Exhibit 10.16
D E E D O F P L E D G E
between
SANITEC INTERNATIONAL S.A.
as Pledgor
and
THE BANK OF NEW YORK
as security agent and trustee
as Pledgee
7 May 2002
WASELIUS & WIST
This DEED OF PLEDGE (the "DEED") is entered into on 7 May 2002 by and between
(i) SANITEC INTERNATIONAL S.A., a public limited liability company (SOCIETE
ANONYME) incorporated under the laws of Luxembourg, registered with the
companies registrar of Luxembourg under number B 82.055, and having its
registered address at 00-00 xxxxxxxxx Xxxxxx Xxxxx, X-0000 Xxxxxxxxxx
(xxx "PLEDGOR"), and
(ii) THE BANK OF NEW YORK, a banking corporation formed under the laws of the
State of New York, and having its registered address at Xxx Xxxxxx
Xxxxxx, Xxxxxx X00 0XX, Xxxxxx Xxxxxxx, as security agent and trustee for
and on behalf of the Holders (as defined in the Indenture) of the Notes
(as defined herein) (the "PLEDGEE").
WITNESSETH:
WHEREAS, the Pledgor holds all of the issued and outstanding capital stock (the
"POOL SHARES") of Pool Acquisition Netherlands B.V. (in liquidation), a private
limited company incorporated under the laws of the Netherlands, with registered
address at Julianaweg 190 A, 1131 DL Volendam, the Netherlands;
WHEREAS, Pool Acquisition Netherlands B.V. (in liquidation), in turn, holds all
of the issued and outstanding capital stock of Sanitec Oy, a private limited
company incorporated under the laws of Finland, registered with the trade
register of Finland under Company ID number 1700086-7, with registered address
at Xxxxxxxxx 00 X, 00000 Xxxxxxxx, Xxxxxxx ("SANITEC");
WHEREAS, the Pledgor has undertaken, subsequent to the date of the Indenture, to
cause Pool Acquisition Netherlands B.V. (in liquidation) transfer to the Pledgor
the Sanitec Shares (as defined herein), resulting in Sanitec becoming a direct,
wholly-owned subsidiary of the Pledgor;
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WHEREAS, the Pledgor and the Pledgee have entered into that certain Indenture
dated as of 7 May 2002 (as amended, restated, supplemented or otherwise modified
from time to time, the "INDENTURE"), pursuant to which the Pledgor has issued 9%
Senior Notes due 2012 (including the Initial Notes issued as of the date of the
Indenture and any Additional Notes or Exchange Notes, the "NOTES");
WHEREAS, the terms of the Indenture require that the Pledgor (i) pledge to the
Pledgee for itself and for the PRO RATA benefit of the Holders, the Intercompany
Loans and the Sanitec Shares (each as defined herein) and (ii) execute and
deliver this Deed in order to secure the payment and performance by the Pledgor
of all of the Obligations (as defined in the Indenture) of the Pledgor under the
Indenture and the Notes (the "SECURED OBLIGATIONS");
WHEREAS, the Sanitec Shares (as defined herein) are subject to a first priority
pledge by virtue of the Pledge Agreement dated 31 March 2002 (as from time to
time be amended, restated, supplemented, otherwise modified, replaced,
transferred or assigned, the "PLEDGE AGREEMENT I") between Pool Acquisition
Netherlands B.V. (in liquidation) as pledgor and Bayerische Hypo- und
Vereinsbank AG, London Branch ("HYPOVEREINSBANK") as security agent for certain
lenders under the Credit Agreement (as defined in the Indenture);
WHEREAS, the Pledgee has agreed that the pledge of the Sanitec Shares hereunder
is subject to the first priority pledge under Share Pledge I (as defined
herein);
WHEREAS, the Pledgor, pursuant to the Senior Notes Loan Subordination Agreement
dated 14 December 2001, as amended and restated, and the Subordination Agreement
dated 26 April 2001, as amended and restated (collectively, the "SUBORDINATION
AGREEMENTS"), has agreed to subordinate its receivables from Sanitec to payments
due by Sanitec under the Credit Agreement;
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WHEREAS, until the perfection of the pledge to the Pledgee of the Sanitec Shares
(as defined herein), the Pool Shares will be pledged to the Pledgee pursuant to
the Deed of Pledge of Registered Shares in Pool Acquisition Netherlands B.V. (in
liquidation) dated 2 May 2002; and
WHEREAS, the perfection of the pledge of the Sanitec Shares (as defined herein)
will take place upon the transfer of the Sanitec Shares (as defined herein) to
the Pledgor,
NOW, THEREFORE, in consideration of the premises, the Pledgor hereby agrees with
the Pledgee (together the "PARTIES," and each of the Parties severally, a
"PARTY") for the benefit of the Pledgee and the Holders as follows.
