Exhibit 10.14
[CLIFFORD CHANCE
PUNDER LOGO]
Conformed Copy
Dated [7 May] 2002
THE INITIAL INVESTORS
Named Herein
SANITEC OY
as Parent, Original Borrower, Liquidity Borrower and Original Guarantor
POOL FINANCING HELSINKI OY
as Junior Borrower and Original Guarantor
BAYERISCHE HYPO- UND VEREINSBANK AG, LONDON BRANCH
as Liquidity Lender, Senior Agent, Junior Agent and Security
Agent
POOL SUB-FINANCING HELSINKI OY
as Lender of PIK Proceeds
POOL ACQUISITION NETHERLANDS B.V.
as Outgoing Lender of Lux PIK Loan Proceeds
POOL ACQUISITION LUXEMBOURG I S.A.
as borrower under the PIK Loan
LUX NEWCO II
as Incoming Lender of Lux PIK Loan Proceeds
GERMAN NEWCO
as future direct shareholder of Lux Newco II
THE BANK OF NEW YORK
as Trustee
and
OTHERS
-------------------------------------------------
THIRD AMENDMENT AGREEMENT RELATING TO A
SUBORDINATION AGREEMENT DATED 26 APRIL 2001 AS
AMENDED AND RESTATED BY A FIRST AMENDMENT
AGREEMENT DATED 27 AUGUST 2001 AND A SECOND
AMENDMENT AGREEMENT DATED 14 DECEMBER 2001
-------------------------------------------------
CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation........................................3
2. Restatement...........................................................3
3. Accession.............................................................3
4. Representations.......................................................4
5. Continuity And Further Assurance......................................4
6. Fees, Costs And Expenses..............................................5
7. Miscellaneous.........................................................5
SCHEDULE 1 Conditions Precedent................................................6
ANNEX I Restated Agreement.....................................................7
THIS AGREEMENT is dated [7 May] 2002 and made between:
(1) THE INITIAL INVESTORS (as defined below);
(2) SANITEC OY ("FIN NEWCO I") in its capacity as parent (the "PARENT"), as
original borrower (the "ORIGINAL BORROWER"), as liquidity borrower (the
"LIQUIDITY BORROWER") and as original guarantor (an "ORIGINAL GUARANTOR"
and together with Fin Newco II, the "ORIGINAL GUARANTORS");
(3) POOL FINANCING HELSINKI OY ("FIN NEWCO II") in its capacity as junior
borrower (the "JUNIOR BORROWER") and as original guarantor (an "ORIGINAL
GUARANTOR");
(4) POOL SUB-FINANCING HELSINKI OY in its capacity as lender of the PIK
proceeds ("FIN NEWCO III");
(5) POOL ACQUISITION NETHERLANDS B.V. in its capacity as outgoing lender of
the proceeds under the PIK Loan entered into by Lux Newco as borrower (if
any) ("DUTCH NEWCO");
(6) SANITEC INTERNATIONAL S.A. in its capacity as incoming lender of the
proceeds under the PIK Loan entered into by Lux Newco as borrower (if
any) ("LUX NEWCO II");
(7) POOL ACQUISITION LUXEMBOURG I S.A. in its capacity as borrower under the
PIK Loan ("LUX NEWCO");
(8) SANITEC INTERNATIONAL AG as future direct shareholder of Lux Newco II;
(9) BAYERISCHE HYPO- UND VEREINSBANK AG, LONDON BRANCH in its capacity as
trustee (TREUHANDER) and administrator of the Security for the
Beneficiaries (the "SECURITY AGENT"), as agent for the Senior Banks under
the Senior Facility Agreement (the "SENIOR AGENT") and as agent for the
Junior Lenders under the Junior Facility Agreement (the "JUNIOR AGENT")
and as liquidity lender (the "LIQUIDITY LENDER"); and
(10) THE BANK OF NEW YORK as Trustee of the holders of the Senior Notes (the
"Trustee")
RECITALS
(A) Pursuant to the terms of a senior facility agreement dated 26 April 2001
made between, INTER ALIOS, Fin Newco I as parent, as borrower and as
original guarantor, Fin Newco II as original guarantor, Bayerische
Hypo-und Vereinsbank AG, London Branch as facility agent and as security
agent and the Banks named therein (as amended, novated, supplemented,
superseded or extended from time to time, the "SENIOR FACILITY
AGREEMENT"), the Banks 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 EUR 245,000,000 junior facility agreement dated 26 April 2001
between, INTER ALIOS, Fin Newco II as junior borrower, Fin Newco I as
original 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 agreed to grant a term loan facility to Fin Newco II.
(C) By amendment agreements dated 27 August 2001 and 14 December 2001
(together, the "AMENDMENT Agreements"), the terms of each of the Senior
Facility Agreement and the Junior Facility Agreement were amended and
restated.
(D) Pursuant to a subordination agreement dated 26 April 2001 between, INTER
ALIOS, the Initial Investors, Fin Newco I as parent, as original
borrower, as liquidity borrower and as original guarantor, Fin Newco II
as junior borrower and as original guarantor, Bayerische Hypo- und
Vereinsbank AG, London Branch as trustee, security agent, senior agent
and junior agent, the Senior Banks, Xxxxxx Xxxxxxx and Liquidity Lender
(each as defined therein) (as amended, novated, supplemented, superseded
or extended from time to time, the "SUBORDINATION AGREEMENT"), the claims
of various entities against Fin Newco I and Fin Newco II were regulated
and/or subordinated in the manner set out therein.
(E) 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.
(F) 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.
(G) The parties hereto have agreed to amend the Subordination Agreement on
the terms and subject to the conditions hereof.
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IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS In this Agreement:
"EFFECTIVE DATE" means the date on which the Senior Agent confirms to the
Parent that it has received each of the documents listed in Schedule 1
(CONDITIONS PRECEDENT), each in a form and substance satisfactory to the
Senior Agent.
"RESTATED AGREEMENT" means the 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 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 Subordination
Agreement shall have effect as if set out in this Agreement.
1.3 CLAUSES
(a) 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.
(b) Xxxxxx, Xxxxx and Xxxxxxxx headings are for ease of reference
only.
2. RESTATEMENT
RESTATEMENT OF THE SUBORDINATION AGREEMENT With effect from the Effective
Date the 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
German Newco, Lux Newco, the Trustee and Lux Newco II hereby agree with
each other person who is or who becomes a party to the Amended Agreement
that with effect on and from the date hereof they will be bound by the
Amended Agreement as if they had been an original party to the Amended
Agreement.
Address for notice of German Newco for the purpose of Clause 7 (NOTICES)
of the Amended Agreement is:
Sanitec International AG
Xxxxxxxxx 00
00000 Xxxxxxx
-3-
c/o UPM-Kymmene Sales GmbH
Postfach 30 49 26
20316 Hamburg
Address for notice of Lux Newco for the purpose of Clause 7 (NOTICES) of
the Amended Agreement is:
00-00 Xxxxxxxxx xx Xxxxxx Xxxxx, X-0000 Xxxxxxxxxx
Address for notice of Lux Newco II for the purpose of Clause 7 (NOTICES)
of the Amended Agreement is
00-00 Xxxxxxxxx xx Xxxxxx Xxxxx, X-0000 Xxxxxxxxxx
Address for notice of the Trustee for the purpose of Clause 7 (NOTICES)
of the Amended Agreement is:
ATO: Xxxx Xxxxxxx
The Bank of New York
Xxx Xxxxxx Xxxxxx
Xxxxxx X00 0 AL
4. REPRESENTATIONS AND COVENANT
Each Obligor 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 Parent covenants to supply to the Senior Agent a certificate of an
Authorised Signatory of such Obligor 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 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.
