Agreement any reference to a "Clause", "Annex" or
"Schedule" is, unless the context otherwise requires, a
reference to a Clause, Annex or Schedule of this Agreement.
(d) Clause, Annex and Schedule headings are for ease of reference
only.
2. RESTATEMENT
RESTATEMENT OF THE SENIOR NOTES LOAN SUBORDINATION AGREEMENT
With effect from the Effective Date the Senior Notes Loan Subordination
Agreement shall be amended and restated so that it shall be read and
construed for all purposes as set out in Annex I (RESTATED Agreement.)
3. ACCESSION
Sanitec International S.A. hereby agrees with each other person who is
or who becomes a party to the Amended Agreement that with effect on and
from the date herof it wil be bound by the Amended Agreement as if it
had been an original party to the Amended Agreement.
Address for notice of Sanitec International S.A. for the purpose of
Clause 10 (NOTICES) of the Amended Agreement is:
00-00 Xxxxxxxxx xx Xxxxxx Xxxxx, X-0000 Xxxxxxxxxx
Trustee hereby agrees with each other person who is or who becomes a
party to the Amended Agreement that with effect on and from the date
hereof it will be bound by the Amended Agreement as trustee for the
holders of the Senior Notes as if it had been an original party to the
Amended Agreement in that capacity.
Address for notice of Trustee for the purpose of Clause 10 (NOTICES) of
the Amended Agreement is:
ATO: Xxxx Xxxxxxx
The Bank of New York
One Canada Square
London E14 5 AL
4. REPRESENTATIONS AND COVENANT
Each of the Company and the Incoming Subordinated Lender makes the
Repeated Representations as if each reference in those representations
to "this Agreement" or "the Finance Documents" includes a reference to
(a) this Agreement and (b) the Restated Agreement.
The Company covenants to supply to the Agent a certificate of an
Authorised Signatory of each Obligor (as defined in Schedule 1 hereto)
setting out the names and signatures of the persons authorised to sign,
on behalf of such Obligor, this Agreement and any documents to be
delivered by such Obligor pursuant hereto (a certificate presented in
connection with the signing of the Finance Documents on 26 April 2001
and/or 6 June 2001 may be presented, if the persons authorised to sign
on behalf of such Obligor are
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the same as the ones who signed the Finance Documents on 26 April 2001
and/or 6 June 2001) within three weeks from the Effective Date.
5. CONTINUITY AND FURTHER ASSURANCE
5.1 CONTINUING OBLIGATIONS AND FINANCE DOCUMENT
The provisions of the Finance Documents shall, save as amended in this
Agreement, continue in full force and effect. This Agreement shall
constitute a Finance Document.
5.2 FURTHER ASSURANCE
The Company shall, at the request of the Agent and at its own expense,
do all such acts and things necessary or desirable to give effect to
the amendments effected or to be effected pursuant to this Agreement.
6. FEES, COSTS AND EXPENSES
6.1 TRANSACTION EXPENSES
The Company shall promptly on demand pay the Agent and each of the
Beneficiaries the amount of all costs and expenses (including legal
fees) reasonably incurred by any of them in connection with the
negotiation, preparation, printing and execution of this Agreement and
any other document referred to in this Agreement.
6.2 ENFORCEMENT COSTS
The Company shall, within three Business Days of demand, pay to each
Beneficiary the amount of all costs and expenses (including legal fees)
incurred by that Beneficiary in connection with the enforcement of, or
the preservation of any rights under this Agreement and any other
document referred to in this Agreement.
6.3 STAMP TAXES
The Company shall pay and, within three Business Days of demand,
indemnify each Beneficiary against any cost, loss or liability that
Beneficiary incurs in relation to all stamp duty, registration and
other similar taxes payable in respect of this Agreement and any other
document referred to in this Agreement.
7. MISCELLANEOUS
7.1 INCORPORATION OF TERMS
The provisions of Clause 12 (PARTIAL INVALIDITY; WAIVER), Clause 13
(LAW) and Clause 14 (JURISDICTION) of the Senior Notes Loan
Subordination Agreement shall be incorporated into this Agreement as if
set out in full herein and as if references therein to "this Agreement"
or "the Finance Documents" are references to this Agreement.
7.2 COUNTERPARTS
This Agreement 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 this Agreement.
THIS AGREEMENT has been entered into on the date stated at the beginning of this
Agreement.