1 CERTAIN DEFINITIONS
1.1 As referred to in this Deed, the following terms shall have the
following meanings (the singular, where appropriate, including the
plural, and vice versa). Capitalised terms used herein and not
otherwise defined shall have the meanings assigned to such terms in the
Indenture:
INTERCOMPANY LOANS shall collectively mean the loans under the
following agreements:
(i) the Senior Notes Loan Agreement, a copy of which is attached
hereto as Exhibit 1, effective as of 7 May 2002, as amended,
modified, renewed, refunded, replaced or refinanced from time
to time, between the Pledgor and Sanitec pursuant to which the
Pledgor has loaned the gross proceeds from the issue of the
Notes to Sanitec;
(ii) the PIK On-Loan Agreement II, a copy of which is attached
hereto as Exhibit 2, effective as of 7 May 2002, as amended,
modified, renewed,
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refunded, replaced or refinanced from time to time, originally
entered into between Pool Financing Helsinki Oy, a company
organized under the laws of Finland and registered with the
Finnish trade register under company ID 1700087-5 and Sanitec,
pursuant to which the proceeds from a certain PIK On-Loan I
have been loaned to Sanitec. As of the date of this Deed, the
Pledgor will be the lender under PIK On-Loan Agreement II; and
(iii) The Finnish Shareholder Loan Facility Agreement, a copy of
which is attached hereto as Exhibit 3, effective as of 7 May
2002, as amended, modified, renewed, refunded, replaced or
refinanced from time to time, between the Pledgor and Sanitec
pursuant to which the Pledgor has loaned the proceeds from a
certain Luxembourg Shareholder Loan Facility Agreement to
Sanitec,
and shall include:
(iv) any instruments representing the Intercompany Loans, and all
products and proceeds of the Intercompany Loans, including,
without limitation, all interest, principal and premium
payments, and all instruments and other property from time to
time received, receivable or otherwise distributed in respect
of, in exchange for or in replacement of the Intercompany
Loans or any of the foregoing.
RELEVANT INDEBTEDNESS means Indebtedness (as defined in the Indenture)
under the Credit Agreement or any Indebtedness under any Credit
Facility incurred pursuant to clause (1) or (2) of the second paragraph
of Section 4.10 of the Indenture.
SANITEC SHARES shall mean, the shares of Sanitec representing all of
the issued and outstanding capital stock of Sanitec as specified in
Exhibit 4 hereto and shall include:
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(i) all products and proceeds from time to time received,
receivable or otherwise distributed in respect of or in
exchange for any or all of the Sanitec Shares, including,
without limitation, dividends and return of capital; and
(ii) all additional shares of Sanitec, all securities convertible
into shares of Sanitec or replacing such shares, and all
options, warrants, subscription rights or other rights to
purchase capital stock of, or other Equity Interests in,
Sanitec from time to time acquired by the Pledgor in any
manner, and all products and proceeds of any of the foregoing,
including, without limitation, all dividends, options,
warrants, subscription rights and other rights to purchase
capital stock of, or other Equity Interests in, Sanitec, and
other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in
exchange for any or all of the foregoing (the "ADDITIONAL
SANITEC SHARES").
SECURITY AGENT shall mean HypoVereinsbank, its successor or assignee,
or, as applicable, another security agent in respect of Share Pledge I
(as defined herein).
SHARE PLEDGE I shall mean the pledge under the Pledge Agreement I or,
as applicable, any other pledge of the Sanitec Shares that secures
Relevant Indebtedness (as defined herein).
2 PLEDGE
2.1 The Pledgor hereby grants to the Pledgee for its benefit and for the
PRO RATA benefit of the Holders
a) a first priority pledge in all of the Pledgor's rights and
receivables under the Intercompany Loans; and
b) a pledge of the Sanitec Shares
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(the assets specified in (a) and (b) collectively, the
"PLEDGED ASSETS" and the pledges specified in (a) and (b)
collectively, the "PLEDGE")
as security for the payment and performance when due (whether at stated
maturity, by acceleration or otherwise) of the Secured Obligations.
2.2 Subject to the terms and conditions of the Indenture, the pledge of the
Sanitec Shares hereunder shall be subject and second ranking to the
Share Pledge I, and the pledge of Sanitec Shares under this Deed shall
in each case permit perfection of the Share Pledge I, PROVIDED that,
subsequent to any such perfection, the pledge of the Sanitec Shares
under this Deed shall have the same priority as, and be on terms no
less favourable to the Holders than, the priority contemplated herein
had the Pledge Agreement I still been in effect. It is expressly
acknowledged that the pledge under this Deed shall, without any
separate consent by the Pledgee, remain second ranking in the event
that Pledge Agreement I is cancelled and replaced by a new pledge
agreement in connection with any refinancing of any Relevant
Indebtedness, and the Share Pledge I, granted in connection with any
refinancing of the Relevant Indebtedness will rank before the pledge of
Sanitec Shares under this Deed.
2.3 A certificate submitted by the Pledgee to the Pledgor as to the amount
due in respect of the Secured Obligations or any part thereof shall
(save for manifest error or fraud) be conclusive and binding on the
Pledgor.
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3 PERFECTION OF PLEDGE
3.1 For the purpose of perfecting the pledge of the Pledgor's rights and
receivables under the Intercompany Loans, the Pledgor undertakes as of
the date hereof
(i) to cause that a notification substantially in the form as set
out in Exhibit 5 hereto (the "INTERCOMPANY LOANS PLEDGE
NOTICE") of the pledge of the Intercompany Loans is delivered
to Sanitec in its capacity of debtor under the Intercompany
Loans; and
(ii) to cause that the receipt of the Intercompany Loans Pledge
Notice is, upon receipt thereof, in writing acknowledged by
Sanitec, and that a copy of the Intercompany Loans Pledge
Notice, containing Sanitec's written acknowledgement of
receipt thereof is forthwith delivered to the Pledgee.
3.2 For the purpose of perfecting the pledge of the Sanitec Shares, the
Pledgor undertakes, as of the date of the transfer of title to the
Sanitec Shares from Pool Acquisition Netherlands B.V. (in liquidation)
to the Pledgor (in no event later than upon completion of the
liquidation of Pool Acquisition Netherlands B.V.),
(i) to notify the Pledgee of the transfer of title to the Sanitec
Shares to the Pledgor, in a certificate signed by two (2)
directors of the Pledgor;
(ii) to cause that a notification substantially in the form as set
out in Exhibit 6 hereto (the "SANITEC SHARES PLEDGE NOTICE")
concerning the pledge of the Sanitec Shares, created by this
Deed, is delivered to Sanitec with a copy to the Security
Agent in its capacity of first priority pledgee in respect of
the Sanitec Shares); and
(iii) to cause that the receipt of the Sanitec Shares Pledge Notice,
upon receipt thereof, is in writing acknowledged by Sanitec
and the Security Agent, and that a
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copy of the Sanitec Shares Pledge Notice containing written
acknowledgements by Sanitec and the Security Agent of receipt
thereof, is forthwith delivered to the Pledgee.
3.3 For the purpose of perfecting the pledge of Additional Sanitec Shares,
the Pledgor shall each time upon grant or receipt of Additional Sanitec
Shares, promptly take the measures specified in Sub-Sections 3.2. (ii)
and 3.2. (iii).
4 REPRESENTATIONS AND WARRANTIES
4.1 The Pledgor herewith represents and warrants to the Pledgee that:
a) the Pledgor is a public limited liability company duly
organised and validly existing under the laws of Luxembourg;
b) the Pledgor is the legal owner of the rights and receivables
under the Intercompany Loans and will, at the latest upon
liquidation of Pool Acquisition Netherlands B.V. (in
liquidation), become the sole lawful owner of the Sanitec
Shares;
c) Sanitec has not issued share certificates or interim
certificates with respect to the Sanitec Shares, or other
certificates evidencing Equity Interests in Sanitec;
d) Sanitec has not received any notification of pledge concerning
the Intercompany Loans or the Sanitec Shares, other than the
notification delivered in connection with the perfection of
the pledge of the Sanitec Shares under Pledge Agreement I;
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e) the Pledgor has full corporate power and legal right to create
the Pledge, to execute and deliver this Deed and to perform
its obligations hereunder, and the execution and delivery by
the Pledgor of this Deed have been duly authorised by way of
all necessary corporate and other action on the part of the
Pledgor, and Pledgor has the right to pledge the Pledged
Assets as provided in this Deed;
f) the Pledgor has legal right to submit to the jurisdiction of
the courts of Finland, and such submission is legal, valid and
binding on the Pledgor;
g) the Sanitec Shares have been duly authorised and validly
issued and are fully paid and non-assessable;
h) the Sanitec Shares constitute all of the authorised, issued
and outstanding Equity Interests of Sanitec, and there are no
other instruments or certificates, claims or encumbrances
evidencing or representing any Equity Interest in Sanitec;
i) each Intercompany Loan has been duly authorised and executed
by each of Sanitec and the Pledgor and constitutes a legal,
valid and binding obligation of each of Sanitec and the
Pledgor, enforceable against each of Sanitec and the Pledgor
in accordance with its terms;
j) the Intercompany Loans constitute all of the loans made to
Sanitec by the Pledgor;
k) the Pledged Assets are free and clear of any pledge, security
interest, charge, lien claim or encumbrances of any Person
except for the pledges created by this Deed and Pledge
Agreement I, and subject to the Subordination Agreements;
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l) the Pledge constitutes the legal, valid and binding
obligations of the Pledgor, enforceable in accordance with
their terms, and the execution, delivery and performance by
the Pledgor of this Deed does not violate any applicable law,
regulation, decree, order, permit, Articles of Association,
corporate documents or contractual or other restriction
existing and binding on either the Pledged Assets, the Pledgor
or on any of its material properties;
m) no consent or authorisation of, filing with or other act by
any administrative or government authority or any other Person
(including, but not limited to, any shareholder or creditor of
the Pledgor), is required in connection with the creation,
execution, delivery, performance, validity or enforceability
of this Deed and the Pledge, other than the Intercompany Loans
Pledge Notice and Sanitec Shares Pledge Notice referred to in
Section 3 above;
n) no action, suit or proceeding is pending or, to the best
knowledge of the Pledgor, threatened against the Pledgor
before any court, board of arbitration or administrative
agency, which would or could result in any material adverse
effect on the Pledgor's ability to perform its obligations
under this Deed or the Pledge; in particular, no proceedings
disputing the Pledgor's title to any of the Pledged Assets, or
the solvency of the Pledgor have been initiated or threatened;
and
o) all information set forth herein relating to the Pledged
Assets is accurate and complete in all respects.
5 COVENANTS
5.1 For as long as any (or any part) of the Secured Obligations is
outstanding, the Pledgor agrees that, without the Pledgee's prior
written approval (which approval may only be
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given by the Pledgee provided that, in the opinion of the Pledgee, such
approval would not be materially prejudicial to the interests of the
Holders of the Notes), neither the Pledgor nor Pool Acquisition
Netherlands B.V. (in liquidation) will (i) sell, assign, transfer,
exchange or otherwise dispose of, or grant any option with respect to,
the Pledged Assets except as permitted by this Deed, or (ii) create,
incur or permit to exist any pledge, security interest, charge, lien
and encumbrance in respect of the Pledged Assets, except for the Pledge
set out in this Deed and the Share Pledge I, and subject to the
Subordination Agreements.
5.2 Upon the termination of Share Pledge I without enforcement of the
pledge thereunder, the Sanitec Shares and any documents evidencing the
same shall be transferred and handed over to, or to the order of, the
Pledgee, or its nominee or custodian, as instructed by the Pledgee.
5.3 The Pledgor shall at all times cause the Pledge to constitute a valid
perfected pledge and security interest in the Pledged Assets,
enforceable as such against all creditors of the Pledgor and (except as
otherwise specifically provided herein) any Persons purporting to
purchase any Pledged Assets from Pledgor.
5.4 The Pledgor agrees that it (at its own expense) will defend the right,
title and interest of the Pledgee in the Pledged Assets against any
claims and demands of any Person whomsoever.
5.5 The Pledgor shall, promptly upon request by the Pledgee, execute and
deliver or cause to be executed and delivered, or use its best efforts
to procure, any documents, all in form and substance satisfactory to
the Pledgee, deliver any instruments to the Pledgee and take any other
actions that are necessary or, in the opinion of the Pledgee, desirable
to perfect, continue the perfection of, or protect the first or second,
as the case may be, priority of the Pledgee's security interest in, the
Pledged Assets, to protect the Pledged Assets against the rights,
claims, or interests of third parties, to
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enable the Pledgee to exercise or enforce its rights and remedies
hereunder, or otherwise to effect the purposes of this Deed. The
Pledgor shall pay all costs incurred in connection with any of the
foregoing.
5.6 The Pledgor agrees that it will cause either the completion of the
liquidation of Pool Acquisition Netherlands B.V. (in liquidation) or
the distribution of the Sanitec Shares to the Pledgor on or prior to 31
December 2002.
5.7 The Pledgor shall cause that Sanitec will not issue share certificates,
interim certificates or other certificates evidencing the Sanitec
Shares or any Equity Interest in Sanitec, without the Pledgee's prior
written consent.
5.8 The Pledgor shall comply with Article X of the Indenture, including
providing the Pledgee with any opinions, certificates or any other
information required thereunder.
6 EVENT OF DEFAULT AND ENFORCEMENT
6.1 The Pledgor agrees, upon the occurrence of an Event of Default (as
defined in the Indenture), to notify the Pledgee, Sanitec and the
Security Agent thereof.
6.2 All payments that the Pledgor is entitled to receive under the
Intercompany Loans shall be made to or to the order of the Pledgee. The
Pledgor agrees to cause Sanitec to notify the Pledgee of each payment
to be made under the Intercompany Loans in accordance with the
Intercompany Loans Pledge Notice. The Pledgor shall, seven (7) days
prior to each payment under the Intercompany Loans, confirm to the
Pledgee that no Event of Default has occurred.
6.3 Subject to the Subordination Agreements and Section 6.2 above, upon the
occurrence of an Event of Default and at any time thereafter, the
Pledgee shall, by notice of such Event of Default to the Pledgor and
Security Agent, in addition to any rights conferred
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on the Pledgee pursuant to Finnish law, be entitled, without observance
of or adherence to any Finnish law or other statutory rules relating to
the enforcement of pledge or liquidation of pledge objects, and without
the consent of the Pledgor or judgement or decision of any court, by
public or private sale or by other procedure as the Pledgee in its sole
discretion shall deem fit, to take possession of and to liquidate and
convert into ready money the Pledged Assets, in which case all of the
Secured Obligations (notwithstanding any provision in any document to
the contrary) shall be considered immediately due and payable (unless
already earlier due and payable pursuant to the provisions of this Deed
or any other document) without further notice, protest, or demand.
6.4 Notwithstanding anything to the contrary in Section 6.3 above, in the
event of an enforcement of the first priority pledge by the Security
Agent under the Share Pledge I, the Pledgee shall be entitled to
receive any and all proceeds resulting from the sale of the Sanitec
Shares pursuant to such enforcement, which are in excess of the amounts
owing under Relevant Indebtedness.
6.5 In the event that the Pledgee receives any payments, proceeds or
amounts under Sections 6.2, 6.3 or 6.4 above, the Pledgee shall apply
the payments, proceeds or amounts so obtained
- FIRST, in payment or satisfaction of all the Liabilities
(as defined herein) then due and unpaid; and
- SECOND, in or towards satisfaction of all of the Secured
Obligations then outstanding in accordance with the terms
of the Indenture.
Any excess proceeds shall be accounted for by the Pledgee and paid over
to or to the order of the Pledgor or to its assignee.
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6.6 To the extent reasonably practicable before and after the exercise of
any right under Section 6.3 above, the Pledgee agrees to give notice of
any such intended or actual action to the Pledgor.
6.7 The rights and remedies agreed herein in favour of the Pledgee shall
operate as a variation and extension of the Pledgee's statutory power
of liquidation and sale of the Pledge as set out in Chapter 10, Section
2 of the Finnish Commercial Code and of any other rights and remedies
provided by law.
7 PAYMENTS DERIVED FROM THE PLEDGED ASSETS
7.1 The Pledgee shall comply with Section 10.07 of the Indenture with
respect to the receipt of any funds pursuant to the Pledge or otherwise
under this Deed.
8 INDEMNITY
8.1 The Pledgor shall pay or discharge all costs, expenses and liabilities
incurred by the Pledgee and any of its Appointees (as defined herein)
in relation to the preparation and execution of, the exercise of their
powers and the performance of their duties under, and in any other
manner in relation to, this Deed and the Pledge including, but not
limited to, liabilities incurred in connection with the preservation
and enforcement of the Pledgee's rights under this Deed and the Pledge
and the perfection and release of the Pledge, legal fees, travelling
expenses and any stamp, registration and other taxes or duties paid or
payable by the Pledgee in connection with any action taken or
contemplated by or on behalf of the Pledgee for enforcing, or resolving
any doubt concerning or for any other purpose in relation to, this Deed
or the Pledge (the "LIABILITIES"). All such amounts shall be payable by
the Pledgor upon receipt of written demand therefor from the Pledgee.
8.2 The Pledgee shall not be liable for any acts or omissions under this
Deed or the Pledge, or for any liabilities incurred by a Party or any
Holder by reason of the exercise or non-exercise of its authorities,
powers, rights, obligations or discretions
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under this Deed or the Pledge, except for any liability arising out of
the negligence, wilful default, fraud or, as regards indemnity
VIS-A-VIS the Holders, breach of trust by the Pledgee.
9 TAXES
9.1 The Pledgor will pay all present and future registration fees, stamp
duties and any other duty, fee or tax in relation to this Deed and the
Pledge, and hold harmless and indemnify the Pledgee against any loss or
liability incurred by the Pledgee as a consequence of the Pledgor's
failure or delay in the payment thereof.
10 APPOINTMENT
10.1 The Pledgor hereby irrevocably appoints the Pledgee to be its attorney,
on its behalf and in its name, to execute and to do any assurances,
acts and things which the Pledgor ought to execute and do under the
covenants, terms and conditions contained in this Deed, and generally
on its behalf and in its name to exercise all or any of the powers,
authorities and discretions conferred by or pursuant to this Deed or
otherwise on the Pledgee. The Pledgor hereby ratifies and confirms and
agrees to ratify and confirm whatever such attorney does or purports to
do in the exercise or purported exercise of all or any of the powers,
authorities and discretions referred to in this Section 10.
11 NOTICES
11.1 Any notices in connection with this Deed shall be given in writing to
the address specified below of each of the Parties, and shall be deemed
to be received when actually received by the relevant recipient
thereof.
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For the Pledgor: Sanitec International S.A.
Attention: Xx. Xxxxxx Xxxxx
00-00 xxxxxxxxx Xxxxxx Xxxxx
X-0000 Xxxxxxxxxx
RC Luxembourg 13 82 054
Facsimile Nr.: ____________________
For the Pledgee: The Bank of New York
Attention: Corporate Trust Administration
Xxx Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Xxxxxxx
Facsimile Nr. x00 (0) 000 000 0000
12 ENTRY INTO FORCE AND TERMINATION
12.1 This Deed shall enter into force immediately when duly signed, executed
and delivered by the Parties.
12.2 This Deed shall terminate and expire when all of the Secured
Obligations and the Liabilities have been fully paid, settled and
discharged in accordance with this Deed and the Indenture.