-4-
5.2 FURTHER ASSURANCE
The Parent shall, at the request of the Senior 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 Parent shall promptly on demand pay the Senior Agent and each of the
Banks 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 Parent shall, within three Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal fees)
incurred by that Finance Party 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 Parent shall pay and, within three Business Days of demand, indemnify
each Finance Party against any cost, loss or liability that Finance Party
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 10 (PARTIAL INVALIDITY; WAIVER), Clause 11 (LAW)
and Clause 12 (JURISDICTION) of the Restated 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.
-5-
SCHEDULE 1
CONDITIONS PRECEDENT
1. In relation to Fin Newco I, Fin Newco II, Fin Newco III, Dutch Newco, Lux
Newco and Lux Newco II (together the "OBLIGORS" and each an "OBLIGOR"):
(a) a copy, certified as true, complete and up-to-date as at the date
hereof of the constitution and documents of each obligor;
(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 Senior
Notes Loan Subordination Agreement.
-6-
ANNEX I
RESTATED AGREEMENT
-7-
SIGNATURES
THIS AGREEMENT has been executed by the parties the day and year first above
written.
THE INITIAL INVESTORS
[Xx. Xxxx Xxxxxx by power of attorney] [Xx. Xxxx Xxxxxx by power of attorney]
....................................... ......................................
On behalf of CIE Management II On behalf of CIE Management II
Limited as Managing General Limited as Managing General
Partner of BC European Partner of BC European
Capital VII-1 Capital VII-9
[Xx. Xxxx Xxxxxx by power of attorney] [Xx. Xxxx Xxxxxx by power of attorney]
....................................... ......................................
On behalf of CIE Management II On behalf of CIE Management II
Limited as Managing General Limited as Managing General
Partner of BC European Partner of BC European
Capital VII-2 Capital VII-10
[Xx. Xxxx Xxxxxx by power of attorney] [Xx. Xxxx Xxxxxx by power of attorney]
....................................... ......................................
On behalf of CIE Management II On behalf of CIE Management II
Limited as Managing General Limited as Managing General
Partner of BC European Partner of BC European
Capital VII-3 Capital VII-11
[Xx. Xxxx Xxxxxx by power of attorney] [Xx. Xxxx Xxxxxx by power of attorney]
....................................... ......................................
On behalf of CIE Management II On behalf of CIE Management II
Limited as Managing General Limited as Managing General
Partner of BC European Partner of BC European
Capital VII-4 Capital VII-12
[Xx. Xxxx Xxxxxx by power of attorney] [Xx. Xxxx Xxxxxx by power of attorney]
....................................... ......................................
On behalf of CIE Management II On behalf of CIE Management II
Limited as Managing General Limited as Managing General
Partner of BC European Partner of BC European
Capital VII-5 Capital VII-14
-8-
[Xx. Xxxx Xxxxxx by power of attorney] [Xx. Xxxx Xxxxxx by power of attorney]
....................................... ......................................
On behalf of CIE Management II On behalf of CIE Management II
Limited as Managing General Limited as Managing General
Partner of BC European Partner of BC European
Capital VII-6 Capital VII-15
[Xx. Xxxx Xxxxxx by power of attorney] [Xx. Xxxx Xxxxxx by power of attorney]
....................................... ......................................
On behalf of CIE Management II On behalf of CIE Management II
Limited as Managing General Limited as Managing General
Partner of BC European Partner of BC European
Capital VII-7 Capital VII-16
[Xx. Xxxx Xxxxxx by power of attorney] [Xx. Xxxx Xxxxxx by power of attorney]
....................................... ......................................
On behalf of CIE Management II On behalf of Teabar Capital
Limited as Managing General Corporation, 0000 Xxxxx Xxxxxx.
Partner of BC European Suite 500, Toronto, Ontario M2M
Capital VII-8
[Xx. Xxxx Xxxxxx by power of attorney] [Xx. Xxxx Xxxxxx by power of attorney]
....................................... ......................................
On behalf of Southlight Investment On behalf of CDPQ Europe Inc.,
Pte Ltd, 000 Xxxxxxxx Xxxx, #00-00, 0000, xxxxxx XxXxxx Xxxxxxx,
Xxxxxxx Xxxxx, Xxxxxxxxx 000000, Xxxxxxxx, Xxxxxx, Xxxxxx
Xxxxxxxx xx Xxxxxxxxx
[Xx. Xxxx Xxxxxx by power of attorney] [Xx. Xxxx Xxxxxx by power of attorney]
....................................... ......................................
On behalf of HVB Offene On behalf of BC European Capital VII
Unternehmensbeteiligungs AG, Top-Up 1, PO Box 255, Xxxxxxxx House,
Am Tucherpark 0, 00000 Xxxxxx Xx. Xxxxxx'x Xxxxxx, Xx. Xxxxx Xxxx,
Xxxxxxxx, Channel Islands
-9-
[Xx. Xxxx Xxxxxx by power of attorney] [Xx. Xxxx Xxxxxx by power of attorney]
....................................... ......................................
On behalf of BC European Capital VII On behalf of European Capital VII
Top-Up 1, PO Box 255, Xxxxxxxx House, Top-Up 1, PO Box 255, Xxxxxxxx House,
St. Julian's Avenue, St. Xxxxx Port, St. Julian's Avenue, St. Xxxxx Port,
Guernsey, Channel Islands Guernsey, Channel Islands
[Xx. Xxxx Xxxxxx by power of attorney] [Xx. Xxxx Xxxxxx by power of attorney]
....................................... ......................................
On behalf of European Capital VII On behalf of European Capital VII
Top-Up 1, PO Box 255, Xxxxxxxx House, Top-Up 1, PO Box 255, Xxxxxxxx House,
St. Julian's Avenue, St. Xxxxx Port, St. Julian's Avenue, St. Xxxxx Port,
Guernsey, Channel Islands Guernsey, Channel Islands
[Xx. Xxxx Xxxxxx by power of attorney] [Xx. Xxxx Xxxxxx by power of attorney]
....................................... ......................................
On behalf of European Capital VII On behalf of Xxxxxx Xxxxxxx,
Top-Up 1, PO Box 255, Xxxxxxxx House, 00 xxx Xxxxxx xx Xxxx,
Xx. Xxxxxx'x Xxxxxx, Xx. Xxxxx Xxxx, 00000 Xxxxx, Xxxxxx
Guernsey, Channel Islands
[Xx. Xxxx Xxxxxx by power of attorney] [Xx. Xxxx Xxxxxx by power of attorney]
....................................... ......................................
On behalf of Xxxxxx Xxxxxxxxxx, On behalf of Xxxxxx-Xxxxxxx Xxxxxxx,
000 Xxxxxxxxx Xxxxx-Xxxxxxx, 00 xxx Xxxxxxxx, 00000 Xxxxx, Xxxxxx
00000 Xxxxx, Xxxxxx
(
[Xx. Xxxx Xxxxxx by power of attorney] [Xx. Xxxx Xxxxxx by power of attorney]
....................................... ......................................
On behalf of Xxxxxxx Xxxxxxx, On behalf of Blue Capital Equity I
00 xxx Xxxxxx xx Xxxx, GmbH & Co XX
00000 Xxxxx, Xxxxxx
FIN NEWCO I
SANITEC OY
-10-
By: [Xx. Xxxx Xxxxxx by power of attorney]
FIN NEWCO II
POOL FINANCING HELSINKI OY
By: [Xx. Xxxx Xxxxxx by power of attorney]
FIN NEWCO III
POOL SUB-FINANCING HELSINKI OY
By: [Xx. Xxxx Xxxxxx by power of attorney]
DUTCH NEWCO
POOL ACQUISITION NETHERLANDS B.V.