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SCHEDULE 1
CONDITIONS PRECEDENT
1. In relation to the Outgoing Subordinated Lender, the Incoming
Subordinated Lender and the Company (together, the "OBLIGORS" and each
an "OBLIGOR"):
(a) a copy of the constitutional documents of such Obligor,
certified as true, complete and up-to-date as at the date
hereof the
(b) a copy, certified as at the date of this Agreement a true and
up-to-date copy by an Authorised Signatory of such Obligor, of
a board/shareholders/managing directors resolution or any
other resolution required by law of such Obligor approving the
execution, delivery and performance of this Agreement and the
terms and conditions hereof and authorising a named person or
persons to sign this Agreement and any documents to be
delivered by such Obligor pursuant hereto (a resolution
presented in connection with the signing of the Finance
Documents on 26 April 2001 and/or 6 June 2001 may be
presented, if such resolution also covers the execution of
this Agreement); and
2. Execution and delivery of amendment agreements amending the terms of
the Senior Facility Agreement, the Junior Facility Agreement and the
Subordination Agreement.
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ANNEX I
AMENDED AGREEMENT
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SIGNATURES
THE OUTGOING SUBORDINATED LENDER
POOL ACQUISITION NETHERLANDS B.V.
By: [Dr. Jens Moraht by power of attorney]
THE INCOMING SUBORDINATED LENDER
SANITEC INTERNATIONAL S.A.
By: [DR. JENS MORAHT BY POWER OF ATTORNEY]
THE COMPANY
SANITEC OY (FORMERLY POOL ACQUISITION HELSINKI OY)
By: [Dr. Jens Moraht by power of attorney]
THE LIQUIDITY LENDER AND THE AGENT
BAYERISCHE HYPO- UND VEREINSBANK AG, LONDON BRANCH
as Liquidity Lender and as agent for the Beneficiaries
BY: [Xxxxxxxxxxx Xxxx by power of attorney]
[Xxxxx Xxxxxxxxx by power of attorney]
THE TRUSTEE
THE BANK OF NEW YORK
as Trustee for the holders of the Senior Notes
By: [Xxxx Xxxxxxx, AVP]
[XXXXXXXX CHANCE PUNDER LOGO]
ANNEX I
SANITEC INTERNATIONAL S.A.
AS SUBORDINATED LENDER
POOL ACQUISITION HELSINKI OY
AS COMPANY
THE BENEFICIARIES
NAMED HEREIN
THE BANK OF NEW YORK
AS TRUSTEE FOR THE HOLDERS OF THE SENIOR NOTES
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SENIOR NOTES LOAN SUBORDINATION AGREEMENT
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CONTENTS
CLAUSE PAGE
1. Interpretation................................................................................2
2. Subordination (RANGRUCKTRITT) of Subordinated Liabilities.....................................6
3. Covenants of the Subordinated Creditors.......................................................7
4. Permitted Payments............................................................................8
5. Enforcement...................................................................................8
6. Waiver........................................................................................9
7. Second Share Pledge and Acknowledgment of Subordination.....................................10
8. Other Security and Dealings..................................................................11
9. Syndication..................................................................................11
10. Notices, Amendments, Waiver..................................................................12
11. Counterparts.................................................................................12
12. Partial Invalidity; Waiver...................................................................12
13. Law..........................................................................................13
14. Jurisdiction.................................................................................13
SCHEDULE 1 FORM OF SENIOR NOTES LOAN AGREEMENT........................................................14
THIS SUBORDINATION AGREEMENT is made the 14 day of December 2001
BETWEEN:
(1) SANITEC INTERNATIONAL S.A. (the "SUBORDINATED LENDER");
(2) SANITEC OY ( formerly known as Pool Acquisition Helsinki Oy), a limited
liability company duly organised under the laws of Finland with its
registered corporate seat in Helsinki, registered under the Y-code
(Business code) 1700086-7 at the Trade Register in Helsinki (the
"COMPANY");
(3) THE BENEFICIARIES whose names are set out on the execution pages of
this agreement as beneficiaries (each a "BENEFICIARY" and together with
the entities who accede hereto as beneficiaries, the "BENEFICIARIES");
and
(4) The Bank of new york as trustee for the holders of the Senior Notes
(the "TRUSTEE").
WHEREAS:
(A) Pursuant to the terms of a senior facility agreement dated 26 April
2001 (as amended, restated, novated and/or extended from time to time)
made between the Senior Agent, the Senior Arranger, the Security Agent,
the Senior Banks, Fin Newco I, Fin Newco II and others (the "SENIOR
FACILITY AGREEMENT") the Senior Banks have made available to Fin Newco
I and certain of its subsidiaries senior secured debt facilities (the
"SENIOR FACILITIES") in a total amount of up to EUR 615,000,000.