12.3 Subject to Article X of the Indenture, the Pledge shall not be deemed
satisfied and shall not be released or discharged by any payment,
performance, discharge or satisfaction of any part of the Secured
Obligations and shall extend to cover any sum or sums of money or other
liabilities and obligations which for the time being constitute the
balance of the Secured Obligations until all of the Secured Obligations
shall have been paid, performed, fulfilled or otherwise discharged in
full in accordance with the terms of the Indenture.
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12.4 If the Pledgee considers that in respect of an amount paid by the
Pledgor under the Secured Obligations, there exists a reasonable risk
that such payment will be avoided or otherwise set aside in the
liquidation or administration of the Pledgor, or recovered to the
estate of the Pledgor under applicable law or otherwise, then that
amount shall not be considered to have been paid, settled and
discharged to the Pledgee for the purposes of this Deed.
12.5 Nothing in this Deed shall be construed to prohibit the repayment of
any or all of the Intercompany Loans if, and to the extent, permitted
by the Indenture and the Subordination Agreements.
12.6 Notwithstanding anything to the contrary in Section 12.3 above, the
pledge of the Intercompany Loans shall be released upon full repayment
and discharge of the Intercompany Loans, as permitted by the Indenture
and the Subordination Agreements.
12.7 Upon the termination of this Deed and the Pledge in accordance with
this Deed and the Indenture, and upon the written request of the
Pledgor and subject to the Pledgee having been indemnified for any
Liabilities, the Pledgee shall
(i) promptly execute and deliver to the Pledgor such documents as
the Pledgor may reasonably request to evidence the termination
of this Deed or the release of the Pledged Assets; and
(ii) promptly deliver or cause to be delivered to the Pledgor all
property of the Pledgor then held by the Pledgee, or an
Appointee or nominee of the Pledgee pursuant to this Deed and
the Pledge.
13 BENEFITS
13.1 This Deed and the Pledge shall inure to the benefit of the Pledgee, the
Holders and their respective successors, transferees and assignees.
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13.2 Nothing in this Deed, express or implied, shall give to any Person,
other than the Parties hereto and their successors hereunder, and the
Holders, any benefit or any legal or equitable right, remedy or claim
under this Deed and the Pledge.
13.3 The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently, and are not exclusive of any rights
or remedies provided by law.
13.4 The rights of the Pledgee and the Holders hereunder are cumulative with
all of their respective rights under the Indenture.
13.5 The Holders shall not enforce this Deed or the Pledge other than as
provided in the Indenture.
14 GOVERNING LAW AND JURISDICTION
14.1 This Deed shall be construed in accordance with and shall be governed
by Finnish law.
14.2 The courts of Finland shall have jurisdiction in respect of any matters
or disputes arising in connection with this Deed and the Pledge,
including the validity thereof. The District Court of Helsinki shall be
the court of first instance.
15 ENTIRE AGREEMENT
15.1 This Deed contains the entire understanding between the Parties
concerning the subject-matter hereof, and supersedes any agreement
between the Parties, which is in contradiction with this Deed.
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16 ASSIGNMENT
16.1 This Deed or any rights or obligations thereunder may not be assigned
by either Party without the prior written consent of the other Party.
The Pledgee may, however, assign this Deed to a successor acting as
trustee and collateral agent under the Indenture without the consent of
the Pledgor.
16.2 Notwithstanding the above, the Pledgee may
(i) delegate to any Person all or any of its rights or powers
under this Deed on such terms (including the power to
subdelegate) as the Pledgee sees fit; and
(ii) employ agents, managers, employees, advisers and others on
such terms as the Pledgee sees fit,
(i) and (ii), collectively, the "APPOINTEES",
and, provided reasonable care is used in the selection of such
Appointees, the Pledgee shall not in any way be responsible for any
liability incurred by reason of any misconduct or default on the part
of any Appointee.
17 INVALIDITY
17.1 Should any provision of this Deed be or become invalid, void or
unenforceable, all the remaining provisions and terms hereof shall
remain in full force and effect and shall in no way be invalidated,
impaired or affected thereby. The Parties agree that they by way of
negotiations in good faith shall replace the invalid, void or
unenforceable provision with a valid and enforceable provision which,
to the fullest extent possible, reflects the original intention of the
Parties set out in the relevant provision.
20
18 RESCISSION
18.1 To the fullest extent permitted by Finnish law, the Pledgor hereby
waives its rights to rescind this Deed and the Pledge, or to avoid any
legal or administrative action in connection with this Deed and the
Pledge.
19 SURVIVAL
19.1 All representations, warranties and covenants of the Pledgor contained
herein shall survive the execution and delivery of this Deed, and shall
terminate only upon the full and final payment, performance and
discharge by the Pledgor of the Secured Obligations and the
Liabilities.
20 WAIVERS
20.1 Subject to the terms of the Indenture, a waiver of any provision of
this Deed shall be effective only if made in writing.
20.2 Neither the Pledgee nor any Holder shall be deemed, by any act, delay,
indulgence, omission or otherwise, to have waived any right or remedy
hereunder or to have acquiesced in any Event of Default or in any
breach of any of the terms and conditions hereof.
20.3 Failure of the Pledgee or any Holder to exercise, or delay in
exercising, any right, power or privilege hereunder shall not operate
as a waiver thereof. No single or partial exercise of any right, power
or privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
20.4 A waiver by the Pledgee or any Holder of any right or remedy hereunder
on any one occasion shall not be construed as a bar to any right or
remedy that the Pledgee or such Holder would otherwise have on any
future occasion.
21
21 AMENDMENTS
21.1 Subject to the provisions of the Indenture, any amendment of any
provision of this Deed shall be in writing and duly signed by both
Parties hereto.
22 COUNTERPARTS
22.1 This Deed is executed in two (2) counterparts, each of which shall be
deemed an original.
(Signature page follows.)
22
IN WITNESS WHEREOF, the Parties have executed this Deed on the date first above
written.
SANITEC INTERNATIONAL S.A.
as Pledgor
by by
/s/ Xxxx Xxxxx /s/ Xxxxxxxx Xxxxxxx
----------------------- ---------------------
Xxxx Xxxxx, Director Xxxxxxxx Xxxxxxx
THE BANK OF NEW YORK
as security agent and trustee, as Pledgee
by by
/s/ Xxxx Xxxxxxx
---------------------- ---------------------
Xxxx Xxxxxxx, AVP
23
EXHIBIT 1
---------
THE SENIOR NOTES LOAN AGREEMENT
-------------------------------
24
EXHIBIT 2
---------
THE PIK ON-LOAN AGREEMENT II
----------------------------
25
EXHIBIT 3
---------
THE FINNISH SHAREHOLDER LOAN FACILITY AGREEMENT
-----------------------------------------------
26
EXHIBIT 4
---------
COMPANY DESCRIPTION AND NUMBER OF SHARES PERCENTAGE OF SHARE
CAPITAL
Sanitec Oy, 30,000,000 shares (Nr. 1 - 100 %
Company ID 1700086-7 30,000,000), representing all of
the issued and outstanding
capital stock of Sanitec Oy.
27
EXHIBIT 5
---------
NOTIFICATION CONCERNING THE PLEDGE OF INTERCOMPANY LOANS
To: Sanitec Oy
The Board of Directors
Xxxxxxxxx 00 X
XXX-00000 Xxxxxxxx
Xxxxxxx
Dear Sirs,
By way of a Deed of Pledge dated 7 May 2002, Sanitec International S.A. (the
"PLEDGOR") has pledged to The Bank of New York, as security agent and trustee
for the holders of the 9% Senior Notes due 2012, initially issued by the Pledgor
on 7 May 2002 (respectively, the "TRUSTEE" and the "NOTES"), all of the
Pledgor's receivables under the loans under the following agreements:
(i) the Senior Notes Loan Agreement, a copy of which is attached hereto as
Appendix 1, effective as of 7 May 2002, as amended, modified, renewed,
refunded, replaced or refinanced from time to time, between the Pledgor
and Sanitec Oy ("SANITEC") pursuant to which the Pledgor has loaned the
gross proceeds from the issue of the Notes to Sanitec;
(ii) the PIK On-Loan Agreement II, a copy of which is attached hereto as
Appendix 2, effective as of 7 May 2002, as amended, modified, renewed,
refunded, replaced or refinanced from time to time, originally entered
into between Pool Financing Helsinki Oy, a company organized under the
laws of Finland and registered with the Finnish trade register under
company ID 1700087-5 and Sanitec, pursuant to which the the proceeds
from a certain PIK On-Loan I have been loaned to Sanitec. As of the
date of this Deed, the Pledgor will be the lender under PIK On-Loan
Agreement II; and
(iii) the Finnish Shareholder Loan Facility Agreement, a copy of which is
attached hereto as Appendix 3, effective as of 7 May 2002, as amended,
modified, renewed, refunded, replaced or refinanced from time to time,
between the Pledgor and Sanitec pursuant to which the Pledgor has
loaned the proceeds from a certain Luxembourg Shareholder Loan Facility
Agreement to Sanitec,
(collectively, the "INTERCOMPANY LOANS"); and
28
(iv) any the instruments representing the Intercompany Loans, and all
products and proceeds of the Intercompany Loans, including, without
limitation, all interest, principal and premium payments, and all
instruments and other property from time to time received, receivable
or otherwise distributed in respect of, in exchange for or in
replacement of the Intercompany Loans or any of the foregoing.
The Pledgor and the Trustee hereby notify Sanitec in its capacity of debtor
under the Intercompany Loans of the above pledge.
All payments under (i) - (iv) above shall be made to or to the order of the
Trustee. No payment may be made to another person with discharging effect.
Sanitec shall (i) notify the Trustee of each payment to be made under (i) - (iv)
above not later than fourteen (14) days before the due date of payment and (ii)
request the Trustee to give payment instructions to Sanitec in respect of such
payment. Any notifications from Sanitec to the Trustee shall be addressed as set
out in the Deed of Pledge.
(Signature page follows.)
29
In the City of _______________ on 7 May 2002
SANITEC INTERNATIONAL S.A.
as Pledgor
by by
_____________________ _____________________
THE BANK OF NEW YORK
as Trustee
by by
_____________________ _____________________
30
We hereby acknowledge the receipt of and agree with this notification and
confirm that we have not received any prior notification of the transfer or
pledge of the Intercompany Loans.
SANITEC OY
by by
_____________________ ____________________
31
EXHIBIT 6
---------
NOTIFICATION CONCERNING THE PLEDGE OF THE SHARES OF SANITEC OY
To: Sanitec Oy
The Board of Directors
Xxxxxxxxx 00 X
XXX-00000 Xxxxxxxx
Xxxxxxx
Copy to: [INSERT NAME OF THE SECURITY AGENT]
[INSERT ADDRESS OF THE SECURITY AGENT]
Dear Sirs,
By way of a Deed of Pledge dated 7 May 2002, Sanitec International S.A. (the
"PLEDGOR") has pledged to The Bank of New York, as security agent and trustee
for the holders of the 9% Senior Notes due 2012, initially issued by Sanitec
International S.A. on 7 May 2002 (respectively, the "TRUSTEE" and the "NOTES"),
the following shares in Sanitec Oy ("SANITEC"):
COMPANY DESCRIPTION AND NUMBER OF SHARES PERCENTAGE OF SHARE
CAPITAL
Sanitec Oy, 30,000,000 shares (Nr. 1 - 30,000,000), 100 %
Company ID 1700086-7 representing all of the issued and outstanding
capital stock of Sanitec.
and,
(i) all products and proceeds from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
shares, including, without limitation, dividends; and
(ii) all additional shares of Sanitec, all securities convertible into shares
of Sanitec or replacing such shares, and all options, warrants,
subscription rights or other rights to purchase capital stock of, or
other equity interests in, Sanitec from time to time acquired by the
Pledgor in any manner, and all products and proceeds of any of the
foregoing,
32
including, without limitation, all dividends, options, warrants,
subscription rights and other rights to purchase capital stock of, or
other equity interests in, Sanitec, and other property or proceeds from
time to time received, receivable or otherwise distributed in respect of
or in exchange for any or all of the foregoing
(collectively, the "SANITEC SHARES").
The Pledgor and the Trustee hereby notify Sanitec of the above pledge of the
Sanitec Shares.
The above pledge of Sanitec Shares is subject to the pledge under [INSERT NAME
OF AGREEMENT GOVERNING SHARE PLEDGE I] (the "SHARE PLEDGE I"). With a copy of
this notification, [INSERT NAME THE SECURITY AGENT] (the "SECURITY AGENT"), in
its capacity of first priority pledgee of the Sanitec Shares and security agent
for certain lenders under Share Pledge I is herewith notified of its duty of
care VIS-A-VIS the Trustee as security agent and trustee for the holders of the
Notes.
Upon liquidation of the Sanitec Shares for the purposes of enforcement of the
pledge under Share Pledge I, all proceeds in excess of those then owing under
the Share Pledge I shall be paid to or to the order of the Trustee, and no
payment may be made to any other person with discharging effect.
Upon the termination of the Share Pledge I without enforcement of the pledge
thereunder, the Sanitec Shares and any documents evidencing the same shall be
transferred and handed over to or the order of the Trustee or its nominee or
custodian, as instructed by the Trustee, and no transfer and hand-over of the
Sanitec Shares may be made to any other person with discharging effect.
In the event Sanitec issues share certificates, interim certificates or other
certificates evidencing any equity interest in Sanitec, such certificates shall
be delivered to the Trustee or, should the pledge under the Share Pledge I be
outstanding, to the Security Agent, with notification thereof to the Trustee.
(Signature page follows.)
33
In the City of [INSERT PLACE] on [INSERT DATE]
SANITEC INTERNATIONAL S.A.
as Pledgor
by by
_____________________ ____________________
THE BANK OF NEW YORK
as Trustee
by by
_____________________ ____________________
34
We hereby acknowledge the receipt of and agree with this notification, and
confirm that (i) the Sanitec Shares are registered in our share register and
shareholders' register in the name of the Pledgor, (ii) no share certificates or
interim certificates have been issued with regard to the Sanitec Shares and
(iii) we have not received any prior notification of the transfer or pledge of
the Sanitec Shares, except for the pledge of the Sanitec Shares under the Share
Pledge I.
SANITEC OY
by by
_____________________ _____________________
We hereby acknowledge the receipt of and agree with this notification.
[THE SECURITY AGENT - INSERT NAME]
by by
_____________________ _____________________
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