By: [Xx. Xxxx Xxxxxx by power of attorney]
LUX NEWCO II
SANITEC INTERNATIONAL S.A.
By: [Xx. Xxxx Xxxxxx by power of attorney]
LUX NEWCO
POOL ACQUISITION LUXEMBOURG I S.A.
By: [Xxxx-Xxxxx Xxxxxx by power of attorney]
-11-
GERMAN NEWCO
SANITEC INTERNATIONAL AG
By: [Xx. Xxxx Xxxxxx by power of attorney]
TRUSTEE
THE BANK OF NEW YORK
By: [Xxxx Xxxxxxx, AVP]
-12-
THE SENIOR AGENT, THE JUNIOR AGENT , THE LIQUIDITY LENDER AND THE SECURITY AGENT
BAYERISCHE HYPO- UND VEREINSBANK AG, LONDON BRANCH
By: [Xxxxxxxxxxx Xxxx by power of attorney]
[Xxxxx Xxxxxxxxx by power of attorney]
-13-
-14-
[CLIFFORD CHANCE
PUNDER LOGO]
ANNEX I
THE INITIAL INVESTORS
NAMED HEREIN
FIN NEWCO I
AS PARENT, ORIGINAL BORROWER AND ORIGINAL GUARANTOR
FIN NEWCO II
AS XXXXXX XXXXXXXX AND ORIGINAL GUARANTOR
BAYERISCHE HYPO- UND VEREINSBANK AG, LONDON BRANCH
AS SENIOR AGENT, JUNIOR AGENT AND SECURITY AGENT
FIN NEWCO III
AS LENDER OF PIK PROCEEDS
DUTCH NEWCO
AS OUTGOING LENDER OF LUX PIK LOAN PROCEEDS
LUX NEWCO
AS BORROWER UNDER THE PIK LOAN PROCEEDS
LUX NEWCO II
AS INCOMING LENDER OF LUX PIK LOAN PROCEEDS
GERMAN NEWCO
AS FUTURE DIRECT SHAREHOLDER OF LUX NEWCO II
AND
OTHERS
---------------------------------------------------
SUBORDINATION AGREEMENT
AS AMENDED AND RESTATED BY A FIRST AMENDMENT
AND RESTATEMENT AGREEMENT DATED 27
AUGUST 2001 AND A SECOND AMENDMENT AND RESTATEMENT
AGREEMENT DATED 14 DECEMBER 2001 AND A THIRD
AMENDMENT AND RESTATEMENT AGREEMENT DATED
__________________________
---------------------------------------------------
CONTENTS
CLAUSE PAGE
1. Interpretation............................................................4
2. Subordination (RANGRUCKTRITT).............................................6
3. Covenants of the Initial Investors, Dutch Newco and
Fin Newco III; Waiver.....................................................8
4. Other Security and Dealings...............................................9
5. Syndication..............................................................10
6. Judgment Currency........................................................11
7. Notices, Amendments, Waiver..............................................12
8. Counterparts.............................................................12
9. Partial Invalidity; Xxxxxx...............................................12
10. Law......................................................................12
11. Jurisdiction.............................................................12
THIS SUBORDINATION AGREEMENT is made the 26 April 2001
BETWEEN:
(1) THE INITIAL INVESTORS whose names are set out as Initial Investors on the
execution pages of this Agreement (each an "INITIAL INVESTOR" and
collectively the "INITIAL INVESTORS ");
(2) FIN NEWCO I in its capacity as parent (the "PARENT"), as original
borrower (the "ORIGINAL BORROWER") and as original guarantor (a "ORIGINAL
GUARANTOR" and together with Fin Newco II the "ORIGINAL GUARANTORS"); and
(3) FIN NEWCO II in its capacity as Junior borrower (the "JUNIOR BORROWER"),
and as original guarantor (a "ORIGINAL GUARANTOR");
(4) FIN NEWCO III in its capacity as lender of the PIK proceeds;
(5) DUTCH NEWCO in its capacity as outgoing lender of the proceeds under the
PIK Loan entered into by Lux Newco as borrower (if any);
(6) LUX NEWCO in its capacity as borrower under the PIK Loan;
(7) LUX NEWCO II in its capacity as incoming lender of the proceeds under the
PIK Loan entered into by Lux Newco as borrower, if any;
(8) GERMAN NEWCO in its capacity as future direct shareholder of Lux Newco
II;
(9) BAYERISCHE HYPO- UND VEREINSBANK AG, LONDON BRANCH in its capacity as
trustee (TREUHANDER) and administrator of the Security for the
Beneficiaries (the "SECURITY AGENT") and in its capacity as agent for the
Senior Banks under the Senior Facility Agreement (the "SENIOR Agent") and
in its capacity as agent for the Junior Lenders under the Junior Facility
Agreement (the "JUNIOR AGENT");
(10) THE FINANCIAL INSTITUTIONS whose names are set out as senior banks on the
execution pages of this Agreement (the "SENIOR BANKS");
(11) THE FINANCIAL INSTITUTIONS whose names are set out as junior lenders on
the execution pages of this Agreement (the "JUNIOR LENDERS"); and
(12) 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 on or about
the date hereof 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
-1-
secured debt facilities (the "SENIOR FACILITIES") in a total amount of up
to EUR 615,000,000.
(B) Certain Senior Banks and/or Junior Lenders may enter into interest rate
hedge agreements with Fin Newco I and Fin Newco II, to hedge obligations
of the obligors under the Senior Facility Agreement and/or the Junior
Facility Agreement (upon them becoming a party hereto by way of accession
as a hedge counterparty, each a "HEDGE COUNTERPARTY" and together the
"HEDGE COUNTERPARTIES").
(C) Pursuant to the terms of a Junior facility agreement dated on or about
the date hereof 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.
(D) The proceeds of the Junior Facility will be on-lent from Fin Newco II to
Fin Newco I pursuant to the terms of a Junior on-loan agreement dated on
or about the date hereof (the "JUNIOR ON-LOAN AGREEMENT") by way of a
Junior on-loan (the "JUNIOR ON-LOAN").
(E) Pursuant to the terms of a liquidity facility agreement dated on or about
the date falling one month 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 secured liquidity
facility (the "LIQUIDITY FACILITY") in an amount up to EUR 40,000,000.
All amounts outstanding under the Liquidity Facility Agreement have been
repaid and the Liquidity Facility has been cancelled.
(F) The Initial Investors have agreed to subscribe to new shares in Fin Newco
I and to provide Fin Newco I with funds in the form of registered share
capital and premium or otherwise (the "EQUITY CONTRIBUTION"). Dutch NewCo
has acquired such shares from the Initial Investors. Upon the dissolution
of Dutch Newco Lux Newco II will hold such shares.
(G) The Initial Investors have agreed to subscribe to new shares in Fin Newco
II and to provide Fin Newco II with funds in the form of registered share
capital and premium or otherwise (the "EQUITY CONTRIBUTION II"). Dutch
NewCo has acquired such shares from the Initial Investors. Upon the
dissolution of Dutch Newco Lux Newco II will hold such shares.