(B) Pursuant to the terms of a Junior Facility Agreement dated 26 April
2001 (as amended, restated, novated and/or extended from time to time)
made between the Junior Agent, the Junior Arranger, the Security Agent,
the Junior Lenders, Fin Newco II and others (the "JUNIOR FACILITY
AGREEMENT") the Junior Lenders have made available to Fin Newco II a
second priority secured Junior debt facility (the "JUNIOR FACILITY") in
an amount of up to EUR 245,000,000.
(C) The proceeds of the Junior Facility were on-lent from Fin Newco II to
Fin Newco I pursuant to the terms of a junior on-loan agreement dated
26 April 2001 (as amended, restated, novated and/or extended from time
to time) hereof (the "JUNIOR ON-LOAN AGREEMENT") by way of a junior
on-loan (the "JUNIOR ON-LOAN").
(D) Pursuant to the terms of a liquidity facility agreement dated 6 June
2001 (as amended, restated, novated and/or extended from time to time)
after the date hereof made between the Liquidity Lender and Fin Newco I
(the "LIQUIDITY FACILITY AGREEMENT") the Liquidity Lender has made
available a third priority
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secured liquidity facility (the "LIQUIDITY FACILITY") in an amount up
to EUR 40,000,000. The amounts outstanding under the Liquidity Facility
Agreement have been repaid and the Liquidity Facility has been
cancelled.
(E) Pursuant to an intercreditor agreement dated 26 April 2001 (as amended,
restated, novated and/or extended from time to time) (the
"INTERCREDITOR AGREEMENT") the claims of the Senior Agent, the Senior
Arranger, the Security Agent and the Senior Banks against the Obligors
under the Senior Facilities Agreement and certain security documents,
the claims of the Junior Agent, the Junior Arranger, the Security Agent
and the Junior Lenders against the Obligors under the Junior Facility
Agreement and certain security documents and the claims of the Security
Agent and the Liquidity Lender against the Obligors under the Liquidity
Facility Agreement and certain security documents are regulated and/or
subordinated as set out therein.
(F) It is intended that the Subordinated Lender will issue high-yield debt
securities ("SENIOR NOTES") to be constituted pursuant to an indenture
(the "INDENTURE").
(G) The Subordinated Lender will enter into a subordinated loan agreement
with the Company (as amended, novated, supplemented, superseded or
extended from time to time the "SENIOR NOTES LOAN AGREEMENT") in the
form attached hereto as Schedule 1 (FORM OF SENIOR NOTES LOAN
AGREEMENT).
(H) Pursuant to a subordination agreement dated 26 April 2001 (as amended,
restated, novated and/or extended from time to time) between, INTER
ALIA, the initial investors named therein, Pool Acquisition Helsinki Oy
as parent, original borrower, liquidity borrower and original
guarantor, Bayerische Hypo- und Vereinsbank AG, London Branch as senior
agent, junior agent and security agent (the "SUBORDINATION AGREEMENT")
the payment claims of the Initial Investors and following its accession
Pool Acquisition Netherlands B.V. and the Subordinated Lender against
the Company are regulated and/or subordinated as set out therein, save
for the payment claims of the Subordinated Lender against the Company
under the Senior Notes Loan Agreement which are regulated under this
Agreement.
(I) It has been agreed between the parties hereto that the payment claims
of the Subordinated Lender against the Company in relation to the
Senior Notes Loan Agreement shall be regulated and/or subordinated in
the manner set out herein.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 In this Agreement:
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"ANCILLARY LIABILITIES" in relation to any of the Subordinated
Liabilities and the Liabilities means:
(a) any refinancing, novation (not being a transfer permitted by
any Finance Document), refunding, deferral or permitted
extension of any of the Subordinated Liabilities or the
Liabilities;
(b) any permitted further advance which may be made under any
agreement supplemental to any relevant facilities agreement
relating to the Subordinated Liabilities or the Liabilities
plus all interest, fees and costs in connection therewith;
(c) any claim against any Obligor flowing from any recovery by an
Obligor of a payment or discharge in respect of the
Subordinated Liabilities or the Liabilities on the grounds of
preference or otherwise; and
(d) any amounts (such as post-insolvency interest) which would be
included in any of the above but for any discharge,
non-provability, unenforceability or non-allowability of the
same in any insolvency or other proceedings.
"ASSIGNMENT AGREEMENT" means the pledge agreement pursuant to which the
claims of the Subordinated Lender under the Shareholder Loans and under
the PIK Loan Agreement (including following the Shareholder Loan
Restructuring and the PIK Loan Restructuring) and under the Senior
Notes Loan Agreement will be pledged to the Trustee. The Assignment
Agreement and the Second Share Pledge may be incorporated into one
document.
