Exhibit 10.11
Execution Version
PIK ON-LOAN TRANSFER AND ASSUMPTION AGREEMENT
(the "AGREEMENT")
between
1. Pool Sub-Financing Helsinki Oy, Xxxxxxxxx 00X, 00000 Xxxxxxxx ("FIN NEWCO
III"),
2. Pool Financing Helsinki Oy, Xxxxxxxxx 00X, 00000 Xxxxxxxx ("FIN NEWCO II"),
3. Sanitec Oy, Xxxxxxxxx 00X, 00000 Xxxxxxxx ("FIN NEWCO I"),
4. Sanitec International S.A., 00-00 xxxxxxxxx xx Xxxxxx Xxxxx, X-0000
Xxxxxxxxxx, Xxxxx-Xxxxx de Luxembourg ("LUX NEWCO II "),
5. Pool Acquisition S.A., 00-00 xxxxxxxxx xx Xxxxxx Xxxxx, X-0000 Xxxxxxxxxx,
Xxxxx-Xxxxx xx Xxxxxxxxxx ("LUX NEWCO")
and
6. Bayerische Hypo- und Vereinsbank AG ("PIK LENDER")
PREAMBLE:
1. Fin NewCo I is a 100% subsidiary of Lux NewCo II and Lux NewCo II is
approximately a 93 % subsidiary of Lux NewCo. Lux NewCo II also holds 100 %
of all shares in Fin NewCo III which holds 100 % of all shares in Fin Newco
II.
2. Fin NewCo III is borrower under a EUR 60,000,000 pik loan agreement (the
"PIK LOAN AGREEMENT"; the loan referred to as the "PIK LOAN") with
Bayerische Hypo- und Vereinsbank AG as lender.
3. Fin NewCo II is borrower under a EUR 60,000,000 pik on-loan agreement (the
"PIK ON-LOAN AGREEMENT I"; the loan referred to as the "PIK ON-LOAN I")
with Fin NewCo III as lender.
4. Fin NewCo I, as successor to Pool Acquisition Helsinki Oy, is borrower
under a EUR 60,000,000 pik on-loan agreement (the "PIK ON-LOAN AGREEMENT
II"; the loan referred to as the "PIK ON-LOAN II") with Fin NewCo II as
lender.
5. Lux NewCo II intends to issue notes (the "SENIOR NOTES") on the basis of an
indenture. The proceeds of the issuance of Senior Notes shall be on lent to
Fin NewCo I for the purpose of partially refinancing existing debt of Fin
NewCo I. In connection with the
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issuance of the Senior Notes it is necessary to establish a structure in
which the claims of the PIK Lender under the PIK Loan Agreement are
structurally subordinated to the claims of holders of the Senior Notes.
Therefore, the parties of this Agreement and the PIK Lender agreed that the
structure shall be such that Lux NewCo is borrower under the PIK Loan
Agreement whereas Lux NewCo II is borrower under the PIK On-Loan Agreement
I and lender under the PIK On-Loan Agreement II.
NOW, THEREFORE, IT IS AGREED as follows:
1. DEFINITIONS
Capitalised terms used herein shall have the same meaning as defined in the
PIK Loan Agreement unless expressly otherwise defined in this Agreement.
2. TRANSFER AND ASSUMPTION I
2.1 Lux NewCo hereby expressly assumes all liabilities and obligations of
Fin NewCo III and accepts assignment of all rights from Fin NewCo III
under the PIK Loan Agreement in consideration for Fin NewCo III
transferring all rights it has under the PIK On-Loan Agreement I to Lux
NewCo.
2.2 The PIK Lender hereby expressly consents to the assumption of all
liabilities and obligations by Lux NewCo as set out in 2.1 and
expressly approves the assignment of all rights of Fin NewCo III under
the PIK Loan Agreement to Lux NewCo as set forth in 2.1. The parties
agree that Fin NewCo III shall be released from all existing or future
liabilities under the PIK Loan Agreement.
3. TRANSFER AND ASSUMPTION II
3.1 Lux NewCo II hereby expressly assumes all liabilities and obligations
of Fin NewCo II and accepts assignment of all rights from Fin NewCo II
under the PIK On-Loan Agreement I in consideration for Fin NewCo II
transferring all rights it has under the PIK On-Loan Agreement II to
Lux NewCo II.
3.2 Fin NewCo III hereby expressly consents to the assumption of all
liabilities and obligations by Lux NewCo II as set out in 3.1 and
expressly approves the assignment of all rights of Fin NewCo II under
the PIK On-Loan Agreement I to Lux NewCo II as set forth in 3.1. The
parties agree that Fin NewCo II shall be released from all existing or
future liabilities under the PIK On-Loan Agreement I.
3.3 Lux NewCo hereby expressly assumes all liabilities and obligations of
Fin NewCo III under the PIK On-Loan Agreement I. All rights of Fin
NewCo III under the PIK On-Loan Agreement I shall be assigned to Lux
NewCo. Lux NewCo accepts such assignment.
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3.4 Fin NewCo II hereby expressly consents to the assumption of all
liabilities and obligations by Lux NewCo as set out in 3.3 and
expressly approves the assignment of all rights of Fin NewCo III under
the PIK On-Loan Agreement I to Lux NewCo as set forth in 3.3. The
parties agree that Fin NewCo III shall be released from all existing or
future liabilities under the PIK On-Loan Agreement I. The parties agree
that the version of the PIK On-Loan Agreement I attached as Schedule I
to this agreement shall supercede the original PIK On-Loan Agreement I,
including any changes in the terms or conditions.
4. TRANSFER AND ASSUMPTION III
4.1 Lux NewCo II hereby expressly assumes all liabilities and obligations
of Fin NewCo II under the PIK On-Loan Agreement II. All rights of Fin
NewCo II under the PIK On-Loan Agreement II shall be assigned to Lux
NewCo II. Lux NewCo II accepts such assignment.
4.2 Fin NewCo I hereby expressly consents to the assumption of all
liabilities and obligations by Lux NewCo II as set out in 4.1 and
expressly approves the assignment of all rights of Fin NewCo II under
the PIK On-Loan Agreement II to Lux NewCo II as set forth in 4.1. The
parties agree that Fin NewCo II shall be released from all existing or
future liabilities under the PIK On-Loan Agreement II. The parties
agree that the version of the PIK On-Loan Agreement II attached as
Schedule II to this agreement shall supercede the original PIK On-Loan
Agreement II, including any changes in the terms or conditions.
5. CONDITION PRECEDENT
The transfers and the assumptions as set forth under sections 2, 3 and 4
are subject to the issuance of the Senior Notes having been completed.
6. REIMBURSEMENT OF COST, EXPENSES AND TAXES
Fin NewCo I undertakes to pay and to reimburse or indemnify Lux NewCo and
Lux NewCo II, on a full indemnity basis, for or against all costs,
expenses, charges and fees, which shall include, without limitation, stamp,
registration fees and reasonable legal fees and disbursements of external
legal advisers (collectively the "COSTS"), incurred or sustained by the
named parties in connection with the preparation, drafting and negotiation
of this Agreement and the completion of all further transactions therein or
herein contemplated. All fees and expenses payable pursuant to this Clause
shall be paid together with value added tax or any similar tax (if any)
properly chargeable thereon.
7. LAW
This Agreement shall be governed by and construed in accordance with the
laws of England and Wales.
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8. AMENDMENT
Any amendment to or variation of this Agreement shall be made in writing in
order to be valid and binding upon the parties hereto. The parties hereto
may not waive the form requirement of writing other than in writing by
signing an amendment hereto.
9. JURISDICTION
The ordinary courts of England and Wales shall have jurisdiction in respect
of any dispute arising out of or in connection with this Agreement
including its validity.
10. PARTIAL INVALIDITY
If at any time any provision hereof or part thereof is or becomes illegal,
invalid or unenforceable, the legality, validity or enforceability of the
remaining provisions hereof shall in no way be affected or impaired
thereby. The illegal, invalid or unenforceable provision shall be deemed to
be substituted by a valid, legal and enforceable provision, which reflects
the intention of the parties hereto to the extent that this is legally
possible.
11. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this
Agreement but this does not affect any right or remedy of a third party
which exists or which is available apart form that Act.
Signed for and on behalf of:
Pool Sub-Financing Helsinki Oy
________________________________
Pool Financing Helsinki Oy
________________________________
Sanitec International S.A.
________________________________
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Sanitec Oy
________________________________
Pool Acquisition S.A.
________________________________
Signed for and on behalf:
Bayerische Hypo- und Vereinsbank AG
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