(H) The Initial Investors have agreed to enter into a subordinated
shareholder loan agreement (as amended, novated, supplemented, superseded
or extended from time to time), (the "SHAREHOLDER LOAN AGREEMENT") with
Fin Newco I whereby the Initial Investors will make available certain
loans to Fin Newco I. Prior to or concurrently with the Junior Take-out
such shareholder loans will be restructured in such that they are granted
from the Initial Investors to Lux Newco from Lux Newco to Lux Newco II
and from Lux Newco II to Fin Newco I (the various new shareholder loan
agreements are collectively referred to as "SHAREHOLDER LOAN
AGREEMENTS").
-2-
(I) Following the PIK Take-Out Fin Newco III will on-lend the net proceeds of
the PIK Take-Out to Fin Newco II (the "PIK LOAN II") and Fin Newco II
will then on-lend such net proceeds to Fin Newco I pursuant to the terms
of a PIK on-loan agreement (the "PIK ON-LOAN AGREEMENT") by way of a PIK
on-loan (the "PIK ON-LOAN");
(J) Following the Junior Take-Out Lux Newco II will lend the net proceeds of
the Junior Take-Out to Fin Newco I by way of a senior notes loan
agreement (the "SENIOR NOTES LOAN AGREEMENT"). The claims of Lux Newco II
against Fin Newco I under the Senior Notes Loan Agreement will be
subordinated to the claims of the Senior Beneficiaries and the Liquidity
Beneficiaries and the Junior Beneficiaries on the terms of a senior notes
loan subordination agreement entered into or to be entered into between
Lux Newco II, Fin Newco I, the Senior Beneficiaries, the Liquidity
Beneficiaries and the Junior Beneficiaries (the "SENIOR NOTES LOAN
SUBORDINATION AGREEMENT").
(K) On or prior to the Junior Take-Out if the proceeds thereof are not
sufficient or not used to repay in full the PIK Loan, Lux Newco will
borrow under a new PIK Loan and will on-lend the net proceeds thereof to
Lux Newco II who will then on-lend such net proceeds to Fin Newco I by
way of transfer and restatement of the PIK Loan II and the PIK On-Loan
and thus in each case by way of a shareholder loan agreement (the "PIK
LOAN AGREEMENT").
(L) It is envisaged that Dutch Newco and prior to or upon its dissolution Lux
Newco II will grant a pledge over all shares of Fin Newco I for the
benefit of the Senior Beneficiaries, the Junior Beneficiaries and the
Liquidity Beneficiaries (the "SHARE PLEDGES").
(M) 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.
(N) It has been agreed between the parties hereto that the repayment claims
of the Initial Investors, Lux Newco II and/or Durch Newco against Fin
Newco I and Fin Newco II in relation to the redemption of the Equity
Contribution, the Equity Contribution II and the claims of the Initial
Investors against Lux Newco and of Lux Newco against Lux Newco II and of
Lux Newco II against Dutch Newco and following Dutch Newco's
dissolution against Fin Newco I ANd Fin Newco II and of Dutch Newco
against Fin Newco I and Fin Newco II as the case may be under the
Shareholder Loan Agreement, the Shareholder Loan Agreements, the PIK Loan
Agreement and any other shareholder loan agreement, Fin Newco III against
Fin Newco II under the PIK Loan II and Fin Newco II against Fin Newco I
under the PIK On-Loan or any other payment claims of the Initial
Investors, Lux Newco, Lux Newco II, Dutch Newco, Fin Newco III (or any of
them) against Lux Newco, Lux Newco II, Durch Newco, Fin Newco I or Fin
Newco
-3-
II (or any of them) (other than under 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:
"ACCESSION AGREEMENT" means an accession agreement substantially in the
form set out in the Schedule hereto with such amendments as the Security
Agent may require;
"ASSIGNMENT AGREEMENT" means the pledge agreement pursuant to which the
claims of Lux Newco II under the Shareholder Loan Agreement and/or the
Shareholder Loan Agreements and under the PIK Loan Agreement (including
following the Shareholder Loan Restructuring and the PIK Notes
Restructuring) and under the Senior Notes Loan Agreement will be pledged
to the Trustee.
"BENEFICIARIES" means the Senior Beneficiaries and the Junior
Beneficiaries.
"DUTCH NEWCO" means Pool Acquisition Netherlands B.V., a limited
liability company duly organised under the laws of the Netherlands with
its registered corporate seat in Volendam. Registered under 37096393 at
the Trade Xxxxxxxx.xx Volendam having a registered share capital of EUR
30,000,000.
"FACILITY DOCUMENTS" means the Finance Documents and the Junior
Documents.
"FIN NEWCO I" means 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, having a share capital of
EUR 8,100, which following the Merger is known as Sanitec Oy.
"FIN NEWCO II" means Pool Financing 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)
1700087-5 at the Trade Register in Helsinki, having a share capital of
EUR 8,100.
"FIN NEWCO III" means Pool Sub-Financing 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)
Y-1734186-4 at the Trade Register in Helsinki, having a share capital of
EUR 8,000.
"GERMAN NEWCO" means Sanitec International AG.
"INTERCREDITOR AGREEMENT" means the intercreditor agreement dated on or
about the date hereof entered into between, INTER ALIA, the Senior Agent,
the Junior Agent, the Security Agent, the Senior Banks, the Junior
Lenders, the Liquidity Lender, Fin Newco I and Fin Newco II.
-4-
"LIABILITIES" means the Senior Liabilities and the Junior Liabilities.
"LUX NEWCO" means Pool Acquisition Luxembourg I S.A., a stock corporation
(Societe Anonyme) company duly organised under the laws of Luxembourg
with its registered corporate seat in Luxembourg, registered under
Section B numero 82054 at the Trade Register in Luxembourg, having a
share capital of EUR 31,500.
"LUX NEWCO II" means Sanitec International S.A., 00-00 Xxxxxxxxx xx
Xxxxxx Xxxxx, X0000 Xxxxxxxxxx
"SECURITY" means any Encumbrance, hypothecation, guarantee, indemnity or
other security or preferential arrangement present or future, actual or
contingent.
"SUBORDINATED LIABILITIES" means
(a) all present and future sums, liabilities and obligations payable
or owing by Fin Newco I or Fin Newco II to the Initial Investors
and/or Dutch Newco and/or following Dutch Newco's dissolution Lux
Newco II (or any of them) in connection with redemption proceeds,
liquidation proceeds, repaid capital in case of a capital
decrease, any compensation in case of termination and/or
withdrawal of a shareholder of Fin Newco I, the surplus in case of
surrender and all other pecuniary claims associated with the
Equity Contribution and the Equity Contribution II;
(b) all present and future sums, liabilities and obligations payable
or owing or agreed to by Fin Newco I in favour of the Initial
Investors and/or Lux Newco II (or any of them) (as the case may
be) under and pursuant to the Shareholder Loan Agreement and/or
the Shareholder Loan Agreements (or any of them) or any other
shareholder loan (other than the Senior Notes Loan Agreement); all
present and future sums, liabilities and obligations payable or
owing or agreed to by Lux Newco II in favour of Lux Newco (as the
case may be) under and pursuant to the Shareholder Loan Agreement
and/or the Shareholder Loan Agreements (or any of them) or any
other shareholder loan (other than the Senior Notes Loan
Agreement); all present and future sums, liabilities and
obligations payable or owing or agreed to by Lux Newco in favour
of the Initial Investor (or any of them) pursuant to the
Shareholder Loan Agreement and/or the Shareholder Loan Agreements
(or any of them) or any other shareholder loan (other than the
Senior Notes Loan Agreement);
(c) all present and future claims and rights that Initial Investors
and Dutch Newco and/or Lux Newco II (or any of them) may otherwise
have against Fin Newco II and/or Fin Newco I, other than such
claims and rights arising from an arms' length basis; all present
and future claims and rights that Lux Newco II may otherwise have
against Dutch Newco other than such claims and rights arising from
an arms'length basis; all present aND future claims and rights
that Lux Newco may otherwise have against Lux Newco II other than
such claims and rights arising from an arms' length basis; all
present and future claims and rights
-5-
that the Initial Investor (or any of them) may otherwise have
against Lux Newco other than such claims and rights arising from
an arms' length basis;
(d) any and all sums in respect of dividend or capital repayments by
Fin Newco I or Fin Newco II;
(e) any present and future sums, liabilities and obligations payable
or owing or agreed to by Fin Newco II in favour of Fin Newco III
under and pursuant to the PIK Loan II; and
(f) any present and future sums, liabilities and obligations payable
or owing or agreed to by Fin Newco I in favour of Fin Newco II
under and pursuant to the PIK On-Loan.