"BENEFICIARIES" means the Finance Parties.
"DISCHARGE DATE" means the date on which all Liabilities have been
fully paid and discharged to the satisfaction of the Security Agent
(acting reasonably), whether or not as a result of an enforcement.
"EVENT OF DEFAULT" means any event of default (howsoever described)
under the Senior Facility Agreement.
"INSOLVENCY EVENT" means:
(a) the appointment of an insolvency administrator in respect of
the Company or any of its assets:
(b) the shareholders of the Company pass a resolution for its
dissolution, liquidation or winding up; or
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(c) the Company having commenced negotiations with its third-party
creditors with a view to rescheduling or restructuring its
indebtedness VIS-A-VIS such third party creditors (in whole or
in part) by reason of its inability to meet payments of all
such indebtedness on its due date for payment.
"LIABILITIES" means all present and future sums, liabilities and
obligations payable or owing by any Obligor to any of the Beneficiaries
(whether contractual or by operation of law) under, pursuant to or
otherwise in connection with the Finance Documents together with all
Ancillary Liabilities relating thereto.
"MAJORITY BENEFICIARIES" means a Beneficiary or Beneficiaries to whom
in aggregate more than sixty-six and two thirds per cent. of the
amounts outstanding under the Senior Facilities is (or, immediately
prior to its repayment, was then) owed, calculated on the date on which
the Facility Agent under the Senior Facilities Agreement seeks
instructions from the Beneficiaries.
"PAYMENT BLOCKAGE PERIOD" means the period for which the Security Agent
has issued a blockage notice to the Company (copied to the Subordinated
Lender and to the Trustee) specifying that no payments may be made in
respect of the Subordinated Liabilities for a specific period as a
result of the occurrence of an Event of Default, PROVIDED THAT:
(a) such blockage shall only be effective and only last whilst
such Event of Default is continuing;
(b) such blockage will last for no longer than 179 days from the
date such notice was served;
(c) there can be no more than one such blockage notice(s) served
in any period of 365 days; and
(d) no Event of Default that existed when a blockage notice was
given can be the basis of a subsequent blockage notice unless
cured for a period of at least 180 days in between.
"PERMITTED PAYMENTS" means (i) interest payments under the Senior Notes
Loan Agreement at a rate no greater than the cash interest rate under
the Senior Notes together with any additional amounts payable under
applicable tax gross-up provisions of the Senior Notes and any
additional interest payable in the event of a registration default in
respect of the Senior Notes, (ii) the payment of principal amount due
under the Senior Notes Loan Agreement on the Repayment Date (as defined
in the Senior Notes Loan Agreement) and (iii) indemnity payments in
respect of Senior Notes Costs.
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"SECURITY" means any encumbrance, hypothecation, guarantee, indemnity
or other security or preferential arrangement, present or future,
actual or contingent.
"SECURITY AGENT" means Bayerische Hypo- und Vereinsbank AG, London
Branch and any substitute or replacement agent then acting on behalf of
the Beneficiaries.
"SENIOR NOTES DOCUMENTS" means the Indenture and the Senior Notes.
"SENIOR NOTES PAYMENT DEFAULT" means a payment default under the Senior
Notes Documents, relating to principal, premium, interest or otherwise,
which is continuing. For clarification purposes, this does not include
a cross-default under the Senior Notes Documents due to a non-payment
of other debt.
"SENIOR NOTES PAYMENT DEFAULT DATE" means the date on which a Senior
Notes Payment Default has occurred.
"SENIOR PAYMENT DEFAULT" means a payment default under the Finance
Documents which is continuing and relating to (i) the non-payment of
principal or interest or (ii) the non-payment of any other amount
which, when aggregated with all other amounts not paid, exceeds EUR
1,000,000.
"STANDSTILL PERIOD" means a period that begins on the Senior Notes
Payment Default Date and ends on the first to occur of:
(a) the expiry of 120 days from the date the Company or the
Subordinated Lender has notified the Senior Agent in writing
that there has been a Senior Notes Payment Default; and
(b) the date upon which an Insolvency Event occurs.
"SHARE PLEDGE" means all pledges over shares in the Company granted as
security for any of the Liabilities.
"SECOND SHARE PLEDGE" means a second ranking share pledge over the
shares in the Company granted to the Trustee as security for the Senior
Notes.
"SUBORDINATED LIABILITIES" means all present and future sums,
liabilities and obligations payable or owed by the Company to the
Subordinated Lender under, pursuant to or in connection with the Senior
Notes Loan Agreement together with all Ancillary Liabilities relating
thereto.
1.2 Terms and expressions defined in the Senior Facility Agreement shall
have the same meaning in this Agreement except as otherwise defined
herein.
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1.3 Unless the context or the express provisions of this Agreement
otherwise require, all references to a party include references to its
permitted assignees and transferees and its successors in title and
(where applicable) to any replacement or additional agent or Security
Agent or Trustee.
1.4 Save where the contrary is indicated, any reference in this Agreement
to:
1.4.1 this Agreement or any other agreement or document shall be construed as
a reference to this Agreement or, as the case may be, such other
agreement or document as the same may have been, or may from time to
time be, amended, varied, novated or supplemented;
1.4.2 a statute shall be construed as a reference to such statute as the same
may have been, or may from time to time be, amended or re-enacted.
1.5 Clause headings are for ease of reference only.
2. SUBORDINATION (RANGRUCKTRITT) OF SUBORDINATED LIABILITIES
2.1 In consideration of the Beneficiaries making or continuing to make
advances or giving credit or granting other facilities or accommodation
pursuant to the Senior Facility Agreement, the Subordinated Lender and
the Company hereby agree with the Security Agent (on behalf of the
Beneficiaries) and declare as follows:
2.2 Until the Discharge Date, the Subordinated Liabilities shall be
irrevocably subordinated (TRETEN IM RANG ZURUCK) to all Liabilities and
subject in right of payment to the extent and in the manner hereinafter
set forth. The subordination effected hereunder shall also apply upon
and after the application for the commencement of insolvency
proceedings or any similar event in relation to the Company (ANTRAG AUF
EROFFNUNG DES INSOLVENZVERFAHRENS). The subordination shall continue to
be effective upon any amendment, supplement, variation or novation of
any of the Finance Documents.
2.3 Save to the extent permitted by Clause 4 (PERMITTED PAYMENTS), until
the Discharge Date the Company will not make any prepayment or payment
(whether in cash, by way of transfer of assets or otherwise) on account
of or grant or permit to subsist any Security in respect of the
Subordinated Liabilities nor shall the Subordinated Lender, save to the
extent permitted by Clause 5 (ENFORCEMENT), be entitled to demand or
receive any such payment or prepayment or Security or to commence any
proceedings against the Company or take any action in respect of the
Subordinated Liabilities or any part thereof (including, without
limitation, the exercise of any right of set-off, counterclaim or lien
or any action or step with a view to winding-up the Company).
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2.4 In the event of payment or prepayment of principal, interest or
otherwise (whether in cash, by way of transfer of assets or otherwise)
being made to, or Security being held by the Subordinated Lender in
breach of Clause 2.3, the Subordinated Lender will forthwith return to
the Company any sum or other assets which shall have been received by
it from the Company in consequence of such breach (which sum or other
assets shall be deemed not to have reduced the liability of the Company
to the Subordinated Lender) and until such payment or transfer the
Subordinated Lender will hold such sums or other assets or such
Security (as the case may be) on trust (TREUHANDERISCH) for the Company
provided, however, that these provisions shall not constitute or create
or be deemed to constitute or create any encumbrance or other security
interest of any kind.
2.5 Neither the Subordinated Lender nor the Company shall knowingly take or
omit to take any action whereby the subordination of the Subordinated
Liabilities (or any part thereof) as contemplated in this Clause 2
might be terminated, impaired or adversely affected.
3. COVENANTS OF THE SUBORDINATED CREDITORS
3.1 The Subordinated Lender hereby covenants with the Security Agent (on
behalf of the Beneficiaries) that until the Discharge Date it will not,
save to the extent permitted by Clause 4 (PERMITTED PAYMENTS) or Clause
5 (ENFORCEMENT) and except pursuant to the Assignment Agreement (i)
assign, pledge or otherwise dispose of the Subordinated Liabilities or
any part thereof; (ii) purport to set off at any time any amount
payable by it to the Company against any amount of the Subordinated
Liabilities; and (iii) enforce any of the Subordinated Liabilities if
this would lead to the insolvency of the Company according to Finnish
law.
3.2 The Subordinated Lender and the Company hereby agree that the
Subordinated Liabilities shall be personal liabilities (PERSONLICHE
FORDERUNGEN) and as such shall not be assignable other than (i) by way
of the Assignment Agreement (PROVIDED THAT the Trustee has prior to
such assignment acceded to this Agreement) or (ii) as otherwise
expressly permitted in this Agreement.