"TRUSTEE", in relation to the Senior Notes at any point in time, means any
trustee then acting on behalf of the holders of the Senior Notes under the
Indenture.
1.2 Terms and expressions defined in the Senior Facility Agreement and/or the
Intercreditor Agreement shall have the same meaning in this Agreement
except as otherwise defined herein.
1.3 Unless the context or the express provisions of this Agreement otherwise
require, all references to a party include references to its permitted
assigns and transferees and its successors in title and (where
applicable) to any replacement or additional agent or Security Agent.
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; and
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)
2.1 In consideration of the Beneficiaries making or continuing to make
advances or giving credit or time or granting other facilities or
accommodation to or for the account of the Original Borrower and/or
Junior Borrower pursuant to the Senior Facility Agreement and/or Junior
Facility Agreement (as the case may be), Fin Newco I, Fin Newco II, Fin
Newco III and each of the Initial Investors, Lux Newco, Lux Newco II and
Dutch Newco hereby covenant with the Senior Agent, Junior Agent, the
Senior Banks and the Junior Lenders, the Security Agent (on behalf of the
Beneficiaries) and agree and declare as follows:
-6-
2.2 The Subordinated Liabilities shall be irrevocably subordinated 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 in relation to Fin Newco I and/or Fin Newco II,
Dutch Newco, Lux Newco II and/or Lux Newco (as the case may be). The
subordination shall continue to be effective upon any amendment,
supplement, variation or novation of any of the Facility Documents.
2.3 So long as any part of the Liabilities remains unpaid or undischarged,
neither Fin Newco I, Fin Newco II, Dutch Newco, Lux Newco II nor Lux
Newco will make any prepayment or payment (whether in cash, by way of
transfer of assets or otherwise) on account of or grant any Security in
respect of the Subordinated Liabilities (whether by way of cash, loan or
otherwise) nor shall the Initial Investors, Lux Newco, Lux Newco II,
Dutch Newco nor Fin Newco III (whether individually or collectively), be
entitled to demand or receive any such payment or Security or to commence
any proceedings against Fin Newco I, Fin Newco II, Dutch Newco, Lux Newco
II or Lux Newco 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 Fin Newco I, Fin Newco II, Dutch Newco,
Lux Newco II nor Lux Newco) OTHER THAN (i) with the Beneficiaries' prior
written consent or (ii) in respect of the Senior Notes Costs or (iii)
repayment of the PIK On-Loan and the PIK Loan II with an Instructing
Group's written consent unless at any time before the Senior Discharge
Date an Event of Default or any other event or circumstance which
entitles the Senior Beneficiaries to terminate the Senior Facilities
Agreement or an event giving rise to an obligation of the Borrowers to
prepay the Senior Facilities in full has occurred or (iv) under the PIK
Restructuring or (v) up to a maximum aggregate amount of EUR 5,000,000
per annum by way of interest payments, payments under upstream loans,
dividend payments or payments under a service agreement to Lux Newco II,
and/or Lux Newco and/or German Newco, the direct shareholder of Lux Newco
II, for the sole purpose of payment by the relevant company of staff,
equipment, travel, tax and other operative expenses, in each case as
evidenced by invoices and/or receipts and/or similar evidence. Funds in
excess of in aggregate EUR 5,000,000 per annum shall be allowed to be
upstreamed to German Newco and/or Lux Newco II and/or Lux Newco with the
prior written consent of the Beneficiaries, such consent not to be
unreasonably withheld, if Fin Newco I provides evidence satifacory to the
Beneficiaries that arms' length administration costs have been
incurred by German Newco, LUx Newco II and/or Lux Newco in excess of in
aggregate EUR 5,000,000 per annum.
2.4 In the event of payment (whether in cash, by way of transfer of assets or
otherwise) being made to, or Security being held by, the Initial
Investors, Lux Newco, Lux Newco II, Dutch Newco, German Newco or Fin
Newco III (or any of them) in breach of Clause 2.3, the Initial
Investors, Lux Newco, Lux Newco II, Dutch Newco, German Newco and Fin
Newco III will forthwith pay or transfer to the Security Agent (on behalf
of the Beneficiaries) any sum or other assets which shall have been
received by it in consequence of such breach (which sum or other assets
shall be deemed not to have reduced the liability of the relevant
payer/transferor or to the relevant payee/transferee
-7-
and until such payment or transfer the relevant payee or transferee will
hold such sums or other assets or such Security (as the case may be) on
trust (TREUHANDERISCH) for the Beneficiaries 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. Fin Newco
I, Fin Newco II, Dutch Newco, Lux Newco II, Lux Newco acknowledge that
any such amounts received by the Security Agent shall be applied towards
any outstanding claims of the Beneficiaries pursuant to and in the order
of priority stipulated by the Senior Facility Agreement, the Junior
Facility Agreement, the Security Trust Agreement and the Intercreditor
Agreement (as the case may be). If no claims of any Beneficiary are
outstanding the Security Agent shall treat any amounts received as
additional collateral.
2.5 Upon request of the Security Agent any of the Initial Investors, Lux
Newco II, Lux Newco, Dutch Newco and Fin Newco III shall prove in the
insolvency or in the winding-up (or other analogous event) of Lux Newco,
Lux Newco II, Dutch Newco, Fin Newco I and/or Fin Newco II for all or any
part of the Subordinated Liabilities, and thereby shall act in accordance
with the directions of the Security Agent and any payment or distribution
of assets of Lux Newco, Lux Newco II, Dutch Newco, Fin Newco I and/or Fin
Newco II of any kind or character to which the Initial Investor, Lux
Newco, Lux Newco II, Dutch Newco or Fin Newco III (or any of them) would
have been entitled except for the provisions of this Clause 2 shall be
paid by the liquidator of Lux Newco, Lux Newco II, Dutch Newco, Fin Newco
I and/or Fin Newco II or any other person making such payment or
distribution, to the Security Agent (on behalf of the Beneficiaries) to
the extent necessary to repay all the Liabilities in full in accordance
with their terms.
2.6 Other than as contemplated in or permitted under any of the Facility
Documents neither the Initial Investors, Lux Newco, Lux Newco II, Dutch
Newco, Fin Newco I, Fin Newco II nor Fin Newco III 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 to the
Liabilities might be terminated, impaired or adversely affected.
3. COVENANTS OF THE INITIAL INVESTORS, DUTCH NEWCO AND FIN NEWCO III; WAIVER
3.1 Each Initial Investor, Lux Newco, Lux Newco II, Dutch Newco and Fin Newco
III hereby covenants with the Security Agent (on behalf of the
Beneficiaries) that so long as any part of the Liabilities remains unpaid
or undischarged it will not, without the prior written consent of the
Senior Agent (acting on the instructions of all the Finance Parties)
and/or the Junior Agent (acting on the instructions of the Junior
Lenders) save as contemplated under the Facility Documents (i) assign,
pledge or otherwise dispose of the Subordinated Liabilities or any part
thereof; and (ii) purport to set off at any time any amount payable by it
to Lux Newco, Lux Newco II, Dutch Newco, Fin Newco I and/or Fin Newco II
against any amount of the Subordinated Liabilities; however, from the
prohibition of assignments of the Initial Investors Lux Newco, Lux Newco
II shall be excluded (i) any assignment or other transfer effected in any
way whatsoever to Lux Newco or Lux Newco II,, (ii) any assignment or
transfer to the Security Agent provided
-8-
for under the Finance Documents and any assignment pursuant to the
Assignment Agreement and (iii) such assignments if such assignment is to
be made to an affiliated enterprise or company of the Initial Investors
provided that the assignee shall without any restriction become a party
to this Agreement as Initial Investor by delivering to the Security Agent
a duly completed Accession Agreement, it being understood that any such
assignment shall only be made (i) subject to the condition subsequent
that the assignee does not cease to be an affiliated enterprise, or (ii)
to a member of senior management of any member of the Group or of Fin
Newco II.
3.2 Each Initial Investor, Lux Newco, Lux Newco II and Dutch Newco hereby
covenants that if and when any other third party (i) subscribes to new
shares in Fin Newco I and/or Fin Newco II, otherwise acquires shares in
Fin Newco I, Fin Newco II, or makes any equity contribution and/or (ii)
makes available to Fin Newco I, Fin Newco II, Dutch Newco, Lux Newco II
and/or Lux Newco any shareholder loans, then such other third party shall
without any restrictions become a party to this Agreement by delivering
to the Security Agent a duly completed Accession Agreement and each such
acceding party shall be bound by the terms hereof as if it were an
original party hereto.
3.3 The Initial Investors, Lux Newco, Lux Newco II, Dutch Newco, Fin Newco I,
Fin Newco II and Fin Newco III hereby agree with the Beneficiaries that
the Subordinated Liabilities shall be personal liabilities (PERSONLICHE
FORDERUNGEN) and as such shall not be assignable other than as expressly
permitted in this Agreement. This also applies vis-a-vis the
Beneficiaries.
The Initial Investors, Lux Newco, Lux Newco II, Dutch Newco and Fin Newco
II hereby explicitly and irrevocably waive any and all of their rights
against Fin Newco I arising under or in relation to the Subordinated
Liabilities upon the suspensive conditions (AUFSCHIEBENDE BEDINGUNGEN) of
the receipt of a notice by the Initial Investors Lux Newco, Lux Newco II,
Dutch Newco and/or Fin Newco II (as the case may be) from the Security
Agent (acting on behalf of the Beneficiaries) confirming that the shares
in Fin Newco I 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 Fin Newco I 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 Initial Investors, Lux Newco, Lux Newco II, Dutch Newco and/or Fin
Newco II (as the case may be) 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).
4. OTHER SECURITY AND DEALINGS
Fin Newco I, Fin Newco II, Fin Newco III, the Initial Investors, Lux
Newco, Lux Newco II and Dutch Newco hereby agree with the Security Agent
(on behalf of the Beneficiaries) 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
-9-
of the Liabilities whether from Fin Newco I or Fin Newco II, Fin Newco
III, Lux Newco, Lux Newco II, the Initial Investors or Dutch Newco (or
any 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 Fin Newco I
and/or Fin Newco II 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
Fin Newco I and/or Fin Newco II 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 Fin Newco I and/or Fin Newco II or any other
person or any Security in respect of the Liabilities;
(g) the filing for insolvency proceedings in relation to Fin Newco I
and/or Fin Newco II; or
(h) any other fact or circumstance whatsoever whether or not similar
to any of the foregoing which could or might in any way diminish
Fin Newco I 's or Fin Newco II's obligations or the rights of the
Beneficiaries under this Agreement.
5. SYNDICATION
The Initial Investors, Dutch Newco, Lux Newco, Lux Newco II and Fin Newco
III, Fin Newco I and Fin Newco II, the Senior Agent, the Junior Agent,
the Senior Banks, the Junior Lenders and the Security Agent (for and on
behalf of the Beneficiaries) agree that upon an assignment and transfer
of any rights and benefits under the Facility Documents pursuant to
Clause 35 (ASSIGNMENTS AND TRANSFERS) of the Senior Facility Agreement
and/or Clause 30 (ASSIGNMENTS AND TRANSFERS) of the Junior Facility
Agreement (as the case may be) the relevant assignee or transferee shall
become a beneficiary under this Agreement. Any such assignee or
transferee shall accede to this Agreement by delivery of a duly executed
Accession Agreement to the Security Agent and shall be bound to the terms
hereto as if it were an original party hereto.
6. ACKNOWLEDGMENT OF SUBORDINATION
The Trustee hereby agrees that upon enforcement by it of the security
constituted by the Assignment Agreement over certain of the Subordinated
Liabilities its rights in respect of such Subordinated Liabilities (in
particular but without limitation to receive payments thereunder and to
enforce the provisions thereof) shall be limited to the same
-10-
extent as the rights of the other parties to this Agreement in respect to
such Subordinated Liabilities are limited by the terms of this Agreement.
In the event of breach of this Clause 6 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 Clausse 6 (which sum or other
assets shall be deemed not to have reduced the liability of the relevant
obligor) 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 6, 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 wilful default, negligence or fraud.
The Trustee has the right to request the Security Agent to confirm to the
Trustee in writing whether or not the Liabilities have been fully
discharged to the satisfaction of the Security Agent. The Security Agent
shall upon 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.
7. JUDGMENT CURRENCY
If any sum due hereunder or in connection herewith or under any order or
judgment given or made in relation hereto has to be converted from the
currency (the "FIRST CURRENCY") in which the same is payable hereunder or
in connection herewith or under such order or judgment into another
currency (the "SECOND CURRENCY") for the purpose of, INTER ALIA, (i)
making or filing a claim or proof against Fin Newco I or Fin Newco II
(ii) obtaining an order or judgment in any court or other tribunal or
(iii) enforcing any order or judgment given or made in relation hereto,
the person obliged to make such payment shall indemnify and hold harmless
the Senior Agent, Junior Agent, the Senior Banks, the Junior Lenders and
the Security Agent, or as the case may be, each of the persons to whom
such sum is due from and against any loss suffered as a result of any
discrepancy between (a) the rate of exchange used for such purpose to
convert the sum in question from the first currency into the second
currency and (b) the rate or rates of exchange at which such person may
in the ordinary course of business purchase the first currency with the
second currency upon receipt of a sum paid to it in satisfaction, in
whole or in part, of any such order, judgment, claim or proof.
-11-
8. NOTICES, AMENDMENTS, WAIVER
8.1 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.
8.2 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.
8.3 All amendments or supplements to this Agreement or any waiver with regard
to this Agreement (including this Clause 7.3) shall be made in writing.
9. 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.
10. PARTIAL INVALIDITY; WAIVER
10.1 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 shall
replace such illegal, invalid or unenforceable provision by such
provision which comes as close as possible to the purpose of this
Agreement.
10.2 No failure to exercise, nor any delay in exercising, on the part of the
Security Agent, 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.
11. LAW
This Agreement shall be governed by and construed in accordance with
German law.
12. JURISDICTION
12.1 Fin Newco I, Fin Newco II, Fin Newco III, Lux Newco II, Lux Newco, the
Initial Investors, German Newco and Dutch Newco irrevocably agree for the
benefit of the Senior Arranger, the Senior Agent, the Junior Agent, the
Senior Banks, the Junior Lenders and the Security Agent that the place of
jurisdiction for any and all disputes
-12-
arising under in connection with this Agreement shall be Munchen and, for
such purposes, irrevocably submit to the jurisdiction of such courts.
12.2 The submission to the jurisdiction of the courts referred to in Clause
11.1 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.
-13-
SCHEDULE
FORM OF ACCESSION AGREEMENT
This Agreement dated [ ], is supplemental to a subordination agreement (the
"SUBORDINATION AGREEMENT") dated [ ] 2001 between, amongst others, the Security
Agent, the Initial Investors, Dutch Newco, Fin Newco III, Fin Newco I and Fin
Newco II referred to therein.
Words and expressions defined in the Subordination Agreement have the same
meaning when used in this Agreement.
[[NAME OF NEW INITIAL INVESTOR] has agreed to subscribe to new shares in Fin
Newco [I]/[II] and to provide Fin Newco [I]/[II] with funds in the form of
registered share capital) and premium in Fin Newco [I]/[II] of a total aggregate
amount of EUR [ ] or to make an equity contribution in whatever form in Fin
Newco I . Such equity contribution shall fall within the meaning of the "EQUITY
CONTRIBUTION [II]" as defined in the Subordination Agreement.] / [[NAME OF NEW
INITIAL INVESTOR] has entered into or has agreed to or may enter into a
subordinated shareholder loan agreement with Fin Newco [I]/[II] whereby it will
make available loans of a total aggregate amount of EUR [ ] to Fin Newco
[I]/[II] . Such subordinated shareholders loan shall fall within the meaning of
the "SHAREHOLDER LOAN AGREEMENT" as defined in the Subordination Agreement.]
[NAME OF NEW INITIAL INVESTOR/SENIOR BANK/JUNIOR LENDER ETC.] xxxxxx agrees with
each other person who is or who becomes a party to the Subordination Agreement
that with effect on and from the date hereof it will be bound by the
Subordination Agreement as [Initial Investor/Senior Bank/Junior Lender, etc.] as
if it had been an original party to the Subordination Agreement in that
capacity.]
Address for notice of [NAME] for the purposes of Clause 7 (NOTICES) of the
Subordination Agreement is:
[ ].
This Agreement is governed by, and construed in accordance with, the laws of the
Federal Republic of Germany. The provisions of Clauses 10 (LAW) and 11
(JURISDICTION) of the Subordination Agreement shall apply hereto MUTATIS
MUTANDIS as if set out herein, with the exception that where an acceding Initial
Investor is a natural person, not being a merchant in the meaning of Section 1
et. subs. of the German Commercial Code (HANDELSGESETZBUCH), the submission of
the jurisdiction referred to in Clause 11 (JURISDICTION) does not apply.
By [Name of Acceding Party]
Name:
Address:
-14-
THIS AGREEMENT has been executed by the parties the day and year first above
written.
INITIAL INVESTORS
[Xx. Xxx Xxxxxx by power of attorney] [Xx. Xxx Xxxxxx by power of attorney]
................................................. .................................................
On behalf of CIE Management II Limited as On behalf of CIE Management II Limited as
Managing General Partner of Managing General Partner of
BC European Capital VII-1 BC European Capital VII-9
[Xx. Xxx Xxxxxx by power of attorney] [Xx. Xxx Xxxxxx by power of attorney]
................................................. .................................................
On behalf of CIE Management II Limited as On behalf of CIE Management II Limited as
Managing General Partner of Managing General Partner of
BC European Capital VII-2 BC European Capital VII-10
[Xx. Xxx Xxxxxx by power of attorney] [Xx. Xxx Xxxxxx by power of attorney]
................................................. .................................................
On behalf of CIE Management II Limited as On behalf of CIE Management II Limited as
Managing General Partner of Managing General Partner of
BC European Capital VII-3 BC European Capital VII-11
[Xx. Xxx Xxxxxx by power of attorney] [Xx. Xxx Xxxxxx by power of attorney]
................................................. .................................................
On behalf of CIE Management II Limited as On behalf of CIE Management II Limited as
Managing General Partner of Managing General Partner of
BC European Capital VII-4 BC European Capital VII-12
[Xx. Xxx Xxxxxx by power of attorney] [Xx. Xxx Xxxxxx by power of attorney]
................................................. .................................................
On behalf of CIE Management II Limited as On behalf of CIE Management II Limited as
Managing General Partner of Managing General Partner of
BC European Capital VII-5 BC European Capital VII-14
[Xx. Xxx Xxxxxx by power of attorney] [Xx. Xxx Xxxxxx by power of attorney]
................................................. .................................................
-15-
On behalf of CIE Management II Limited as On behalf of CIE Management II Limited as
Managing General Partner of Managing General Partner of
BC European Capital VII-6 BC European Capital VII-15
[Xx. Xxx Xxxxxx by power of attorney] [Xx. Xxx Xxxxxx by power of attorney]
................................................. .................................................
On behalf of CIE Management II Limited as On behalf of CIE Management II Limited as
Managing General Partner of Managing General Partner of
BC European Capital VII-7 BC European Capital VII-16
[Xx. Xxx Xxxxxx by power of attorney]
................................................. .................................................
On behalf of CIE Management II Limited as On behalf of Teabar Capital Corporation, 0000
Xxxxxxxx General Partner of Yonge Street. Suite 500, Toronto,
BC European Capital VII-8 Ontario M2M
(acceded by an Accession Agreement
dated [ ])
................................................. .................................................
On behalf of Southlight Investment Pte Ltd, 168 On behalf of CDPQ Europe Inc.,
Xxxxxxxx Road, 0000, xxxxxx XxXxxx Xxxxxxx,
#00-00, Xxxxxxx Xxxxx, Xxxxxxxxx 000000, Xxxxxxxx of Montreal, Quebec, Canada
Singapore (acceded by an Accession Agreement
(acceded by an Accession Agreement dated [ ])
dated [ ])
................................................. .................................................
On behalf of HVB Offene On behalf of BC European Capital VII Top-Up
Unternehmensbeteiligungs AG, Am Tucherpark 1, PO Box 255, Xxxxxxxx House, St. Julian'x
0, 00000 Xxxxxxx Xxxxxx, Xx. Xxxxx Xxxx, Xxxxxxxx, Channel
(acceded by an Accession Agreement Islands
dated [ ]) (acceded by an Accession Agreement
dated [ ])
................................................. .................................................
On behalf of European Capital VII Top-Up 1, PO Box On behalf of European Capital VII Top-Up 1, PO Box
255, Xxxxxxxx House, St. Julian's Avenue, St. Xxxxx 255, Xxxxxxxx House, St. Julian's Avenue, St. Xxxxx
Port, Guernsey, Channel Islands Port, Guernsey, Channel Islands
(acceded by an Accession Agreement (acceded by an Accession Agreement
dated [ ]) dated [ ])
................................................. .................................................
-16-
On behalf of European Capital VII Top-Up 1, PO Box On behalf of European Capital VII Top-Up 1, PO Box
255, Xxxxxxxx House, St. Julian's Avenue, St. Xxxxx 255, Xxxxxxxx House, St. Julian's Avenue, St. Xxxxx
Port, Guernsey, Channel Islands Port, Guernsey, Channel Islands
(acceded by an Accession Agreement (acceded by an Accession Agreement
dated [ ]) dated [ ])
................................................. .................................................
On behalf of European Capital VII Top-Up 1, PO Box On behalf of Xxxxxx Xxxxxxx,
255, Xxxxxxxx House, St. Julian's Avenue, St. Xxxxx 00 xxx Xxxxxx xx Xxxx, 00000 Xxxxx, Xxxxxx
Xxxx, Xxxxxxxx, Channel Islands (acceded by an Accession Agreement
(acceded by an Accession Agreement dated [ ])
dated [ ])
................................................. .................................................
On behalf of Xxxxxx Xxxxxxxxxx, 000 Xxxxxxxxx On behalf of Xxxxxx-Xxxxxxx Xxxxxxx, 00 xxx
Xxxxx-Xxxxxxx, 00000 Xxxxx, Xxxxxx Xxxxxxxx, 00000 Xxxxx, Xxxxxx
(acceded by an Accession Agreement (acceded by an Accession Agreement
dated [ ]) dated [ ])
................................................. .................................................
On behalf Xxxxxxx Xxxxxxx, 00 xxx Xxxxxx xx Xxxx, On behalf of Blue Capital Equity I GmbH & Co KG
75007 Paris, France (acceded by an Accession Agreement
(acceded by an Accession Agreement dated [ ])
dated [ ])
-17-
FIN NEWCO I
POOL ACQUISITION HELSINKI OY
By: [Xx. Xxxx Xxxxx by power of attorney]
Address: c/o Dittmar & Indrenius
Xxxxxxxxxxxxxxxx 00 X
Xxx-00000 Xxxxxxxx
Tel:
Fax: + 000 (0) 0000000
Attention: Xxxxx-Xxxxx Xxxxxx
FIN NEWCO II
POOL FINANCING HELSINKI OY
By: [Xx. Xxxx Xxxxxx by power of attorney]
Address: c/o Dittmar & Indrenius
Xxxxxxxxxxxxxxxx 00 X
Xxx-00000 Xxxxxxxx
Tel:
Fax: + 000 (0) 0000000
Attention: Xxxxx-Xxxxx Xxxxxx
THE SENIOR AGENT, THE JUNIOR AGENT AND THE SECURITY AGENT
BAYERISCHE HYPO- UND VEREINSBANK AG, LONDON BRANCH
By: [Xxxxx Xxxx by power of attorney / Xxxxx
Xxxxxxxxx by power of attorney]
Address: London Branch
00 Xxxxxxxx
Xxxxxx XX0X 0XX
Tel: 00 00 000 000 0000/8485
Fax: 00 44 207 573 8468
Attention: Xxxx Xxxxxxxxxxxxx/Xxxxxxx Xxxxxxx
-18-
THE SENIOR BANKS
BAYERISCHE HYPO- UND VEREINSBANK AG, LONDON BRANCH
By: [Xxxxx Xxxx by power of attorney / Xxxxx
Xxxxxxxxx by power of attorney]
Address: London Branch
00 Xxxxxxxx
Xxxxxx XX0X 0XX
Tel: 00 00 000 000 0000/8485
Fax: 00 44 207 573 8468
Attention: Xxxx Xxxxxxxxxxxxx/Xxxxxxx Xxxxxxx
MIZUHO FINANCIAL GROUP (THE FUJI BANK, LIMITED) (acceded by an accession
agreement dated 5 October 2001)
By:
Address: London Office
River Plate House
0-00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 00 00 000 000 0000
Fax: 00 44 207 847 2039
Attention: Xxxx Xxxxxx
-19-
NORDEA BANK FINLAND PLC (FORMERLY KNOWN AS XXXXXX BANK PLC) (acceded by an
accession agreement dated 5 October 2001)
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 PLC, NIEDERLASSUNG FRANKFURT
(acceded by an accession agreement dated 5 October 2001)
By:
Address: Xxxxxxxxxxxxxxx 00
D-60323 Frankfurt am Main
Tel: 00 00 00 0000 0000
Fax: 00 49 69 1700 6279
Attention: Xxxxxxxx Xxxxxxx/Xxxxxxx XxXxxxxx
XXXXXXX XXXXX CREDIT PARTNERS, L.P.
(acceded by an accession agreement dated 5 October 2001)
By:
Address: Peterborough Court
000 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 00 00 000 000 0000
Fax: 00 44 207 552 7070
Attention: Xxxxxxx Xxxxxx
-20-
XXXXXXX XXXXX CAPITAL CORPORATION, NEW YORK
(acceded by an accession agreement dated 5 October 2001)
By:
Address: 0 Xxxxx Xxxxxxxxx Xxxxxx - 0xx Floor
New York, NY 10080
Tel: 000 000 000 0000 / 6998
Fax: 000 000 000 1719
Attention: Xxx Xxxx/Xxxx Xxxxxxxx
THE JUNIOR LENDERS
BAYERISCHE HYPO- UND VEREINSBANK AG, LONDON BRANCH
By: [Xxxxx Xxxx by power of attorney / Xxxxx
Xxxxxxxxx by power of attorney]
Address: London Branch
00 Xxxxxxxx
Xxxxxx XX0X 0XX
Tel: 00 00 000 000 0000/8485
Fax: 00 44 207 573 8468
Attention: Xxxx Xxxxxxxxxxxxx/Xxxxxxx Xxxxxxx
XXXXXXX XXXXX CAPITAL CORPORATION, NEW YORK
(acceded by an accession agreement dated 5 October 2001)
By:
Address: 0 Xxxxx Xxxxxxxxx Xxxxxx - 0xx Floor
New York, NY 10080
Tel: 000 000 000 0000 / 6998
Fax: 000 000 000 1719
Attention: Xxx Xxxx/Xxxx Xxxxxxxx
-21-
XXXXXXX XXXXX CREDIT PARTNERS, L.P.
(acceded by an accession agreement dated 5 october 2001)
By:
Address: Peterborough Court
000 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 00 00 000 000 0000
Fax: 00 44 207 552 7070
Attention: Xxxxxxx Xxxxxx
MIZUHO FINANCIAL GROUP (THE FUJI BANK, LIMITED)
(acceded by an accession agreement dated 5 October 2001)
By:
Address: London Office
River Plate House
0-00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 00 00 000 000 0000
Fax: 00 44 207 847 2039
Attention: Xxxx Xxxxxx
DUTCH NEWCO
(acceded by an accession agreement dated 6 June 2001)
By:
Address: Xxxxxxxxxx 000 X
0000 XX Xxxxxxxx
Xxx Xxxxxxxxxxx
Tel:
Fax:
Attention:
-22-
XXX XXXXX XXX
(acceded by an accession agreement dated 14 December 2001)
By:
Address: c/o Sanitec Oyj,
Xxxxxxxxx 00 X
Xxx - 00000 Xxxxxxxx
Tel:
Fax:
Attention:
LUX NEWCO
(acceded by an accession agreement dated _____________ 2002)
By:
Address:
Tel:
Fax:
Attention:
LUX NEWCO II
(acceded by an accession agreement dated _____________ 2002
By:
Address:
Tel:
Fax:
Attention:
-23-
GERMAN NEWCO
(acceded by an accession agreement dated _____________ 2002
By:
Address:
Tel:
Fax:
Attention:
TRUSTEE
(acceded by an accession agreement dated _____________ 2002
By:
Address:
Tel:
Fax:
Attention:
-24-