3.3 The Subordinated Lender and the Company hereby agree not to amend,
supplement, release, cancel or waive, any term of the Senior Notes Loan
Agreement or this Agreement, without the prior written consent of the
Majority Beneficiaries where such amendment, supplement, release,
cancellation or waiver reasonably might be expected to adversely affect
the interests of the Beneficiaries.
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4. PERMITTED PAYMENTS
4.1 Prior to the Discharge Date and subject to Clauses 4.2 and 4.3 below,
the Subordinated Lender shall be entitled to request a Permitted
Payment and the Company shall be entitled to make a Permitted Payment
to the extent that the payment or receipt is a payment in accordance
with the terms of the Senior Notes Loan Agreement, provided that any
such Permitted Payment shall not be permitted to be made by the Company
more than five Business Days prior to the corresponding payment due
date under the Senior Notes.
4.2 If a Senior Payment Default has occurred which is continuing, then no
payments may be made or received in respect of any Subordinated
Liability until the Senior Payment Default has been remedied or waived
in writing or has ceased to exist.
4.3 If any other Event of Default has occurred, no payments may be made
during the Payment Blockage Period in respect of any Subordinated
Liability.
4.4 The suspension of payments pursuant to this Agreement shall not be
construed as a waiver by the Subordinated Lender of the Subordinated
Liabilities, but shall mean that any payments not permitted shall be
deferred (EINREDE DER STUNDUNG) until the first date thereafter on
which such payment is permitted by this Agreement, at which date such
payment shall fall due.
4.5 A failure to make any payments under the Senior Notes by reason of any
provision in this Agreement or in the Senior Notes Loan Agreement shall
not be construed as preventing or waiving the occurrence of a default
under the Senior Notes.
5. ENFORCEMENT
If at any time before the Discharge Date there occurs an event or
circumstance which entitles the Subordinated Lender to terminate or
accelerate the Subordinated Liabilities, or any event giving rise to an
obligation of the Company to repay the Subordinated Liabilities, the
Subordinated Lender shall promptly notify the Security Agent of such
event but the Subordinated Lender shall not, without the prior written
consent of the Security Agent (for and on behalf of the Beneficiaries):
(a) terminate or accelerate any of the Subordinated Liabilities or
otherwise declare any of the Subordinated Liabilities
prematurely payable or due;
(b) enforce the Subordinated Liabilities by attachment, execution
or by initiating or supporting any insolvency proceedings;
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(c) demand or receive any Security in respect of the Subordinated
Liabilities;
(d) commence any proceedings against the Company in respect of the
Subordinated Liabilities; or
(e) take any other enforcement action in respect of the
Subordinated Liabilities or any part thereof,
unless (in the case of each of (a) through (e) above):
(i) a Senior Notes Payment Default has occurred which is
continuing; and
(ii) the Standstill Period relating to such Senior Notes Payment
Default has expired.
PROVIDED THAT upon the occurrence and during the continuance of a
Senior Payment Default or a Payment Blockage Period, the Company will
not be permitted to make, and the Subordinated Lender will not be
permitted to retain, payment of any amount under the Senior Notes Loan
Agreement (except for the issuing of securities in lieu of payments
that are subordinated at least to the same extent that the Subordinated
Liabilities are subordinated to the Liabilities).
6. WAIVER
The Subordinated Lender hereby explicitly and irrevocably waives any
and all of its rights and claims against the Company arising under or
in relation to the Subordinated Liabilities upon the suspensive
conditions (AUFSCHIEBENDE BEDINGUNGEN) of (a) the receipt of a notice
by the Subordinated Lender from the Security Agent (acting on behalf of
the Beneficiaries) confirming that the shares in the Company which are
secured pursuant to the Share Pledge have been sold pursuant to the
enforcement of the Share Pledge (i) by way of public auction; or (ii)
in a way that the highest price for such a sale reasonably achievable
in the circumstances as certified by an independent investment bank has
been achieved; or (iii) by any other way if consented to by the Trustee
in writing; and (b) receipt of payment of the purchase price owing from
the purchaser of such shares in the Company by the Security Agent on
behalf of the Beneficiaries and, to the extent the purchase price
exceeds the Liabilities, receipt of such excess amount by the
Subordinated Lender or, following the enforcement by the Trustee of its
rights under the Assignment Agreement, by the Trustee (on behalf of the
holders of the Senior Notes).
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7. SECOND SHARE PLEDGE AND ACKNOWLEDGMENT OF SUBORDINATION
The Trustee, hereby covenants with the Beneficiaries that until the
Discharge Date it will not take any action to enforce the Second Share
Pledge.
The Trustee hereby further agrees that upon enforcement by it of the
security over the Senior Notes Loan Agreement constituted by the
Assignment Agreement its rights in respect of the Senior Notes Loan
Agreement (in particular but without limitation to receive payments
thereunder and to enforce the provisions thereof against the Company)
shall be limited to the same extent as the Subordinated Lenders<180>
rights under the Senior Notes Loan Agreement are limited by the terms
of this Agreement.
The Trustee hereby agrees with the Beneficiaries that in case of a
refinancing of the Liabilities the Second Share Pledge shall remain
second ranking as set forth in the deed constituting the Second Share
Pledge even following the Discharge Date.
In the event of breach of this Clause 7 by the Trustee the Trustee will
forthwith pay to the Security Agent (on behalf of the Beneficiaries)
any sum or other asset which shall have been received by it in
consequence of any such action taken in breach of this Clause 7 (which
sum or other assets shall be deemed not to have reduced the liability
of the Subordinated Lender to the Trustee under the Senior Notes or of
the Company to the Subordinated Lender under the Senior Notes Loan
Agreement) and until such payment or transfer the Trustee will hold
such sums or assets on trust (TREUHANDERISCH) for the Security Agent
provided, however, that these provisions shall not constitute or create
or be deemed to constitute or create any encumbrance or other security
interest of any kind.
With respect to the Beneficiaries and the Security Agent the Trustee
shall perform or observe only such of its covenants and obligations as
are specifically set forth in this Clause 7, and no implied covenants
or obligations with respect to the Beneficiaries or the Security Agent
shall be read into this Agreement against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the Beneficiaries or
the Security Agent other than as expressly provided for by this
Agreement. Without prejudice to the aforesaid, the Trustee shall not be
liable for any losses arising out of any acts or omission of the
Trustee under this Agreement except to the extent that such losses
arise by virtue of the Trustee's willful default, negligence or fraud.
The Trustee has the right to request the Security Agent to confirm to
the Trustee in writing whether or not there has occurred a Senior
Payment Default, whether or not a Standstill Period and/or a Payment
Blockage Period is running and whether or not the Discharge Date has
occurred. The Security Agent shall upon
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any such request by the Trustee confirm in writing to the Trustee as
requested within 10 Business Days from such request. The parties to
this Agreement agree that the Trustee may rely on any such confirmation
in writing issued by the Security Agent.
8. OTHER SECURITY AND DEALINGS
The Subordinated Lender, the Company and the Beneficiaries hereby agree
that the subordination hereby effected shall be in addition to and
shall not prejudice or affect any Security or any right or remedy of
the Beneficiaries in respect of the Liabilities whether from the
Company or the Subordinated Lender (or either of them) or any other
person nor shall the provisions hereof be prejudiced or affected by:
(a) any Security or right or remedy of the Beneficiaries in
respect of the Liabilities;
(b) any time or indulgence granted by the Beneficiaries to the
Company or to any other person;
(c) any variation, amendment, supplement or extension of the terms
of any Security in respect of the Liabilities;
(d) any arrangement or compromise made between the Beneficiaries
and any of the Company or any other person;
(e) any dealing with, exchange, release or invalidity of any
Security in respect of the Liabilities;
(f) any omission on the part of the Beneficiaries to enforce any
of their rights against any of the Company or any other person
or any Security in respect of the Liabilities;
(g) the filing for insolvency proceedings in relation to
Subordinated Lender and/or the Company; and
(h) any other fact or circumstance whatsoever whether or not
similar to any of the foregoing which could or might in any
way diminish the Subordinated Lender's or the Company's
obligations or the rights of the Beneficiaries under this
Agreement.
9. SYNDICATION
This Agreement is a contract for the benefit of the Beneficiaries
(VERTRAG MIT SCHUTZWIRKUNG FUR DRITTE). The Subordinated Lender and the
Company agree that upon an assignment and/or transfer of any rights and
benefits of any
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Beneficiary under the Finance Documents the relevant assignee or
transferee shall become a beneficiary under this Agreement by acceding
hereto.
10. NOTICES, AMENDMENTS, WAIVER
10.1 Each communication to be made hereunder shall be made in writing but,
unless otherwise stated, may be made by facsimile or letter. Each
communication shall be in German or English and if in German shall be
accompanied by a translation thereof into English certified as being
true and accurate by an officer of the person making or delivering the
same if so requested.
10.2 Any communication or document to be made or delivered by one person to
another pursuant to this Agreement shall (unless that other person has
by written notice to the other parties hereto specified another
address) be made or delivered to that other person at the addresses as
set out on the execution pages hereof.
10.3 All amendments or supplements to this Agreement or any waiver with
regard to this Agreement (including this Clause 10.3) shall be made in
writing.
11. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts each of which, when
so executed and delivered, shall be an original but all the
counterparts shall together constitute but one and the same instrument.
12. PARTIAL INVALIDITY; WAIVER
12.1 If at any time, one or more of the provisions hereof is or becomes
invalid, illegal or unenforceable in any respect under the law of any
jurisdiction, such provision shall as to such jurisdiction, be
ineffective to the extent necessary without affecting or impairing the
validity, legality and enforceability of the remaining provisions
hereof or of such provisions in any other jurisdiction. The parties
agree that such illegal, invalid or unenforceable provision shall be
deemed replaced by such provision which comes as close as possible to
the purpose of this Agreement.
12.2 No failure to exercise, nor any delay in exercising, on the part of the
Security Agent or the Trustee, any right or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise
of any right or remedy prevent any further or other exercise thereof or
the exercise of any other right or remedy. The rights and remedies
provided hereunder are cumulative and not exclusive of any rights or
remedies provided by law.
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13. LAW
This Agreement shall be governed by and construed in accordance with
German law.
14. JURISDICTION
14.1 The Subordinated Lender, the Trustee and the Company irrevocably agree
that the place of jurisdiction for any and all disputes arising under
or in connection with this Agreement shall be Munich and, for such
purposes, irrevocably submit to the jurisdiction of such courts.
14.2 The submission to the jurisdiction of the courts referred to in Clause
14.1 shall not (and shall not be construed so as to) limit the right of
any party hereto to take proceedings in any other court of competent
jurisdiction nor shall the taking of proceedings in any one or more
jurisdictions preclude the taking of proceedings in any other
jurisdiction, whether concurrently or not.
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SCHEDULE 1
FORM OF SENIOR NOTES LOAN AGREEMENT
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THIS AGREEMENT has been executed by the parties the day and year first above
written.
POOL ACQUISITION HELSINKI OY
By:
Address:
Fax:
Attention:
SANITEC INTERNATIONAL S.A.
By:
Address:
Fax:
Attention:
THE BENEFICIARIES
BAYERISCHE HYPO- UND VEREINSBANK AG, LONDON BRANCH, in its capacity as Senior
Agent, Security Agent and Senior Bank
By:
Address:
Fax:
Attention:
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THE SENIOR BANKS
BAYERISCHE HYPO- UND VEREINSBANK AG, LONDON BRANCH
By:
Address:
Tel:
Fax:
Attention:
MIZUHO FINANCIAL GROUP (THE FUJI BANK, LIMITED)
By:
Address: London Xxxxxx
Xxxxx Xxxxx Xxxxx
0-00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 00 00 000 000 0000
Fax: 00 44 207 847 2039
Attention: Xxxx Xxxxxx
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NORDEA BANK FINLAND PLC (FORMERLY KNOWN AS XXXXXX BANK PLC)
By:
Address: Corporate Division
Xxxxxxx Xxxxx xxxx 0-0
XXX - 00000 Xxxxxx-Xxxxxx
Xxxxxxx
Tel: 00 000 0 000 00000
Fax: 00 358 9 165 52797
Attention: Xxxxxx Xxxxxxxx/Xxxxxx Xxxxxxxx
THE ROYAL BANK OF SCOTLAND GMBH
By:
Address: Xxxxxxxxxxxxxxx 00
X-00000 Xxxxxxxxx xx Xxxx
Tel: 00 00 00 0000 0000
Fax: 00 49 69 1700 6279
Attention: Xxxxxxxx Xxxxxxx/Xxxxxxx XxXxxxxx
XXXXXXX XXXXX CREDIT PARTNERS, L.P.
By:
Address: Xxxxxxxxxxxx Xxxxx
000 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 00 00 000 000 0000
Fax: 00 44 207 552 7070
Attention: Xxxxxxx Xxxxxx
-00-
XXXXXXX XXXXX XXXXXXX XXXXXXXXXXX, XXX XXXX
By:
Address: 4 World Financial Center - 0xx Xxxxx
Xxx Xxxx, XX 00000
Tel: 000 000 000 0000 / 6998
Fax: 000 000 000 1719
Attention: Eve Larn/Xxxx Xxxxxxxx
THE BANK OF NEW YORK
By:
Address:
Tel:
Fax:
Attention:
