Exhibit 10.1
EXECUTION COPY
_____________________________________________________________________
SANITEC INTERNATIONAL S.A.
(a public limited liability company organised under the laws of Luxembourg)
(euro)260,000,000
9% Senior Note due 2012
PURCHASE AGREEMENT
Dated: 30 April 2002
_____________________________________________________________________
SANITEC INTERNATIONAL S.A.
(a public limited liability organised under the laws of Luxembourg)
(euro)260,000,000
9% Senior Note due 2012
PURCHASE AGREEMENT
30 April 2002
Xxxxxxx Xxxxx International
Xxxxxxx Xxxxx Financial Centre
0 Xxxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX Xxxxxxx
Xxxxxxx Xxxxx International
Peterborough Court
000 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX Xxxxxxx
Bayerische Hypo- und Vereinsbank AG
Xxxxxxxxxxxxxxx 00
X-00000 Xxxxxx, Xxxxxxx
Ladies and Gentlemen:
Sanitec International S.A., a public limited liability company (societe
anonyme) organised under the laws of Luxembourg with its registered office at
00-00 xxxxxxxxx Xxxxxx Xxxxx X-0000 Xxxxxxxxxx (the "COMPANY"), confirms its
agreement with Xxxxxxx Xxxxx International ("XXXXXXX XXXXX"), Xxxxxxx Xxxxx
International ("XXXXXXX SACHS") and Bayerische Hypo- und Vereinsbank AG
("HypoVereinsbank") and each of the other Initial Purchasers named in Schedule A
hereto (collectively, the "INITIAL PURCHASERS," which term shall also include
any initial purchaser substituted as hereinafter provided in Section 11 hereof),
for whom Xxxxxxx Xxxxx, Xxxxxxx Xxxxx and HypoVereinsbank are acting as
representatives (in such capacity, the "REPRESENTATIVES"), with respect to the
issue and sale by the Company and the purchase by the Initial Purchasers, acting
severally and not jointly, of the respective principal amounts set forth in said
Schedule A of (euro)260,000,000 aggregate principal amount of the Company's 9%
Senior Notes due 2012 (the "NOTES"). The Notes are to be issued pursuant to an
indenture, dated as of the Closing Time (as defined below) (the "INDENTURE"),
between the Company and The Bank of New York, as trustee (the "TRUSTEE"). The
Notes will be offered without being registered under the United States
Securities Act of 1933, as amended (the "1933 ACT"). Notes sold by the Initial
Purchasers within the United States to Qualified Institutional Buyers (as
defined below) pursuant to Rule 144A of the 1933 Act ("RULE 144A") promulgated
by the U.S. Securities and Exchange Commission (the
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"COMMISSION") will initially be represented by one global note certificate in
registered form without interest coupons attached (the "144A GLOBAL NOTE") and
Notes sold by the Initial Purchasers outside the United States pursuant to
Regulation S under the 1933 Act ("REGULATION S") will initially be represented
by one global note certificate in registered form without interest coupons
attached (the "REG S GLOBAL NOTE," and together with the 144A Global Note, the
"GLOBAL Notes"). The Global Notes will be issued by the Company and deposited
with The Bank of New York, as custodian (the "CUSTODIAN"), and registered in the
name of The Bank of New York Depository (Nominees) Limited, or its nominee, as
common depositary (the "COMMON DEPOSITARY") for Euroclear Bank S.A./N.V. as
operator of the Euroclear system ("EUROCLEAR") and Clearstream Banking, societe
anonyme ("CLEARSTREAM," and together with Euroclear, the "DEPOSITARY"). Under
certain circumstances as provided for in the Indenture, the Company will issue
definitive registered Notes (the "DEFINITIVE REGISTERED NOTES") in exchange for
part or all of the Global Notes. References herein to the Notes shall, unless
the context otherwise requires, include the Global Notes and any Definitive
Registered Notes.
The proceeds from the Notes will be loaned by the Company to Sanitec
Oy, a company organised under the laws of the Republic of Finland and a
wholly-owned indirect subsidiary of the Company ("SANITEC"), pursuant to a
Senior Notes Loan Agreement, to be dated as of the Closing Time (the "NOTES
ON-LOAN"), between the Company and Sanitec. The proceeds from the Notes On-Loan
will be used to repay in their entirety loans made pursuant to that certain EUR
245,000,000 Mezzanine Term Loan Facility Agreement, dated 26 April 2001, as
amended, among certain affiliates of the Company, HypoVereinsbank, as arranger
and underwriter, Bayerische Hypo- und Vereinsbank AG, London Branch, as
mezzanine facility agent and security agent, and the financial institutions
named therein.
The holders of the Notes will be entitled to the benefits of the A/B
Exchange Registration Rights Agreement relating to the Notes (the "REGISTRATION
RIGHTS AGREEMENT") substantially in the form attached to the Indenture and to be
dated as of the Closing Time between the Company and the Initial Purchasers
pursuant to which the Company will agree, among other things, to file a
registration statement (the "REGISTRATION STATEMENT") with the Commission
registering under the 1933 Act notes issued by the Company under the Indenture
(the "EXCHANGE NOTES"), containing terms identical to the Notes in all material
respects (except for references to certain interest rate provisions,
restrictions on transfers and restrictive legends).
The holders of the Securities (as defined below) will be entitled to
the benefits of (i) a Deed of Pledge, to be dated as of the Closing Time (the
"FINNISH DEED OF PLEDGE"), between the Company and the Trustee pursuant to which
the Company will, among other things, provide (A) upon the distribution of the
outstanding capital stock of Sanitec to the Company, a second priority pledge on
the issued and outstanding capital stock of Sanitec, (B) a first priority pledge
over the receivables under the Notes On-Loan, (C) a first priority pledge over
the receivables under a PIK On-Loan Agreement II made by the Company to Sanitec
pursuant to which the proceeds from an intercompany loan by Pool Acquisition
S.A., a company organized under Luxembourg law and parent entity of the Company
(the "PARENT"), to the Company have been on-lent to Sanitec, and (D) a first
priority pledge over the receivables under the Finnish Shareholder Loan Facility
Agreement made by the Company to Sanitec pursuant to which the proceeds from a
shareholder loan from the Parent to the Company are on-lent to Sanitec, and (ii)
a Deed of Pledge of Registered Shares in a Private Limited Liability Company, to
be dated prior to the Closing Time (the "DUTCH DEED OF
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PLEDGE," and together with the Finnish Deed of Pledge, the "DEEDS OF PLEDGE"),
pursuant to which the Company will, among other things, provide a first priority
pledge of the share capital of Pool Acquisition Netherlands B.V. (in
liquidation) until such time as the capital stock of Sanitec is distributed to
the Company, in each case, as security for performance under the Securities and
certain Operative Documents (as defined below).
The holders of the Securities will be entitled to the benefits of (i)
the Agency Agreement relating to the Securities, to be dated as of the Closing
Time (the "AGENCY AGREEMENT"), between the Company, the Trustee and The Bank of
New York, in its capacity as paying agent and registrar of the Company (the
"AGENT"), pursuant to which the Agent will perform its duties as set forth
therein as agent for the Company, and (ii) the Intercompany On-Loans
Subordination Agreement, to be dated as of the Closing Time (the "SUBORDINATION
AGREEMENT"), between the Company, the Trustee and the Parent pursuant to which
certain receivables from intercompany on-loans made by the Parent to the Company
will be subordinated in right of payment to the notes.
The Notes and the Exchange Notes are herein collectively referred to as
the "SECURITIES." This Purchase Agreement, the Registration Rights Agreement,
the Indenture, the Agency Agreement, the Deeds of Pledge, the Subordination
Agreement, the Notes On-Loan and all other documents, agreements, instruments
entered into or issued or to be entered into or issued by the Company, or any
subsidiary in relation thereto or in connection with the consummation of the
transactions contemplated herein and in the Offering Circular (as defined below)
(including the issuance and sale of the Securities) are herein collectively
referred to as the "OPERATIVE DOCUMENTS."
The Company understands that the Initial Purchasers propose to make an
offering of the Notes on the terms and in the manner set forth herein and agrees
that the Initial Purchasers may resell, subject to the conditions set forth
herein, all or a portion of the Notes to purchasers ("SUBSEQUENT PURCHASERS") at
any time after this Purchase Agreement has been executed and delivered. The
Notes are to be offered and sold through the Initial Purchasers without being
registered under the 1933 Act, in reliance upon exemptions therefrom. Pursuant
to the terms of the Notes and the Indenture, investors that acquire Notes may
only resell or otherwise transfer such Notes if such Notes are hereafter
registered under the 1933 Act or if an exemption from the registration
requirements of the 1933 Act is available (including the exemption afforded by
Rule 144A or Regulation S).
You have advised us that the Notes may be sold by Xxxxxxx Xxxxx & Co.
as selling agent for Xxxxxxx Xxxxx, by Xxxxxxx, Xxxxx & Co. as selling agent for
Xxxxxxx Sachs, and by HVB Capital Markets, Inc. as selling agent for
HypoVereinsbank (collectively, the "RULE 144A SELLING AGENTS") to Qualified
Institutional Buyers pursuant to Rule 144A.
The Company has prepared and delivered to each Initial Purchaser copies
of a preliminary offering circular dated 15 April 2002 (the "PRELIMINARY
OFFERING CIRCULAR") and has prepared and will deliver to each Initial Purchaser,
on the date hereof or the next succeeding day, copies of a final offering
circular dated as of the date hereof (the "FINAL OFFERING CIRCULAR"), in each
case, including the U.S. supplement thereto, each for use by such Initial
Purchaser in connection with its solicitation of purchases of, or offering of,
the Notes. "OFFERING CIRCULAR" means the Preliminary Offering Circular, the
Final Offering Circular, or any amendment or supplement to either such document,
including exhibits thereto, which have been prepared and delivered by the
Company to the Initial Purchasers in connection with their solicitation of
purchases of, or offering of, the Notes.
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SECTION 1. REPRESENTATIONS AND WARRANTIES BY THE COMPANY.
(a) REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to each Initial Purchaser as of the date hereof and as of the Closing Time
referred to in Section 2(b) hereof, and agrees with each Initial Purchaser, as
follows:
(i) OFFERING CIRCULAR. Each of the Preliminary Offering Circular
and the Final Offering Circular, including any amendments or supplements
thereto, does not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; the
opinions and intentions expressed therein with respect to the Company and its
subsidiaries are honestly held and have been reached only after considering all
relevant circumstances and are based upon reasonable assumptions, and all
reasonable enquiries have been made by the Company to ascertain such facts and
to verify the accuracy of all such information and statements; PROVIDED that
this representation, warranty and agreement shall not apply to statements in, or
omissions from, the Offering Circular made in reliance upon and in conformity
with information furnished to the Company in writing by any Initial Purchaser
through the Representatives expressly for use in the Offering Circular. Each of
the Preliminary Offering Circular, the Final Offering Circular and any
amendments or supplements thereto, as of their respective dates will contain all
particulars and information required by, and will comply with, the Listing Rules
(as defined below) and all other relevant statutes and regulations.
(ii) INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements and supporting schedules included in the Offering Circular
are independent public accountants with respect to the Company and its
subsidiaries within the meaning of Rule 2-01 of Regulation S-X under the 1933
Act.
(iii) FINANCIAL STATEMENTS OF THE COMPANY. The financial
statements, together with the related schedules and notes, included in the
Offering Circular present fairly the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; such financial statements
have been prepared in conformity with accounting principles generally accepted
in Finland ("FINNISH GAAP") applied on a consistent basis throughout the periods
involved. The supporting schedules, if any, included in the Offering Circular
present fairly in accordance with Finnish GAAP the information required to be
stated therein. The selected financial data and the summary financial
information included in the Offering Circular present fairly the information
shown therein and have been compiled on a basis consistent with that of the
audited financial statements included in the Offering Circular. The assumptions
used in preparing the pro forma financial statements included in the Offering
Circular provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described therein and the
related pro forma adjustments give appropriate effect to those assumptions.
(iv) FINANCIAL STATEMENTS OF POOL ACQUISITION NETHERLANDS B.V. The
financial statements, together with the related schedules and notes, included in
the Offering Circular present fairly the financial position of Pool Acquisition
Netherlands B.V., a company organised under the laws of the Netherlands and
successor entity to Sanitec, and its consolidated subsidiaries at the dates
indicated and the statement of operations, stockholders' equity and cash flows
of Pool Acquisition Netherlands B.V. and its consolidated subsidiaries
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for the periods specified; such financial statements have been prepared in
conformity with Finnish GAAP applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in the Offering
Circular present fairly in accordance with Finnish GAAP the information required
to be stated therein. The selected financial data and the summary financial
information included in the Offering Circular present fairly the information
shown therein and have been compiled on a basis consistent with that of the
audited financial statements included in the Offering Circular. The assumptions
used in preparing the pro forma financial statements included in the Offering
Circular provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described therein and the
related pro forma adjustments give appropriate effect to those assumptions.
(v) FINANCIAL STATEMENTS OF SANITEC. The financial statements,
together with the related schedules and notes, included in the Offering Circular
present fairly the financial position of Sanitec and its consolidated
subsidiaries at the dates indicated and the statement of operations,
stockholders' equity and cash flows of Sanitec and its consolidated subsidiaries
for the periods specified; said financial statements have been prepared in
conformity with Finnish GAAP applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in the Offering
Circular present fairly in accordance with Finnish GAAP the information required
to be stated therein. The selected financial data and the summary financial
information included in the Offering Circular present fairly the information
shown therein and have been compiled on a basis consistent with that of the
audited financial statements included in the Offering Circular. The assumptions
used in preparing the pro forma financial statements included in the Offering
Circular provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described therein and the
related pro forma adjustments give appropriate effect to those assumptions.
(vi) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the respective
dates as of which information is given in the Offering Circular, except as
otherwise stated therein, (A) there has been no material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business (a "MATERIAL ADVERSE
EFFECT"), (B) there have been no transactions entered into by the Company or any
of its subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered as one
enterprise, and (C) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(vii) ORGANISATION OF THE COMPANY. The Company has been duly
organised and is validly existing as a public company (societe anonyme) under
the laws of Luxembourg and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the Offering
Circular and to enter into and perform its obligations under the Securities and
the Operative Documents (including this Purchase Agreement) and the transactions
contemplated thereby; and the Company is duly qualified as a foreign corporation
to transact business in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify would not result in
a Material Adverse Effect.
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(viii) GOOD STANDING OF SUBSIDIARIES. Except as otherwise disclosed
in the Offering Circular, each subsidiary of the Company has been duly organised
and is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation or organisation, has corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Offering Circular and is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse Effect;
except as otherwise disclosed in the Offering Circular, all of the issued and
outstanding capital stock of each of the Company's subsidiaries has been duly
authorised and validly issued, is fully paid and non-assessable and is owned by
the Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of the Company's subsidiaries was issued in
violation of any pre-emptive or similar rights of any security holder of such
subsidiary. Schedule B hereto sets forth a complete list of each subsidiary of
the Company with the relevant jurisdiction of incorporation or organisation and
the Company's direct and indirect ownership thereof.
(ix) CAPITALISATION. The issued and outstanding capital stock of
the Company is as set forth in the financial statements, including the schedules
and notes, included in the Offering Circular under the caption "Capitalization".
The shares of issued and outstanding capital stock of the Company has been duly
authorised and validly issued and is fully paid and non-assessable; none of the
outstanding shares of capital stock of the Company was issued in violation of
the pre-emptive or other similar rights of any of their respective
securityholders. The Company has no authorised but unissued capital stock.
(x) AUTHORISATION OF OPERATIVE DOCUMENTS. Each Operative Document
to which the Company is a party has been duly authorised by the Company and,
when executed and delivered by the Company and any additional parties thereto,
will constitute a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganisation, moratorium or
similar laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law). The
Finnish Deed of Pledge (A) when executed, delivered and perfected as provided
for therein upon the distribution of the capital stock of Sanitec to the Company
will create a valid and enforceable second priority pledge of the capital stock
of Sanitec in favour of the holders of the Securities, and (B) when executed and
delivered will create a valid and enforceable first priority pledge of the Notes
On-Loan and each additional intercompany on-loan covered thereby in favour of
the holders of the Securities. The Dutch Deed of Pledge when executed and
delivered will create a valid and enforceable first priority pledge of the Pool
Acquisition Shares. On or prior to the Closing Time, the Company will have
undertaken any necessary notifications required under applicable law for the
perfection of the security interests as provided for in, and in accordance with,
the Deeds of Pledge.
(xi) AUTHORISATION OF THE SECURITIES. The Notes have been duly
authorised and, at the Closing Time, will have been duly executed,
authenticated, issued and delivered as provided in this Purchase Agreement, will
be enforceable in accordance with their terms,
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except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganisation, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law), and will be in the form contemplated by, and
entitled to the benefits of, the Indenture.
(xii) AUTHORISATION OF NOTES ON-LOAN. The Notes On-Loan has been
duly authorised by Sanitec and, when executed and delivered by Sanitec and any
additional parties thereto, will constitute a valid and binding agreement of
Sanitec, enforceable against Sanitec in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganisation,
moratorium or similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
(xiii) TRANSFER TAXES. No capital, transfer, stamp duty, stamp duty
reserve or other documentary, issuance or transfer taxes or duties are payable
by or on behalf of the Initial Purchasers in Luxembourg, the United Kingdom, the
United States, Finland or the Netherlands, or, in each case, any political
sub-division or taxing authority thereof or therein on (A) the creation, issue
or delivery by the Company of the Notes pursuant hereto or the sale thereof, (B)
the execution and delivery of the Operative Documents, (C) the pledge of the
collateral pursuant to the Deeds of Pledge, (D) the making of, or payment under,
the Notes On-Loan or any other on-loan related to the proceeds from the sale of
the Notes; or (E) the consummation of the transactions contemplated by this
Purchase Agreement.
(xiv) DESCRIPTION OF THE SECURITIES AND THE OPERATIVE DOCUMENTS.
The Securities and each Operative Document will conform in all material respects
to the respective statements relating thereto contained in the Offering Circular
and will be in substantially the respective forms last delivered to the Initial
Purchasers prior to the date of this Purchase Agreement. There are no agreements
or documents that would otherwise be required to be disclosed or described in a
registration statement on Form F-1 under the 1933 Act which have not been so
disclosed and described in the Offering Circular.
(xv) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company nor any
of its subsidiaries is in violation of its respective articles of incorporation,
charter, by-laws or similar organisational documents or in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, pledge agreement, note, guarantee, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which or any of them may be bound, or to which any of the property or assets of
the Company or any of its subsidiaries is subject (collectively, "AGREEMENTS AND
INSTRUMENTS") except for such defaults that would not result in a Material
Adverse Effect; and the execution, delivery and performance of each Operative
Document, the Securities and any other agreement or instrument entered into or
issued or to be entered into or issued by the Company or its subsidiaries in
connection with the transactions contemplated hereby or thereby or in the
Offering Circular and the consummation of the transactions contemplated herein
and in the Offering Circular (including the issuance and sale of the Securities
and the use of the proceeds from the sale of the Securities as described in the
Offering Circular under the caption "USE OF PROCEEDS") and compliance by the
Company with its obligations hereunder and thereunder have been duly authorised
by all necessary corporate action and do not and
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will not, whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or a Repayment Event
(as defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, the Agreements and Instruments except for such
conflicts, breaches or defaults or liens, charges or encumbrances that, singly
or in the aggregate, would not result in a Material Adverse Effect, nor will
such action result in any violation of any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their assets, properties or
operations except for such violations that, singly or in the aggregate, would
not result in a Material Adverse Effect, nor will such action result in any
violation of the provisions of the articles of incorporation, charter, by-laws
or other organisational documents of the Company or any of its subsidiaries. As
used herein, a "REPAYMENT EVENT" means any event or condition which gives the
holder of any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, guarantee, lease, debenture or other evidence of indebtedness
(or any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such indebtedness by
the Company or any of its subsidiaries.
(xvi) ABSENCE OF LABOUR DISPUTE. No labour dispute with the
employees of the Company or any of its subsidiaries exists or, to the knowledge
of the Company or any of its subsidiaries, is imminent except as would not,
singly or in the aggregate, result in a Material Adverse Effect. The Company and
its subsidiaries are in compliance with all applicable laws relating to
environmental and worker safety standards except as would not, singly or in the
aggregate, result in a Material Adverse Effect.
(xvii) ABSENCE OF PROCEEDINGS. Except as disclosed in the Offering
Circular, there is no action, suit, proceeding or inquiry before or brought by
any court or governmental agency or body, domestic or foreign, now pending, or,
to the knowledge of the Company, threatened, against the Company or any of its
subsidiaries which might reasonably be expected to result in a Material Adverse
Effect, or which might reasonably be expected to materially and adversely affect
the properties or assets of the Company or any of its subsidiaries in the
aggregate or the consummation of the transactions contemplated by this Purchase
Agreement or the performance by the Company of its obligations pursuant to each
Operative Document and the Securities. The aggregate of all pending legal or
governmental proceedings to which the Company or any of its subsidiaries is a
party or of which any of their respective property or assets is the subject
which are not described in the Offering Circular, including ordinary routine
litigation incidental to the business, could not reasonably be expected to
result in a Material Adverse Effect.
(xviii) POSSESSION OF INTELLECTUAL PROPERTY. The Company and its
subsidiaries own or possess adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other intellectual
property (collectively, the "INTELLECTUAL PROPERTY") necessary to carry on the
business now operated by them, and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any infringement
of, or conflict with, asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any Intellectual
Property invalid or inadequate to protect the interest of the Company or any of
its subsidiaries therein, and which infringement or conflict (if the
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subject of any unfavourable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in a Material Adverse
Effect.
(xix) POSSESSION OF LICENSES AND PERMITS. The Company and its
subsidiaries possess such permits, licenses, approvals, consents, exemptions,
franchises, and other authorisations (collectively, "GOVERNMENTAL LICENSES")
issued by the appropriate national, state, local or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them and the Company
and its subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses and with the rules and regulations of the regulatory
authorities and governing entities having jurisdiction with respect thereto,
except where the failure so to comply would not, singly or in the aggregate,
have a Material Adverse Effect; all of the Governmental Licenses are valid and
in full force and effect, except where the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and neither the Company nor any
of its subsidiaries has received any notice of, or is aware of, any proceedings
relating to the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavourable decision,
ruling or finding, would result in a Material Adverse Effect.
(xx) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorisation, approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency is necessary or
required for the performance by the Company of its obligations under the
Operative Documents, in connection with the offering, issuance or sale of the
Securities hereunder or the consummation of the transactions contemplated by the
Operative Documents or for the due execution, delivery or performance of the
Operative Documents by the Company, other than as contemplated by Section 3(r)
of this Purchase Agreement and except such as have been already obtained or may
be required under the 1933 Act in connection with the Company's obligations
under the Registration Rights Agreement.
(xxi) TITLE TO PROPERTY. The Company and its subsidiaries have good
and marketable title to all real property owned by them and good title to all
other properties owned by them, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or encumbrances of any
kind except such as (A) are described in the Offering Circular, or (B) do not,
singly or in the aggregate, materially affect the value of such property and do
not interfere with the use made and proposed to be made of such property by the
Company or any of its subsidiaries; and all of the leases and subleases material
to the business of the Company and its subsidiaries, considered as one
enterprise, and under which the Company or any of its subsidiaries holds
properties described in the Offering Circular, are in full force and effect, and
neither the Company nor any of its subsidiaries is aware of any material claim
of any sort that has been asserted by anyone adverse to the rights of the
Company or any of its subsidiaries under any of the leases or subleases
mentioned above, or affecting or questioning the rights of such the Company or
any subsidiary thereof to the continued possession of the leased or subleased
premises under any such lease or sublease.
(xxii) ENVIRONMENTAL LAWS. Except as described in the Offering
Circular and except such matters as would not, singly or in the aggregate,
result in a Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any national, state, local or foreign statute,
law, rule, regulation, ordinance, code or rule of common law, including any
judicial or administrative order, consent, decree or judgment, relating to
9
pollution or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or subsurface
strata) or wildlife, including, without limitation, laws and regulations
relating to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum or
petroleum products (collectively, "HAZARDOUS MATERIALS") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (collectively, "ENVIRONMENTAL LAWS"), (B) the
Company and its subsidiaries have all permits, authorisations and approvals
required under any applicable Environmental Laws and are each in compliance with
their requirements, (C) there are no pending or threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of non-compliance, violation or investigation, or proceedings relating
to any Environmental Law against the Company or any of its subsidiaries, and (D)
to the best of the Company's knowledge after due inquiry, there are no events or
circumstances that might reasonably be expected to form the basis of an order
for clean-up or remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or affecting the Company or any of
its subsidiaries relating to Hazardous Materials or Environmental Laws.
(xxiii) INSURANCE. The Company and its subsidiaries have insurance
covering their respective properties, operations, personnel and businesses,
which insurance the Company believes to be appropriate and is in amounts and
insures against such losses or risks as are customary in the industry in which
the Company and its subsidiaries operate, and all such insurance is in full
force and effect. Neither the Company or any of its subsidiaries has received
notice from any insurer or agent of such insurer that capital improvements or
other expenditures are required or necessary to be made (other than capital
improvements or other expenditures that have been made) in order to continue
such insurance except such notices as are not reasonably likely to have a
Material Adverse Effect.
(xxiv) RELATED PARTY TRANSACTIONS. No relationship, direct or
indirect, exists between or among any of the Company and its subsidiaries, on
the one hand, and any director, officer, shareholder, affiliate, customer or
supplier of any of them, on the other hand, which would be required by the 1933
Act or by the rules and regulations promulgated pursuant thereto to be disclosed
in a registration statement on Form F-1 which is not so disclosed in the
Offering Circular.
(xxv) SUPPLIERS. No supplier of raw materials to the Company or any
of its subsidiaries has ceased shipments of raw materials to the Company or any
of its subsidiaries, other than in the normal and ordinary course of business
consistent with past practices, which cessation would result in a Material
Adverse Effect.
(xxvi) ACCOUNTING CONTROLS. The Company and its consolidated
subsidiaries maintain a system of internal accounting controls sufficient to
provide reasonable assurances that (A) transactions are executed in accordance
with management's general or specific authorisations, (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with Finnish GAAP and to maintain accountability for assets, (C)
access to assets is permitted only in accordance with management's general or
specific authorisation, and (D) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(xxvii) ANTITRUST. Except as described in the Offering Circular and
except such matters as would not, singly or in the aggregate, result in a
Material Adverse Effect,
10
neither the Company nor any of its subsidiaries is currently or has reason or
notice to believe that it will be in the future a party to, or directly or
indirectly concerned in, an agreement, arrangement, understanding or practice
(whether or not legally binding) which has been, is or may (A) contravene any
treaty, regulation or directive of the European Community relating to
competition or trade, or any local competition or trade laws of any other
jurisdiction; (B) be registrable, unenforceable or void or rendering the
Company, its subsidiaries or any of their respective officers, directors or
employees liable to administrative, civil or criminal proceedings under any
competition legislation, trade regulation or similar legislation, or (C) be the
subject of any investigation by any competent authority in respect of any
provision of any competition legislation, trade regulation or similar
legislation in any jurisdiction. Except as specifically described in the
Offering Circular and except as such matters as would not, singly or in the
aggregate, result in a Material Adverse Effect, neither the Company nor any of
its subsidiaries is currently, or has reason to believe that it will be, engaged
in (whether on its own or jointly with any other person) any conduct which
amounts to the abuse of a dominant position in a market which may affect
competition within the European Union or any part of it.
(xxviii) UNLAWFUL CONTRIBUTIONS. Neither the Company nor any of its
subsidiaries nor any director, officer, agent, employee or other person acting
with specific instruction from the Company or any of its subsidiaries has (A)
used any corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity, (B) made any direct or
indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds, (C) caused the Company or any of its subsidiaries
to be in violation of any provision of the U.S. Foreign Corrupt Practices Act of
1977 or other national or local law regulating the payments of bribes to
government officials or employees, or (D) made any bribe or other unlawful
payment.
(xxix) MONEY LAUNDERING AND UNLAWFUL FINANCIAL ACTIVITIES. Neither
the Company nor any of its subsidiaries nor any director, officer, agent,
employee or other person acting with specific instruction from the Company or
any of its subsidiaries has caused the Company or any of its subsidiaries to be
in violation of any European Community directive, national or foreign statute,
or administrative regulation relating to money-laundering, unlawful financial
activities, or control and prevention of terrorism.
(xxx) OTHER INDEBTEDNESS. No event of default exists under any
contract, indenture, mortgage, loan, agreement, note, lease or other agreement
or instrument constituting "INDEBTEDNESS" (as defined in the Indenture) that
either, singly or in the aggregate, could result in a Material Adverse Effect or
could result in a cross-default under any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, guarantee, lease, debenture or other
evidence of Indebtedness (including the Indenture).
(xxxi) INVESTMENT COMPANY ACT. Neither the Company nor any of its
subsidiaries are and upon the issuance and sale of the Securities as herein
contemplated and the application of the net proceeds therefrom as described in
the Offering Circular will be, an "investment company" or an entity "controlled"
by an "investment company" as such terms are defined in the Investment Company
Act of 1940, as amended (the "1940 ACT").
(xxxii) SIMILAR OFFERINGS. Neither the Company nor any of its
"affiliates," as such term is defined in Rule 501(b) under the 1933 Act (each,
an "AFFILIATE"), has, directly or indirectly, solicited any offer to buy, sold
or offered to sell or otherwise negotiated in respect of any security which is
or would be integrated with the sale of the Notes in a manner that
11
would require the Notes to be registered under the 1933 Act. The Company will
take reasonable precautions designed to insure that any offer or sale, direct or
indirect, in the United States or to any U.S. person (as defined in Rule 902
under the 0000 Xxx) of any Securities or any substantially similar security
issued by the Company, within six months subsequent to the date on which the
distribution of the Notes has been completed (as notified to the Company by the
Initial Purchasers), is made under restrictions and other circumstances
reasonably designed not to be integrated with the offer and sale of the notes.
(xxxiii) RULE 144A ELIGIBILITY. The Notes are eligible for resale
pursuant to Rule 144A and will not be, at the Closing Time, of the same class as
securities listed on a national securities exchange registered under Section 6
of the U.S. Securities and Exchange Act of 1934, as amended (the "1934 Act"), or
quoted in a U.S. automated interdealer quotation system. Each of the Preliminary
Offering Circular and the Final Offering Circular, as of their respective dates,
contains all of the information that, if requested by a prospective purchaser of
the Notes on such date, would be required to be provided to such prospective
purchaser pursuant to Rule 144A(d)(4) under the 1933 Act.
(xxxiv) NO GENERAL SOLICITATION. None of the Company, its
Affiliates or any person acting on its or any of their behalf (other than the
Initial Purchasers, as to whom the Company makes no representation) (A) within
the six-month period prior to the date hereof, offered or sold in the United
States or to any U.S. person (as such terms are defined in Regulation S) the
Securities or any security of the same class or series as the Securities, or (B)
has engaged or will engage, in connection with the offering of the Securities,
in any form of general solicitation or general advertising within the meaning of
Rule 502(c) under the 1933 Act.
(xxxv) NO REGISTRATION REQUIRED. Subject to compliance by the
Initial Purchasers with the representations and warranties set forth in Section
2 and the procedures set forth in Section 6 hereof, it is not necessary in
connection with the offer, sale and delivery of the Notes to the Initial
Purchasers and to each Subsequent Purchaser in the manner contemplated by this
Purchase Agreement and the Offering Circular to register the offer and sale of
the Notes under the 1933 Act or to qualify the Indenture under the U.S. Trust
Indenture Act of 1939, as amended (the "1939 ACT").
(xxxvi) NO DIRECTED SELLING EFFORTS. (A) none of the Company, its
Affiliates or any person acting on its or their behalf (other than the Initial
Purchasers, as to whom the Company makes no representation) has engaged or will
engage in any directed selling efforts within the meaning of Regulation S, and
(B) each of the Company and its Affiliates and any person acting on its or their
behalf (other than the Initial Purchasers, as to whom the Company makes no
representation) has complied and will comply with the offering restrictions
requirement of Regulation S. The sale of the Notes pursuant to Regulation S and
Rule 144A is not a part of a plan or scheme to evade the registration provisions
of the 1933 Act.
(xxxvii) SUBSTANTIAL U.S. MARKET INTEREST. There is no "substantial
U.S. market interest" as defined in Rule 902(j) of Regulation S in the Company's
debt or equity securities.
(xxxviii) PORTAL. Application has been made for the Notes to be
eligible for trading in the Portal Market ("PORTAL"), a subsidiary of the Nasdaq
Stock Market Inc.
12
(xxxx) FOREIGN PRIVATE ISSUER. The Company is a "foreign private
issuer" (as such term is defined in the rules and regulations under the 1933 Act
and the 1934 Act).
(xxxxi) LUXEMBOURG LISTING. Application has been made to list the
Notes on the Luxembourg Stock Exchange and, in connection therewith, the Company
prepared and submitted to the Luxembourg Stock Exchange a listing application
with respect to the Notes (the "LISTING Application"). The Listing Application
(A) complies in all material respects with the requirements of the Luxembourg
Stock Exchange, and (B) has been submitted to the Luxembourg Stock Exchange.
There is no requirement of the Luxembourg Stock Exchange to deliver any document
other than the Offering Circular to prospective purchasers or purchasers of the
Notes from the Initial Purchasers in connection with the offer and sale by the
Initial Purchasers of the Notes.
(xxxxii) SALE PROCEEDS. None of the proceeds of the sale of the
Securities will be used, directly or indirectly, for the purpose of purchasing
or carrying any margin security, for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase or carry any margin
security or for any other purpose which might cause any of the Securities to be
considered a "purpose credit" within the meanings of Regulation G, T, U, or X of
the Board of Governors of the U.S. Federal Reserve System (the "FEDERAL RESERVE
BOARD"). The indebtedness represented by the Securities and any related
intercompany loans is being incurred for proper purposes and in good faith.
(xxxxiii) ENGLISH JURISDICTION. The Company has the power to
submit, and has, or in the case of the those Operative Documents subject to
English law to be dated as of the Closing Time, will have at the Closing Time,
legally, validly, effectively and irrevocably submitted to the jurisdiction of
any English court, and have the power to designate, appoint and empower and have
or, with respect to those Operative Documents dated as of the Closing Time, will
have at the Closing Time legally, validly, effectively and irrevocably
designated, appointed and empowered, an agent for service of process in any suit
or proceeding based on or arising under the Securities or the Operative
Documents in any English court as provided in such Operative Documents.
(xxxxiv) TAX RETURNS. All income tax returns of the Company, and
its subsidiaries required by law to be filed have been filed and all taxes shown
by such returns or otherwise assessed, which are due and payable, have been
paid, except assessments against which appeals have been or will be promptly
taken and as to which adequate reserves have been provided. The Company and its
subsidiaries have filed all other tax returns that are required to have been
filed by them pursuant to applicable foreign, national, state, local or other
law, and have paid all taxes due pursuant to such returns or pursuant to any
assessment received by the Company and its subsidiaries, except for such taxes,
if any, as are being contested in good faith and by appropriate proceedings and
as to which adequate reserves have been provided, except to the extent that the
failure to do so would not reasonably be likely to either result in a Material
Adverse Effect or cause a default under any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, guarantee, lease, debenture or other
evidence of Indebtedness (including the Indenture). The charges, accruals and
reserves on the books of the Company and its subsidiaries in respect of all tax
liabilities of the Company, and its subsidiaries for any years not finally
determined are adequate to meet any assessments or re-assessments for additional
tax for any years not finally determined, except to the extent of any inadequacy
that would not reasonably be likely to result in a Material Adverse Effect.
13
(xxxxv) SOLVENCY; LIQUIDATION. The Company and each of its
subsidiaries are, and immediately after the Closing Time will be, Solvent,
except as described in the Offering Circular or to the extent any non-material
subsidiary is not Solvent, such failure to be Solvent would neither result in a
Material Adverse Effect nor cause a default under any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, guarantee, lease,
debenture or other evidence of Indebtedness (including the Indenture). As used
herein, the term "SOLVENT" means, with respect to the Company and each of its
subsidiaries on a particular date, that on such date (A) the fair market value
of the assets of such entity is greater than the total amount of liabilities
(including contingent liabilities) of the entity, (B) the present fair saleable
value of the assets of such entity is greater than the amount that will be
required to pay the probable liabilities of the entity on its debts as they
become absolute and matured, (C) such entity is able to realise upon its assets
and pay its debts and other liabilities, including contingent obligations, as
they mature, and (D) such entity does not have unreasonably small capital.
Except as disclosed in the Offering Circular, no proceedings have been commenced
for purposes of, and no judgment has been rendered for, the liquidation,
bankruptcy or winding-up of the Company or any of its subsidiaries except to the
extent such proceedings relate to the voluntary liquidation or winding-up of a
non-material subsidiary of the Company and the result of such liquidation or
winding-up would not result in a Material Adverse Effect.
(xxxxvi) REGISTRATION RIGHTS. There are no persons (other than
pursuant to the Registration Rights Agreement) with registration rights or other
similar rights to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933 Act.
(xxxxvii) STABILISATION OR MANIPULATION. Neither the Company nor
any of its Affiliates, nor any person acting on its or their behalf, has taken
or will take, directly or indirectly, any action designed to cause or to result
in, or that has constituted or which might be expected to constitute, the
stabilisation or manipulation of the price of any security to facilitate the
sale or resale of the Securities in violation of any applicable law.
(xxxxviii) SELLING EFFORTS. The Company has not distributed and,
prior to the later to occur of (A) the Closing Time, and (B) completion of the
distribution of the Notes, will not distribute any material in connection with
the offering and sale of the Securities other than the Offering Circular or
other materials, if any, permitted by the 1933 Act and the Financial Services
and Markets Xxx 0000 ("FSMA") (or regulations promulgated pursuant to the 1933
Act or FSMA) and approved by the Representatives.
The Company acknowledges that the Initial Purchasers and, for purposes
of the opinions to be delivered to the Initial Purchasers pursuant to Section 5
hereof, counsel to the Company and counsel to the Initial Purchasers will rely
upon the accuracy and truth of the foregoing representations, and the Company
hereby consents to such reliance.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any director or
officer of the Company or any of its subsidiaries delivered to the
Representatives or to counsel for the Initial Purchasers shall be deemed a
representation and warranty by the Company to each Initial Purchaser as to the
matters covered thereby.
14
SECTION 2. Sale and Delivery to Initial Purchasers; Closing.
(a) SECURITIES. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Initial Purchaser, severally and not jointly, and
each Initial Purchaser, severally and not jointly, agrees to purchase from the
Company, the principal amount of Notes set forth in Schedule A opposite the name
of such Initial Purchaser at a purchase price equal to 97.250% of the principal
amount thereof, plus any additional principal amount of Securities which such
Initial Purchaser may become obligated to purchase pursuant to the provisions of
Section 11 hereof (the "PURCHASE PRICE").
(b) PAYMENT OF PURCHASE PRICE. Payment of the Purchase Price for, and
delivery of certificates for, the Notes shall be made at the office of Xxxxxx &
Xxxxxxx or at such other place as shall be agreed upon by the Representatives
and the Company, at 9:00 A.M. (London time) on the fifth Business Day after the
date hereof (unless postponed in accordance with the provisions of Section 11),
or such other time not later than ten Business Days after such date as shall be
agreed upon by the Representatives and the Company (such time and date of
payment and delivery being herein called the "CLOSING TIME"). As used herein, a
"BUSINESS DAY" shall mean any calendar day of the week (excluding Saturday,
Sunday and statutory holidays) on which the banks in London, England are open
for business.
Payment shall be made to the Company by wire transfer of immediately
available funds in Euros to a bank account or accounts designated by the
Company, against delivery to the Representatives for the respective accounts of
the Initial Purchasers of certificates for the Notes to be purchased by them. It
is understood that each Initial Purchaser has authorised the Representatives,
for its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Notes which it has agreed to purchase. Any Initial
Purchaser, individually and not as representative of the Initial Purchasers, may
(but shall not be obligated to) make payment of the Purchase Price to be
purchased by any other Initial Purchaser whose funds have not been received by
the Closing Time, but such payment shall not relieve such Initial Purchaser from
its obligations hereunder.
(c) PAYMENT OF EXPENSES. Concurrently with the purchase of the Notes
and payment of the Purchase Price by the Initial Purchasers, the Company shall
pay to the Initial Purchasers by wire transfer of immediately available funds in
euros to a bank account or accounts designated by the Representatives for such
purpose any costs and expenses for which the Company has agreed to pay the
Initial Purchasers pursuant to Section 4 of this Purchase Agreement.
(d) DENOMINATIONS; REGISTRATION. The Company shall cause the Global
Notes to be registered in the name of the Common Depositary, for credit at the
Closing Time to the accounts as the Representatives may request in writing at
least one Business Day before the Closing Time. Certificates for the Global
Notes, duly executed on behalf of the Company and authenticated in accordance
with the Indenture and Agency Agreement, shall be delivered to the Common
Depositary. The certificates representing the Global Notes shall be made
available for examination by the Initial Purchasers and their representatives in
London, England not later than 10:00 A.M. on the last Business Day prior to the
Closing Time.
(e) STABILISATION. In connection with this issue of Notes, Xxxxxxx
Sachs International and its affiliates or anyone acting on their behalf may
over-allot or effect transactions which stabilise or maintain the market price
of the Notes at a level which might
15
not otherwise prevail and no other person will effect such transactions (whether
in the open market or otherwise). Such stabilising, if commenced, may be
discontinued at any time. Such stabilising shall be conducted in accordance with
all applicable laws and rules. Any loss or profit sustained as a consequence of
any such over-allotment or stabilising shall, as against the Company, be for the
account of Xxxxxxx Xxxxx International. The Initial Purchasers acknowledge that
the Company has not authorised the creation and issue of Notes in excess of, and
shall not issue Notes that exceed, (euro)260,000,000 in aggregate principal
amount.
SECTION 3. Covenants of the Company. The Company covenants with each
Initial Purchaser as follows:
(a) OFFERING CIRCULAR. The Company, as promptly as possible, will
furnish to each Initial Purchaser, without charge, such number of copies of the
Preliminary Offering Circular, the Final Offering Circular and any amendments
and supplements thereto and documents incorporated by reference therein as such
Initial Purchaser may reasonably request.
(b) NOTICE AND EFFECT OF MATERIAL EVENTS. So long as the Securities are
outstanding, the Company, as promptly as possible, will notify each Initial
Purchaser of (i) any public filing made by the Company of information relating
to the offering of the Securities with any securities exchange or any other
regulatory body in the United States or any other jurisdiction, and (ii) prior
to the completion of the placement of the Notes by the Initial Purchasers as
evidenced by a notice in writing from the Initial Purchasers to the Company, any
material changes in or affecting the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise which (A) make any statement in the
Offering Circular false or misleading, or (B) are not disclosed in the Offering
Circular. In such event or if during such time any event shall occur as a result
of which it is necessary, in the reasonable opinion of any of the Company, its
counsel, the Initial Purchasers or counsel for the Initial Purchasers, to amend
or supplement the Final Offering Circular in order that the Final Offering
Circular not include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances then existing, the Company will forthwith
amend or supplement the Final Offering Circular by preparing and furnishing to
each Initial Purchaser an amendment or amendments of, or a supplement or
supplements to, the Final Offering Circular (in form and substance satisfactory
in the reasonable opinion of counsel for the Initial Purchasers) so that, as so
amended or supplemented, the Final Offering Circular will not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances existing at
the time it is delivered to a Subsequent Purchaser, not misleading.
(c) AMENDMENT TO OFFERING CIRCULAR AND SUPPLEMENTS. The Company will
advise each Initial Purchaser promptly of any proposal to amend or supplement
the Offering Circular and will not effect such amendment or supplement without
the consent of the Initial Purchasers. Neither the consent of the Initial
Purchasers, nor the Initial Purchaser's delivery of any such amendment or
supplement, shall constitute a waiver of any of the conditions set forth in
Section 5 hereof.
(d) QUALIFICATION OF SECURITIES FOR OFFER AND SALE. The Company will
cooperate with the Initial Purchasers to qualify the Securities for offering and
sale under the applicable
16
securities laws of such states and other jurisdictions as the Representatives
may designate and will maintain such qualifications in effect as long as
required for the sale of the Securities; PROVIDED, HOWEVER, that the Company
shall not be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject.
(e) RATING OF SECURITIES. The Company shall take all reasonable action
necessary to enable Standard & Poor's Ratings Services, a division of McGraw
Hill, Inc. ("S&P"), and Xxxxx'x Investors Service Inc. ("MOODY'S") to provide
their respective credit ratings of the Securities.
(f) EUROCLEAR AND CLEARSTREAM. The Company will cooperate with the
Representatives and use its best endeavours to permit the Securities to be
eligible for clearance and settlement through the facilities of Euroclear and
Clearstream and will assist the Initial Purchasers in obtaining the approval of
Euroclear and Clearstream for "book-entry" transfer of the Securities in global
form.
(g) USE OF PROCEEDS. The Company will use the proceeds received by it
from the sale of the Securities in the manner specified in the Offering Circular
under "Use of Proceeds."
(h) RESTRICTION ON SALE OF SECURITIES. During a period of 180 days from
the date of the Offering Circular, the Company will not, without the prior
written consent of the Representatives, directly or indirectly, issue, sell,
offer or agree to sell, grant any option for the sale of, or otherwise dispose
of, any other debt securities of the Company or securities of the Company that
are convertible into, or exchangeable for, the Securities or such other debt
securities (other than the Exchange Notes). The Company will not, and will not
permit any of its Affiliates to, purchase and resell any Securities which
constitute "restricted securities" under Rule 144A that have been re-acquired by
them.
(i) PORTAL DESIGNATION. The Company will use its best endeavours to
permit the Securities to be designated PORTAL securities in accordance with the
rules and regulations adopted by the National Association of Securities Dealers,
Inc. ("NASD") relating to trading in the PORTAL Market.
(j) LISTING ON SECURITIES EXCHANGE. The Company will use its best
endeavours to (i) effect the listing of the Notes on the Luxembourg Stock
Exchange to be effective at the Closing Time, (ii) effect the listing of the
Exchange Notes to be effective at the time the Registration Statement is
declared effective by the Commission, and (iii) maintain the listing of the
Securities on the Luxembourg Stock Exchange for so long as such Securities are
outstanding. In connection with the foregoing, the Company will, on or prior to
the date on which the Securities are approved for listing on the Luxembourg
Stock Exchange, submit to the Luxembourg Stock Exchange the Offering Circular
and each document in final form as required by Article 6 and Appendix I of the
grand ducal regulation of 28 December, 1990 on the requirements for the
drawing-up, scrutiny and distribution of the prospectus to be published where
transferable securities are offered to the public or of listing particulars to
be published for the admission of transferable securities to official stock
exchange listing (as amended) (the "LISTING RULES"). If the Securities are
approved for listing on the Luxembourg Stock Exchange, the Company will publish
the Offering Circular (and, if appropriate, any supplemental Offering Circular)
as required by the Listing Rules. The Company will comply
17
with the Listing Rules and all applicable provisions of the Luxembourg Stock
Exchange's internal rules and regulations; and the Company will make available
sufficient copies of the Offering Circular or Registration Statement, as the
case may be, at the registered office of the Company and the other locations
referred to in the Offering Circular or Registration Statement, as the case may
be, as required by the Luxembourg Stock Exchange.
(k) COMPLETION OF RESTRUCTURING. The Company will restructure or will
cause to be restructured certain debt obligations of its subsidiaries so that on
or prior to the Closing Time (i) the Parent becomes the borrower under that
certain EUR 60,000,000 PIK Loan Agreement with HypoVereinsbank, and (ii) the
Parent becomes the borrower under that certain Shareholder Loan Agreement, dated
26 April 2001, as amended, with certain investors identified therein, the result
of which the obligations under such agreements will each be structurally
subordinated to the obligations of the Company under the Indenture and the
Securities (collectively, the "DEBT TRANSFER AND ASSUMPTION").
(l) INVESTMENT COMPANY. The Company will not be or become at any time,
an open-end investment trust, a unit investment trust or face-amount certificate
company that is or is required not to be registered under Section 8 of the 1940
Act, and it will not become a closed-end investment company required to be
registered, but not registered, thereunder.
(m) RESALE RESTRICTIONS. During the period of two years after the
Closing Time, the Company will, upon request, furnish to the Representatives,
each of the other Initial Purchasers and any holder of Securities a copy of the
restrictions on transfer if applicable to the Securities.
(n) PRESS RELEASES. Prior to the Closing Time and for 90 days
subsequent to the Closing Time, the Company will not issue any press release or
other communication directly or indirectly or hold any press conference with
respect to the issue of the Securities, the Company or any of its subsidiaries,
the condition, financial or otherwise (except for routine communications in the
ordinary course of business and consistent with past practice), or the earnings,
business affairs or business prospects of the Company or any of its
subsidiaries, without the prior consent of the Initial Purchasers (which consent
shall not be unreasonably withheld), unless in the judgment of the Company and
its counsel, and after notification to the Initial Purchasers such press release
or communication is required by law or except as issued in accordance with the
1933 Act and the rules and regulations promulgated thereunder.
(o) DELIVERY OF MATERIALS. So long as the Securities are outstanding,
the Company will furnish to the Initial Purchasers as soon as practicable after
availability thereof, all reports and other information delivered by the Trustee
to the holders of the Securities under the Indenture. During a period of five
years from the date of the Final Offering Circular, but only to the extent
Securities are outstanding, the Company will furnish to the Initial Purchasers
copies of all reports or other communications (financial or other) furnished to,
or made generally available to, holders of any class of security of either the
Company, its subsidiaries or its direct or indirect parent entities as a whole,
and to deliver to the Initial Purchasers as soon as they are available, copies
of any reports and financial statements furnished to or filed (other than on a
confidential basis) with the Commission or any other securities exchange on
which any class of securities of the Company, its subsidiaries or its direct or
indirect parent entity is listed.
(p) REGULATION M. In connection with the offering of the Securities,
until the Initial Purchasers shall have notified the Company of the completion
of the resale of the
18
Securities, the Company will not cause their affiliated purchasers (as defined
in Regulation M under the 0000 Xxx) to, either alone or with one or more other
persons, bid for or purchase, for any account in which it or any of its
affiliated purchasers has a beneficial interest, any Securities, or attempt to
induce any person to purchase any Securities; and the Company will not cause
their affiliated purchasers to, make bids or purchase for the purpose of
creating actual, or apparent, active trading in or of raising the price of the
Securities.
(q) RESTRICTIONS ON TRANSFER OF PLEDGED ASSETS. Except as set forth in
the Deeds of Pledge, the Company will not transfer title or assign the benefits
of either the Sanitec capital stock, the Notes On-Loan, or any other collateral
pledged thereunder.
(r) DISTRIBUTION OF SANITEC SHARES. The Company will do and perform all
things required or necessary to have transferred to the Company all of the
Sanitec capital stock and all other assets of Pool Acquisition Netherlands, B.V.
(in liquidation), a direct subsidiary of the Company currently in liquidation,
on or prior to December 31, 2002, whether through completion of the dissolution
and liquidation of Pool Acquisition Netherlands, B.V. (in liquidation) or
otherwise, as a result of such transfer, among other things, the Company will
become the direct parent entity of Sanitec and will hold all of the issued and
outstanding Sanitec capital stock. Upon such transfer, the Company shall cause
all notifications required by the Deeds of Pledge to be made and to take all
actions necessary to provide that the pledge of the Sanitec capital stock under
the Finnish Deed of Pledge for the benefit of the Trustee and the holders of the
Securities is duly and validly perfected as a second priority pledge benefiting
the holders of the Securities.
(s) FURTHER ASSURANCES. The Company will use its best endeavours to do
and perform all things required or necessary to be done and performed under this
Purchase Agreement by it prior to the Closing Time and to satisfy all conditions
precedent to the delivery of the Notes.
SECTION 4. Payment of Expenses.
(a) EXPENSES.
(i) COMPANY EXPENSES. The Company will pay all expenses incidental
to the performance of its obligations under the Operative Documents, including
(A) the preparation, printing, delivery to the Initial Purchasers and any filing
of the Preliminary Offering Circular and the Final Offering Circular (including
financial statements and any schedules or exhibits and any document incorporated
therein by reference) and of each amendment or supplement thereto, (B) the
preparation, printing and delivery to the Initial Purchasers of this Purchase
Agreement, any Operational Document and such other documents as may be required
in connection with the offering, purchase, sale, issuance or delivery of the
Securities, (C) the preparation, issuance and delivery of the certificates for
the Notes to the Initial Purchasers, including any transfer taxes, any stamp or
other duties payable upon the sale, issuance and delivery of the Notes to the
Initial Purchasers and any charges of Euroclear and Clearstream in connection
therewith, (D) the fees and disbursements of the Company's counsel, accountants
and other advisors, (E) the qualification of the Securities under securities
laws in accordance with the provisions of Section 3(d) hereof, including filing
fees and the reasonable fees and disbursements of counsel (up to a maximum of
(euro)7,000) for the Initial Purchasers in connection therewith and in
connection with the preparation of the Blue Sky Survey, any supplement thereto,
(F) the fees and expenses of the Trustee, registrar and paying agent, including
the fees and disbursements of their counsel in
19
connection with the Indenture and the Securities, (G) any fees payable in
connection with the rating of the Securities, (H) any fees and expenses payable
in connection with the initial and continued designation of the Securities as
PORTAL securities under the PORTAL Market Rules pursuant to NASD Rule 5322, and
(I) any fees and expenses payable, including fees and expenses of the Luxembourg
Listing Agent, in connection with the initial and continued listing of the
securities on any securities exchange (including the Luxembourg Stock Exchange).
(ii) INITIAL PURCHASERS EXPENSES. Except as otherwise agreed among
the Company and the Initial Purchasers, the Initial Purchasers will pay their
own legal fees and expenses incidental to the performance of their obligations
incurred in respect of the offering of the Notes (including the travel expenses
of the representatives of the Initial Purchasers in connection with the
roadshow); PROVIDED HOWEVER, if the Closing Time does not occur on or before
December 31, 2002, the Company will at such time reimburse the Initial
Purchasers for the legal fees and expenses of their counsel incurred through
such date, such reimbursement to be repaid to the Company at the Closing Time by
the Initial Purchasers if and when the Closing Time was to occur.
(iii) ROADSHOW EXPENSES. The Company, on the one hand, and the
Initial Purchasers as a group, on the other hand, agree to each pay 50% of the
costs of the roadshow (other than travel of the representatives of each party),
including, without limitation, the cost of meeting rooms and facilities, meals,
refreshments, presentations and other out-of-pocket expenses incurred in
connection with the roadshow. Each party will pay all travel expenses of their
respective representatives incurred in connection with the roadshow.
(iv) OTHER EXPENSES. The Company shall reimburse the Initial
Purchasers for the legal fees and expenses of their counsel incurred in
connection with (A) any required modification and amendment of any pre-existing
loan documentation necessary to permit the issuance and sale of the Securities
(up to a maximum of (euro)75,000), and (B) the Debt Transfer and Assumption.
(b) VALUE ADDED TAX. All amounts payable by the Company under this
Purchase Agreement shall be exclusive of Value Added Tax or any similar taxes
("V.A.T."). All amounts charged by the Initial Purchasers or for which the
Initial Purchasers are to be reimbursed will include V.A.T., where appropriate.
In addition, all such amounts shall be paid free and clear of, and without any
deduction or withholding for or on account of, any current or future taxes,
levies, imports, duties, charges or other deductions or withholdings levied in
any jurisdiction from or through which payment is made or where the payer is
located unless such deduction or withholding is required by applicable law, in
which event the Company shall pay additional amounts so that the persons
entitled to such payments receive the amount that such persons would otherwise
have received but for such deduction or withholding.
SECTION 5. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS. The
obligations of the several Initial Purchasers hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any of its
subsidiaries delivered pursuant to the provisions hereof, to the performance by
the Company of its covenants and other obligations hereunder, and to the
following further conditions:
20
(a) OPINION OF UK COUNSEL FOR THE COMPANY. At the Closing Time, the
Representatives shall have received the favourable opinion, dated as of the
Closing Time, of CMS Xxxxxxx XxXxxxx, English counsel for the Company, in form
and substance satisfactory to counsel for the Initial Purchasers, together with
signed or reproduced copies of such letter for each of the other Initial
Purchasers to the effect set forth in Exhibit A hereto and to such further
effect as counsel to the Initial Purchasers may reasonably request. Such opinion
should include the consent of CMS Xxxxxxx XxXxxxx to the use of its name on the
Offering Circular under the headings "Enforcement of Liabilities and Service of
Process" and "Risk Factors - The indenture and the notes are governed by, and
construed in accordance with, English law."
(b) OPINION OF U.S. COUNSEL FOR THE COMPANY. At the Closing Time, the
Representatives shall have received the favourable opinion, dated as of the
Closing Time, of Xxxxxxx Xxxxxxxx & Xxxx, United States counsel for the Company,
in form and substance satisfactory to counsel for the Initial Purchasers,
together with signed or reproduced copies of such letter for each of the other
Initial Purchasers to the effect set forth in Exhibit B hereto and to such
further effect as counsel to the Initial Purchasers may reasonably request.
(c) OPINION OF LUXEMBOURG COUNSEL FOR THE COMPANY. At the Closing Time,
the Representatives shall have received the favourable opinion, dated as of the
Closing Time, of Elvinger Hoss & Prussen, Luxembourg counsel for the Company, in
form and substance satisfactory to counsel for the Initial Purchasers, together
with signed or reproduced copies of such letter for each of the other Initial
Purchasers to the effect set forth in Exhibit C hereto and to such further
effect as counsel to the Initial Purchasers may reasonably request. Such opinion
shall include the consent of Elvinger, Hoss & Prussen to the use of its name in
the Offering Circular under the heading "Enforcement of Liabilities and Service
of Process."
(d) OPINION OF FINNISH COUNSEL FOR THE COMPANY. At the Closing Time,
the Representatives shall have received the favourable opinion, dated as of the
Closing Time, of Xxxxxxx & Indrenius, Finnish counsel for the Company, in form
and substance satisfactory to counsel for the Initial Purchasers, together with
signed or reproduced copies of such letter for each of the other Initial
Purchasers to the effect set forth in Exhibit D hereto and to such further
effect as counsel to the Initial Purchasers may reasonably request.
(e) OPINION OF U.S. AND ENGLISH COUNSEL FOR INITIAL PURCHASERS. At the
Closing Time, the Representatives shall have received signed copies of an
opinion or opinions of Xxxxxx & Xxxxxxx, United States and English counsel for
the Initial Purchasers, dated as of the Closing Time, in form, substance and
number reasonably satisfactory to the Representatives.
(f) OPINION OF LUXEMBOURG COUNSEL FOR INITIAL PURCHASERS. At the
Closing Time, the Representatives shall have received signed copies of an
opinion or opinions of Xxxxxx & Xxxxxxxxx, Luxembourg counsel for the Initial
Purchasers, dated as of the Closing Time, in form, substance and number
reasonably satisfactory to the Representatives.
(g) OPINION OF FINNISH COUNSEL FOR INITIAL PURCHASERS. At the Closing
Time, the Representatives shall have received signed copies of an opinion or
opinions of Waselius & Wist, Finnish counsel for the Initial Purchasers, dated
as of the Closing Time, in form, substance and number reasonably satisfactory to
the Representatives.
21
(h) OFFICERS' CERTIFICATE. At the Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Offering Circular, any material adverse change or
any development involving a prospective material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of two members of the board of
directors of the Company and of the chief financial or chief accounting officer
of the Company, dated as of the Closing Time, to the effect that (i) there has
been no such material adverse change or any development involving a prospective
material adverse change, (ii) the representations and warranties in Section 1
hereof are true and correct with the same force and effect as though expressly
made at and as of the Closing Time, and (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to the Closing Time.
(i) ACCOUNTANTS' COMFORT LETTER. At the time of the execution of this
Purchase Agreement, the Representatives shall have received from KPMG Wideri Oy
Ab a letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Initial Purchasers, containing statements and information of
the type ordinarily included in accountants' "comfort letters" to Initial
Purchasers with respect to the financial statements and certain financial
information contained in the Offering Circular.
(j) BRING-DOWN COMFORT LETTER. At the Closing Time, the Representatives
shall have received from KPMG Wideri Oy Ab a letter, dated as of the Closing
Time, in form and substance satisfactory to the Representatives to the effect
that they reaffirm the statements made in the letter furnished pursuant to
subsection (h) of this Section, except that the specified date referred to shall
be a date not more than three Business Days prior to the Closing Time.
(k) COMPLETION OF DEBT TRANSFER AND ASSUMPTION. As at the Closing Time,
the Debt Transfer and Assumption shall have been completed to the satisfaction
of the Representatives.
(l) MAINTENANCE OF RATING. At the Closing Time, the Securities shall be
rated at least B2 by Moody's and B by S&P, and the Company shall have delivered
to the Representatives a letter dated the Closing Time, from each such rating
agency, or other evidence satisfactory to the Representatives, confirming that
the Securities have such ratings; and since the date of this Purchase Agreement,
there shall not have occurred a downgrading in the rating assigned to the
Securities or any of the Company's other debt securities by any "nationally
recognized statistical rating agency," as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the 1933 Act, and no such securities rating
agency shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of the Securities or any of the
Company's other debt securities.
(m) PORTAL. At the Closing Time, the Securities shall have been
designated for trading on PORTAL.
(n) APPROVAL OF LISTING. At the Closing Time, the Securities shall have
been approved for listing on the Luxembourg Stock Exchange, subject only to
official notice of issuance.
22
(o) ADDITIONAL DOCUMENTS. At the Closing Time, counsel for the Initial
Purchasers shall have been furnished with such documents and opinions as they
may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Notes as herein contemplated, or in order to evidence
the accuracy of any of the representations or warranties, or the fulfilment of
any of the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the Representatives
and counsel for the Initial Purchasers.
(p) OPERATIVE DOCUMENTS. The Initial Purchasers shall have received a
counterpart, conformed as executed, of each Operative Document which shall have
been entered into by the Company and all other applicable parties.
(q) PERFECTION OF PLEDGES. At the Closing Time, all necessary
notifications required under applicable law for the perfection of the pledges
have been made as provided for in, and in accordance with, each of the Finnish
Deed of Pledge and the Dutch Deed of Pledge and such pledges shall have been
validly created and enforceable in favour of the Trustee for the benefit of the
holders of the Securities, in each case, as provided in the respective
agreement.
(r) APPROVALS AND NOTICE. The Company and its subsidiaries shall have
(i) received on or prior to the Closing Date all consents, approvals,
authorisations and other orders of, or qualifications with, each court,
regulatory authority, governmental body or agency, or third party, and (ii)
given all notices required under relevant law and any material agreements, in
each case, required to execute, deliver and perform the Operative Documents.
(s) TERMINATION OF AGREEMENT. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Purchase Agreement may be terminated by the Representatives by written notice to
the Company at any time at or prior to the Closing Time, and such termination
shall be without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 7, 8 and 9 shall survive any such
termination and remain in full force and effect.
SECTION 6. Subsequent Offers and Resales of the Securities.
(a) OFFER AND SALE PROCEDURES. Each of the Initial Purchasers,
severally and not jointly, and the Company hereby establish and agree to observe
the following procedures in connection with the offer and sale of the
Securities:
(i) OFFERS AND SALES ONLY TO CERTAIN BUYERS. Offers and sales of
the Notes shall only be made (A) to persons whom the offeror or seller
reasonably believes to be qualified institutional buyers, as defined in Rule
144A under the 1933 Act ("QUALIFIED INSTITUTIONAL BUYERS"), or (B) non-U.S.
persons outside the United States, as defined in Regulation S under the 1933
Act, to whom the offeror or seller reasonably believes, after due inquiry,
offers and sales of the Notes may be made in reliance upon Regulation S under
the 1933 Act. Each Initial Purchaser severally agrees that it will not offer,
sell or deliver any of the Notes in any jurisdiction outside the United States
except under circumstances that, to the best of its knowledge and belief, after
due inquiry, will result in compliance with the applicable laws thereof.
23
(ii) NO GENERAL SOLICITATION. No general solicitation or general
advertising (within the meaning of Rule 502(c) under the 0000 Xxx) will be used
in the United States in connection with the offering or sale of the Notes.
(iii) PURCHASES BY NON-BANK FIDUCIARIES. In the case of a non-bank
Subsequent Purchaser of a Note acting as a fiduciary for one or more third
parties, each third party shall, in the judgment of the applicable Initial
Purchaser, be a Qualified Institutional Buyer or a non-U.S. person outside the
United States.
(iv) SUBSEQUENT PURCHASER NOTIFICATION. Each Initial Purchaser will
inform, and cause each of its U.S. Affiliates to inform, persons acquiring Notes
from such Initial Purchaser or Affiliate, as the case may be, in the United
States that the Notes (A) have not been and will not be registered under the
1933 Act, (B) are being sold to them without registration under the 1933 Act in
reliance on Rule 144A or in accordance with another exemption from registration
under the 1933 Act, as the case may be, and (C) may not be offered, sold or
otherwise transferred except (1) to the Company, (2) outside the United States
in accordance with Regulation S, or (3) inside the United States in accordance
with (I) Rule 144A to a person whom the seller reasonably believes is a
Qualified Institutional Buyer that is purchasing such Notes for its own account
or for the account of a Qualified Institutional Buyer to whom notice is given
that the offer, sale or transfer is being made in reliance on Rule 144A, or (II)
pursuant to another available exemption from registration under the 1933 Act.
(v) MINIMUM PRINCIPAL AMOUNT. No sale of the Notes to any one
Subsequent Purchaser in the United States will be for less than(euro)100,000
principal amount.
(vi) RESTRICTIONS ON TRANSFER. The transfer restrictions and the
other provisions set forth in the Offering Circular under the heading "Notice to
Investors", including the legend required thereby, shall apply to the Notes
except as otherwise agreed by the Company and the Initial Purchasers.
(b) COVENANTS OF THE COMPANY. The Company covenants with each Initial
Purchaser as follows:
(i) INTEGRATION. The Company agrees that it will not and will cause
its Affiliates not to, directly or indirectly, solicit any offer to buy, sell or
make any offer or sale of, or otherwise negotiate in respect of, securities of
the Company of any class if, as a result of the doctrine of "integration"
referred to in Rule 502 under the 1933 Act, such offer or sale would render
invalid (for the purpose of (A) the sale of the Notes by the Company to the
Initial Purchasers, (B) the resale of the Notes by the Initial Purchasers to
Subsequent Purchasers, or (C) the resale of the Notes by such Subsequent
Purchasers to others) the exemption from the registration requirements of the
1933 Act provided by Section 4(2) thereof or by Rule 144A or by Regulation S
thereunder or otherwise.
(ii) RULE 144A INFORMATION. The Company agrees that, in order to
render the Notes eligible for resale pursuant to Rule 144A under the 1933 Act,
while any of the Notes remain outstanding, it will make available, upon request,
to any holder of Notes or prospective purchasers of Notes the information
specified in Rule 144A(d)(4), unless the Company furnishes information to the
Commission pursuant to Section 13 or 15(d) of the 1934 Act.
24
(iii) RESTRICTION ON REPURCHASES. Until the expiration of two years
after the original issuance of the Securities, the Company will not, and will
cause its Affiliates not to, resell any Securities which are "restricted
securities" (as such term is defined under Rule 144(a)(3) under the 1933 Act),
whether as beneficial owner or otherwise (except as agent acting as a securities
broker on behalf of and for the account of customers in the ordinary course of
business in unsolicited broker's transactions).
(c) STABILISATION INFORMATION. The Company has been informed of the
existence of the U.K. Financial Services Authority stabilising guidance
contained in Section MAR 2, Xxx 2G of the Handbook of rules and guidance issued
by the Financial Services Authority.
(d) EUROPEAN UNION DIRECTIVE. The Company undertakes that, if the
conclusions of the ECOFIN Council meeting of 26th-27th November 2000 are
implemented it will use its best endeavours to ensure that it maintains a
payment agent in a European Union member state that will not be obliged to
withhold or deduct tax pursuant to the proposed European Union Directive on the
taxation of savings income.
(e) ADDITIONAL REPRESENTATIONS AND WARRANTIES OF INITIAL PURCHASERS.
(i) CONTRACTUAL ARRANGEMENTS. Each Initial Purchaser severally and
not jointly represents and agrees that it has not entered and will not enter
into any contractual arrangements with respect to the distribution of the Notes,
except with its affiliates or with the prior written consent of the Company.
(ii) QUALIFIED INSTITUTIONAL BUYER. Each Initial Purchaser
severally and not jointly represents and warrants to, and agrees with, the
Company that it is a Qualified Institutional Buyer and an "accredited" investor"
within the meaning of Rule 501(a) under the 1933 Act.
(iii) RESALE PURSUANT TO RULE 903 OF REGULATION S OR RULE 144A.
Each Initial Purchaser understands that the Notes have not been and will not be
registered under the 1933 Act and may not be offered or sold within the United
States except pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the 1933 Act. Each Initial Purchaser severally
represents and agrees that it has not offered or sold, and will not offer or
sell, any Notes constituting part of its allotment within the United States
except in accordance with Rule 903 of Regulation S under the 1933 Act, Rule 144A
under the 1933 Act or another applicable exemption from the registration
requirements of the 1933 Act. Accordingly, neither it nor its affiliates or any
persons acting on its behalf have engaged or will engage in any directed selling
efforts with respect to the Notes. Terms used in this paragraph have the
meanings given to them by Regulation S.
(iv) UK SELLING RESTRICTIONS. Each Initial Purchaser severally and
not jointly represents and warrants that (A) it has not offered or sold and,
prior to the expiry of a period of six months from the Closing Time, will not
offer or sell any Notes to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (B) it has communicated or caused to be
communicated and will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity (within the meaning of
section 21 of the FSMA received by it in
25
connection with the issue or sale of any Notes in circumstances in which section
21(1) of the FSMA does not apply to the Issuer; and (C) it has complied and will
comply with all applicable provisions of the FSMA with respect to anything done
by it in relation to the Notes in, from or otherwise involving the United
Kingdom.
SECTION 7. Indemnification.
(a) INDEMNIFICATION OF INITIAL PURCHASERS. The Company agrees to
indemnify and hold harmless each Initial Purchaser, each Rule 144A Selling
Agent, and each person, if any, who controls any Initial Purchaser or Rule 144A
Selling Agent within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Offering Circular
(or any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of or based upon any breach or alleged
breach by the Company of its obligations hereunder (including any breach or
alleged breach by the Company of the representations, warranties or undertakings
contained or referred to in this Purchase Agreement or any circumstances which
constitute such a breach);
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the Initial Purchaser
or Rule 144A Selling Agent), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under (i)
or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Initial Purchaser or Rule 144A Selling Agent through the Representatives
expressly for use in the Offering Circular.
(b) INDEMNIFICATION OF COMPANY. Each Initial Purchaser severally agrees
to indemnify and hold harmless the Company and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 7(a) above, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Offering Circular in reliance upon and in
conformity with written information furnished to the Company by such Initial
Purchaser or Rule 144A Selling Agent through the Representatives expressly for
use in the Offering Circular.
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action
26
commenced against it in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defence of any such
action and can assume the defence with counsel satisfactory to the indemnified
party; PROVIDED, HOWEVER, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. After notice from the indemnified party of assumption of
defence, the indemnifying party is not liable to the indemnified party. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 7 or Section 8 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim, and (ii)
does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
SECTION 8. CONTRIBUTION. If the indemnification provided for in Section
7 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (a) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Initial Purchasers on the other hand from the offering of the
Securities pursuant to this Purchase Agreement, or (b) if the allocation
provided by clause (a) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(a) above but also the relative fault of the Company on the one hand and of the
Initial Purchasers on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Initial Purchasers on the other hand in connection with the offering of the
Securities pursuant to this Purchase Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the Notes
pursuant to this Purchase Agreement (before deducting expenses) received by the
Company and the total underwriting commissions received by the Initial
Purchasers, bear to the aggregate initial offering price of the Notes.
The relative fault of the Company on the one hand and the Initial
Purchasers on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Initial Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Initial Purchasers agree that it would not be just
and equitable if contribution pursuant to this Section was determined by PRO
RATA allocation (even if the Initial Purchasers were treated as one entity for
such purpose) or by any other method of
27
allocation which does not take account of the equitable considerations referred
to above in this Section. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in
this Section shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities purchased and sold by it hereunder exceeds
the amount of any damages which such Initial Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Initial Purchasers'
respective obligations to contribute pursuant to this Section are several in
proportion to the principal amount of Securities set forth opposite their
respective names in Schedule A hereto and not joint.
The obligations of the Company under Section 7 and Section 8 will be in
addition to any liability which the Company may otherwise have and will extend,
upon the same terms and conditions, to each person, if any, who is the parent
company of any Initial Purchaser, or the subsidiary of such parent, or who
controls any Initial Purchaser within the meaning of the 1933 Act or is the
directors, officer, agent or employee of any such person; and the obligations of
the Initial Purchaser under Section 7 and Section 8 will be in addition to any
liability which the respective Initial Purchaser may otherwise have and will
extend, upon the same terms and conditions, to each officer and director of the
Company.
The Company and its Affiliates will not make any claim against any of
the Initial Purchasers, or any other indemnified party, to recover any loss,
claim, damage or liability which the Company or any of its Affiliates or any
other person may suffer or incur by reason of arising out of the carrying out or
the performance by any indemnified party, or on their behalf, of their
obligations or services under this Purchase Agreement unless and to the extent
that such loss, damage cost charge or expense arises from the gross negligence,
wilful default or bad faith of such indemnified party.
SECTION 9. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Purchase Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any Initial
Purchaser or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the Initial Purchasers.
SECTION 10. Termination of Agreement.
(a) TERMINATION; GENERAL. The Representatives may terminate this
Purchase Agreement, by notice to the Company, at any time at or prior to the
Closing Time (i) if there has been in the opinion of the Representatives, since
the time of execution of this Purchase Agreement or since the respective dates
as of which information is given in either the
28
Preliminary Offering Circular or Final Offering Circular, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, (ii)
if there has occurred in the opinion of the Representatives any material adverse
change in any financial market in either Europe or the United States or any
other international financial market, any outbreak of hostilities or escalation
thereof or other calamity or crisis, or any change or development involving a
prospective change in national or international political, financial or economic
conditions, or any material disruption in commercial banking or securities
settlement or clearance in the United States, the European Union or any member
state of the European Union, in each case the effect of which is such as to make
it, in the judgment of the Representatives, impracticable to market the
Securities or to enforce contracts for the sale of the Securities, (iii) if
trading generally on the London Stock Exchange, the Luxembourg Stock Exchange,
the American Stock Exchange, the New York Stock Exchange or in The Nasdaq Stock
Market, Inc. has been suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, the NASD or any other governmental authority, (iv) if any banking
moratorium has been declared by either U.S. federal or New York authorities or
by the competent governmental or regulatory authorities in the European Union or
any member state of the European Union, or (v) an adverse change or a
prospective adverse change since the date hereof in the tax laws of the United
States, the European Union, or any member state of the European Union which
affect the Securities or the transfer thereof (otherwise than as set forth in
the Offering Circular) or the imposition or exchange controls by the United
States, the European Union or any member state of the European Union.
(b) LIABILITIES. If this Purchase Agreement is terminated pursuant to
this Section, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further that
Sections 1, 7, 8 and 9 shall survive such termination and remain in full force
and effect.
SECTION 11. DEFAULT BY ONE OR MORE OF THE INITIAL PURCHASERS. If one or
more of the Initial Purchasers shall fail at the Closing Time to purchase the
Notes which it or they are obligated to purchase under this Purchase Agreement
(the "DEFAULTED SECURITIES"), the Representative(s) shall have the right, but
not the obligation, within 36 hours thereafter, to make arrangements for one or
more of the non-defaulting Initial Purchasers, or any other Initial
Purchaser(s), to purchase, each severally and not jointly, all, but not less
than all, of the Defaulted Securities in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 36-hour period, then this Purchase
Agreement shall terminate without liability on the part of any non-defaulting
Initial Purchaser.
No action taken pursuant to this Section shall relieve any defaulting
Initial Purchaser from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Purchase Agreement, either the Representatives or the Company shall have
the right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Offering Circular or in any other
documents or arrangements, and the Company agrees to prepare promptly any
amendments to the Offering Circular which in the opinion of the Representatives
may thereby be necessary.
29
SECTION 12. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the Initial
Purchasers shall be directed to the Representatives at (a) Xxxxxxx Xxxxx
International, Xxxxxxx Xxxxx Financial Centre, 2 Xxxx Xxxxxx Street, London,
EC1A 1HQ, attention: Europe Leveraged Finance Group (fax: x00 000 000 0000); and
(b) Xxxxxxx Xxxxx International, Xxxxxxxxxxxx Xxxxx, 000 Xxxxx Xxxxxx, Xxxxxx
XX0X 0XX, attention: Debt Capital Markets (fax: x00 000 000 0000); and (c)
HypoVereinsbank, Xxxxxxxxxxxxxxx 00, X-00000 Xxxxxx, Xxxxxxx, attention:
Transaction Management Group (MSE7) (fax: x00 00 000 00000). Notices to the
Company shall be directed to it at Sanitec International S.A., c/o Xx. Xxxxxx
Xxxxx, 00-00, xxxxxxxxx Xxxxxx Xxxxx, X-0000 Xxxxxxxxxx, RC Luxembourg B 82 055,
with a copy to Sanitec Corporation, Xxxxxxxxx 00X, 00000 Xxxxxxxx, Xxxxxxx,
attention of Xxxx Xxxxx.
SECTION 13. PARTIES. This Purchase Agreement shall inure to the benefit
of, and be binding upon, the Initial Purchasers and the Company and their
respective successors. No purchaser of Securities from any Initial Purchaser
shall be deemed to be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND JUDGMENTS.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF ENGLAND AND WALES WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES.
(b) To the extent that the Company or any of its respective properties,
assets or revenues may have or may hereafter become entitled to, or have
attributed to it, any right of immunity, on the grounds of sovereignty or
otherwise, from any legal action, suit or proceeding, from the giving of any
relief in any such legal action, suit or proceeding, from set-off or
counterclaim, from the competent jurisdiction of any court, from service of
process, from attachment upon or prior to judgment, from attachment in aid of
execution of judgment, or from execution of judgment, or other legal process or
proceeding for the giving of any relief or for the enforcement of any judgment,
in any competent jurisdiction in which proceedings may at any time be commenced,
with respect to its obligations, liabilities or any other matter under or
arising out of or in connection with this Purchase Agreement and the
transactions contemplated hereby, the Company hereby irrevocably and
unconditionally waives, and agrees not to plead or claim, any such immunity and
consent to such relief and enforcement.
(c) This Purchase Agreement does not create any rights for third
parties under the Contracts (Rights of Third Parties) Act 1999 (which will apply
to this Purchase Agreement) other than each person, if any, who is the parent
company of any Initial Purchaser, or the subsidiary of such parent, or who
controls any Initial Purchaser within the meaning of the 1933 Act or is the
director, officer, agent or employee of any such person. Such persons may
enforce their rights under this Purchase Agreement. The Initial Purchasers will
have no liability to any such person for any action or inaction under or
pursuant to this Purchase Agreement. The parties to this Purchase Agreement may
terminate, amend, restate or vary this Purchase Agreement in anyway without the
consent of the other persons described in this Section 14(c).
(d) Each of the parties hereto irrevocably agrees that any suit, action
or proceeding arising out of or based upon this Purchase Agreement shall be
instituted in the
30
courts of England and Wales; and irrevocably waives, to the fullest extent it
may effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such proceeding; and irrevocably submits to the
jurisdiction of the courts of England and Wales in any such suit, action or
proceeding. However, no Initial Purchaser shall be prevented from bringing
proceedings in any other courts with jurisdiction. To the extent allowed by law,
the Initial Purchasers may bring concurrent proceedings in any number of
jurisdictions. The Company has appointed Twyford Bathrooms, a wholly-owned
indirect subsidiary of the Company, as its authorised agent (the "UK AUTHORISED
AGENT") upon whom process may be served in any such suit, action or proceeding
arising out of or based upon this Purchase Agreement, which may be instituted in
a court located in London, England (the "UK APPOINTMENT LETTER AGREEMENT"). The
Company expressly consent to the jurisdiction of the courts of England and Wales
in respect of any such action and waive any other requirements of or objections
to personal jurisdiction with respect thereto. Such appointment shall be
irrevocable unless and until replaced by an agent reasonably acceptable to the
Initial Purchasers. The Company represents and warrant that the UK Authorised
Agent has agreed to act as said agent for service of process, and the Company
agrees to take any and all action, including the filing of any and all documents
and instruments, that may be necessary to continue such appointment in full
force and effect as aforesaid. Service of process upon the UK Authorised Agent
and written notice of such service to the Company shall be deemed, in every
respect, effective service of process upon the Company.
(e) The obligation of the parties to make payments pursuant to this
Purchase Agreement is in Euros (the "OBLIGATION CURRENCY") and such obligation
shall not be discharged or satisfied by any tender or recovery pursuant to any
judgment expressed in any currency other than the Obligation Currency or any
other realisation in such other currency, whether as proceeds of set-off,
security, guarantee, distributions, or otherwise, except to the extent to which
such tender, recovery or realisation shall result in the receipt by the party
which is to receive such payment of the full amount of the Obligation Currency
expressed to be payable hereunder. The party liable to make such payment agrees
to indemnify the party which is to receive such payment for the amount (if any)
by which such receipt shall fall short of the full amount of the Obligation
Currency expressed to be payable hereunder and the party which is to receive
such payment agrees to pay to the party liable to make such payment the amount
(if any) by which such receipt shall exceed the full amount of the Obligation
Currency, and, in each case, such obligation shall not be affected by judgment
being obtained for any other sums due under this Purchase Agreement. The parties
agree that the rate of exchange which shall be used to determine if such tender,
recovery or realisation shall result in the receipt by the party which is to
receive such payment of the full amount of the Obligation Currency expressed to
be payable hereunder shall be the noon buying rate in New York City for cable
transfers in foreign currencies as certified for customs purposes by the Federal
Reserve Bank of New York for the Business Day preceding that on which the
judgment becomes a final judgment.
SECTION 15. EFFECT OF HEADINGS. The Article, Section and subsection
headings used herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
(SIGNATURE PAGE FOLLOWS.)
31
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Initial Purchasers and the Company in accordance with its terms.
Very truly yours,
SANITEC INTERNATIONAL S.A.
____________________________________
Name:
Title:
____________________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX INTERNATIONAL
________________________________
Name:
Title:
XXXXXXX SACHS INTERNATIONAL
________________________________
Name:
Title:
BAYERISCHE HYPO- UND VEREINSBANK AG
________________________________
Name:
Title:
For themselves and as Representatives of the other Initial Purchasers named in
Schedule A hereto.
S-1
SCHEDULE A
----------
Principal Amount
Name of Initial Purchaser of Securities
------------------------- -------------
Xxxxxxx Xxxxx International ...............................(euro)104,000,000
Xxxxxxx Sachs International................................(euro)104,000,000
Bayerische Hypo- und Vereinsbank AG........................(euro)52,000,000
Total......................................................(euro)260,000,000
Schedule A-1
SCHEDULE B
----------
List of Subsidiaries
--------------------
JURISDICTION OF OWNERSHIP
SUBSIDIARIES ORGANISATION INTEREST
------------ ------------ --------
Pool Financing Helsinki Oy...................................................Finland 100.0
Pool Acquisition Helsinki Oy.................................................Finland 100.0
Sanitec Oy...................................................................Finland 100.0
Ido Bathroom Ltd.............................................................Finland 100.0
Ido Badrum A/S................................................................Norway 100.0
Posgrund Oy..................................................................Finland 100.0
Ido Badrum AB................................................................Sweden 100.0
Posgrund Bad A/S.............................................................Norway 100.0
Ifo Sanitar A/S...............................................................Sweden 100.0
Fastighets AB Pressarna.......................................................Sweden 100.0
Ifo Sanitar A/S...............................................................Norway 100.0
Scandi-aqualine A/S..........................................................Denmark 100.0
Ifo Sanitar Eesti AS.........................................................Estonia 100.0
Scandiaqua Sp.zo.o............................................................Poland 100.0
Sanitec International S.A.....................................................France 100.0
Allia S.A.....................................................................France 100.0
Polyroc S.A...................................................................France 99.9
Omnium de Distribution Sanitaires S.A.S.......................................France 99.9
Omnium de Distribution Sanitaires Sp.Zo.o.....................................Poland 99.9
Murena S.A....................................................................France 99.9
Leda S.A......................................................................France 100.0
Leda Production S.A...........................................................France 100.0
Koralle S.a.r.l...............................................................France 100.0
Produits Ceramiques de Touraine S.A..........................................France 100.0
S.N.B. Manufacture S.A.R.L...................................................France 100.0
Ceravid S.A...................................................................France 100.0
Koninklijke Sphinx B.V...............................................The Netherlands 100.0
Sphinx Services B.V..................................................The Netherlands 100.0
Sphinx Sanitair B.V..................................................The Netherlands 100.0
Sanitair Techniek Rosmalen B.V.......................................The Netherlands 100.0
Aardewerkfabrik de Toekomst B.V......................................The Netherlands 100.0
Warneton Industrie S.A.......................................................Belgium 100.0
Xxxxxx Spol. S.r.o..........................................................Slovakia 100.0
ODS Panda Sp.Zo.o.............................................................Poland 100.0
Sphinx Gusatvsberg Wroclaw Sp.z.o.o...........................................Poland 80.4
Deutsche Sphinx Beteiligungen GmbH...........................................Germany 100.0
Sphinx International B.V.............................................The Netherlands 100.0
Baduscho Vertriebs Ges.m.b.H.................................................Austria 100.0
Xxxxxxx Xxxxxx GesmbH........................................................Austria 100.0
Xxxxxxx Xxxxxx XxxxxX & Xx. XX...............................................Xxxxxxx 100.0
Bekon Koralle AG.........................................................Switzerland 100.0
Koralle Sp.Z.o.o..............................................................Poland 100.0
Sphinx Bathrooms Belgium N.V.................................................Belgium 100.0
JURISDICTION OF OWNERSHIP
SUBSIDIARIES ORGANISATION INTEREST
------------ ------------ --------
Sphinx Bathrooms Ltd..................................................United Kingdom 100.0
Koralle International GmbH...................................................Germany 94.8
Deutsche Sphinx Sanitar GmbH.................................................Germany 96.8
Schedule B-1
Koralle Sanitarprodukte GmbH.................................................Germany 96.8
Servico Gesellschaft fur Sanitartechnik GmbH.................................Germany 96.8
Ceravid GmbH.................................................................Germany 100.0
Keramag Keramische Werke AG .................................................Germany 95.0
Keramag Keramische Werke Haldensleben GmbH...................................Germany 95.0
Varicor S.A...................................................................France 95.0
Keramag Vertriebs Holding GmbH...............................................Germany 95.0
Deutsche Sphinx Vertriebs GmbH...............................................Germany 95.0
Eurocer Industria de Sanitarios S.A.........................................Portugal 100.0
Kerallia Productos Sanitarios Lda...........................................Portugal 100.0
Laminex Sp.z.o.o..............................................................Poland 100.0
Evac International Ltd.......................................................Finland 100.0
Evac AB.......................................................................Sweden 100.0
Evac Vacuum Systems (Shanghai) Co Ltd..........................................China 100.0
Evac GmbH....................................................................Germany 100.0
AquaMar GmbH.................................................................Germany 100.0
Evac Oy......................................................................Finland 100.0
Evac S.A.R.L..................................................................France 100.0
Evac S.r.l.....................................................................Italy 100.0
Envirovac Inc....................................................................USA 100.0
Sphinx Bathrooms Ltd.............................................................USA 100.0
Evac Ltda.....................................................................Brazil 100.0
Sanitec Kolo Sp.z.o.o.........................................................Poland 99.5
Scan Aqua Sp.Zo.o.............................................................Poland 100.0
Sugarlop B.V.........................................................The Netherlands 100.0
Sanitec Leasing AB............................................................Sweden 100.0
Dominio Italia S.p.A...........................................................Italy 100.0
Sanitec Italia S.p.A...........................................................Italy 100.0
Xxxxx Ginori S.p.A.............................................................Italy 100.0
Sanitec Servizi Logistici S.r.l................................................Italy 100.0
Domino S.p.A...................................................................Italy 100.0
Royal Sanitec AB..............................................................Sweden 100.0
Sanitec UK............................................................United Kingdom 100.0
Twyford Bathrooms.....................................................United Kingdom 100.0
Twyford Holdings Ltd..................................................United Kingdom 100.0
Twyford Ltd...........................................................United Kingdom 100.0
Twyford Plumbing Solutions Ltd........................................United Kingdom 100.0
Xxxxxx Ltd............................................................United Kingdom 100.0
Sanitec Service GmbH.........................................................Germany 100.0
Scandi-Aqualine Finans Aps...................................................Denmark 100.0
Schedule B-2
Exhibit A
FORM OF OPINION OF COMPANY'S ENGLISH COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(a)
(1) the Indenture constitutes a valid and legally binding obligation of the
Issuer under the laws of England and Wales enforceable thereunder
against the Issuer;
(2) when the Notes are delivered to and paid for by the Initial Purchasers
pursuant to the Purchase Agreement on 7th May 2002 (the "Closing Date")
(assuming such Notes have been duly authenticated by the Paying Agent),
the Notes will constitute valid and legally binding obligations of the
Issuer under the laws of England and Wales enforceable thereunder
against the Issuer and entitled to the benefit of the Indenture;
(3) the Purchase Agreement constitutes a valid and legally binding
obligation of the Issuer under the laws of England and Wales,
enforceable thereunder against the Issuer;
(4) the Agency Agreement constitutes a valid and legally binding obligation
of the Issuer under the laws of England and Wales enforceable
thereunder against the Issuer;
(5) the Subordination Agreement constitutes a valid and legally binding
obligation of the Issuer and the Parent under the laws of England and
Wales enforceable thereunder against the Issuer and the Parent;
(6) the PIK On-Loan Transfer and Assumption Agreement constitutes a valid
and legally binding obligation of the Issuer and the Parent under the
laws of England and Wales enforceable thereunder against the Issuer and
the Parent;
(7) the Documents conform in all material respects to the descriptions
thereof contained in the Offering Circular;
(8) no consent, approval, authorisation, or order of, or filing with, any
English governmental agency or body or any English court is required
for the consummation of the transactions contemplated by the Operative
Documents or in connection with the issuance and sale of the Notes;
(9) the execution, delivery and performance of the Operative Documents and
the issuance and sale of the Notes to the Initial Purchasers and
compliance with the terms and provisions thereof, will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under:
(A) any statute, rule, regulation or order of any English
governmental agency or body or any English court having
jurisdiction over the Issuer or the Parent or any subsidiary
of either of them or any of their properties; or
Exhibit A-1
(B) any agreement or instrument known to us to which the Issuer,
the Parent or any subsidiary of them is a party or by which
any of them is bound or to which any of the properties of any
of either of them is subject, except for any such breach,
violation or default which could not reasonably be expected to
have a Material Adverse Effect;
(10) the English courts would recognise and give effect to the choice of
English law as the governing law of the Documents and would accept
jurisdiction in connection with claims under the Documents;
(11) the English courts would recognise and give effect to the choice of
laws of the state of New York as the law governing the Registration
Rights Agreement and would accept jurisdiction in connection with
claims under the Registration Rights Agreement;
(12) the English courts would recognise and give effect to the choice of
Finnish law as the law governing the Finnish Deed of Pledge and would
accept jurisdiction in connection with claims under the Finnish Deed of
Pledge and the Notes On-Loan;
(13) the English courts would recognise and give effect to the choice of
Dutch law as the law governing the Dutch Deed of Pledge and would
accept jurisdiction in connection with claims under the Dutch Deed of
Pledge;
(14) except as disclosed in the Offering Circular, to our knowledge there
are no pending actions, suits or proceedings against the Issuer or any
subsidiary of the Issuer or any of their properties which, if
determined adversely to any of them, could individually or in the
aggregate reasonably be expected to have a Material Adverse Effect, or
would materially and adversely affect the ability of any of them to
perform their respective obligations under any of the English Law
Operative Documents or which are otherwise material in the context of
the Offering; and, to our knowledge, no such actions, suits or
proceedings are threatened or contemplated;
(15) there are no registration, filing or similar formalities required in
England and Wales in relation to the issue, sale or offering of the
Notes in the manner contemplated by the Purchase Agreement or the
performance by the Issuer of its obligations thereunder; and the
Offering Circular will not breach the provisions of any securities laws
of England and Wales, including, without limitation, the Public Offers
of Securities Regulations 1995 (as amended), the FSMA and any other
regulations, orders or rules made thereunder;
(16) insofar as any matter of English law is addressed therein, the
statements made in the Offering Circular under the headings
"Description of Notes", "Enforcement of Liabilities and Service of
Process" and "Risk Factors -The indenture and the notes are governed
by, and construed in accordance with, English law", to the extent that
they constitute matters of law or legal conclusions, fairly present the
information disclosed therein;
(17) the statements in the Offering Circular relating to English income tax
and such tax as it may be affected by a proposed draft directive of the
European Union under the heading "Taxation - United Kingdom Tax
Considerations" and "Taxation - Proposed
Exhibit A-2
EU directive on the taxation of savings income" have been reviewed by
us and fairly summarise the matters addressed therein;
(18) the description in the Offering Circular of documents governed by
English law under the headings "Summary - The Offering", "Description
of Notes" and "Description of Other Indebtedness and Certain Related
Agreements" insofar as they purport to constitute a summary of the
provisions of any of the documents described therein, fairly summarize
the provisions of such documents purported to be described;
(19) no issue, documentary, registration or other similar tax imposed by any
government department or other taxing authority of or in the United
Kingdom is payable in connection with the initial issuance and delivery
of the Notes or any transfer of the Notes, or the execution, delivery
and performance of the Purchase Agreement and the Notes by the Issuer;
(20) under English law relating to the submission to jurisdiction, the
Issuer, pursuant to Section 14 of the Purchase Agreement, Section 14.2
of the Subordination Agreement, Section 24 of the Agency Agreement and
Section 12.10 of the Indenture has validly and irrevocably submitted to
the jurisdiction of any English court in any action arising out of or
related to the Purchase Agreement, the Subordination Agreement, the
Agency Agreement or the Indenture, as the case may be, and has validly
appointed Twyford Bathrooms as its authorised agent for the purposes
described in those documents;
(21) under English law relating to the submission to jurisdiction, the
Parent, pursuant to Section 14.2 of the Subordination Agreement has
validly and irrevocably submitted to the jurisdiction of any English
court in any action arising out of or related to the Subordination
Agreement and has validly appointed Twyford Bathrooms as its authorised
agent for the purposes described in the Subordination Agreement; and
(22) Twyford Bathrooms is duly incorporated and validly existing as a
private company under the laws of England and Wales and has validly
accepted appointment as authorised agent for the Issuer under the
Purchase Agreement, Subordination Agreement, the Agency Agreement and
the Indenture and for the Parent under the Subordination Agreement.
Exhibit A-3
Exhibit B
FORM OF OPINION OF COMPANY'S UNITED STATES COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) No consent, approval, authorization or order of, or filing with, any
U.S. federal or State of New York governmental agency or body or any
U.S. federal or State of New York court is required for the
consummation of the transactions contemplated by the Specified
Documents, or in connection with the issuance and sale of the Notes,
other than as may be required under the Securities Act and the rules
and regulations thereunder with respect to the Registration Rights
Agreement and the transactions contemplated thereby and such as may be
required by U.S. state securities laws in connection with the offer and
sale of the Notes.
(2) The execution, delivery and performance of the Specified Documents and
the issuance of the Notes and the consummation of the transactions
contemplated in the Purchase Agreement and in the Offering Circular
(including the use of the proceeds from the sale of the Notes as
described in the Offering Circular under the caption "Use Of Proceeds")
and compliance by the Company with its obligations under the Specified
Documents do not and will not, result in any violation of any
applicable law, statute, rule, regulation, judgment, order, writ or
decree, known to us, of any U.S. federal or State of New York
government, government instrumentality or court, having jurisdiction
over the Company or any of its subsidiaries or any of their respective
properties, assets or operations (except for such violations,
conflicts, breaches or defaults or liens, charges or encumbrances that
would not have a Material Adverse Effect).
(3) It is not necessary in connection with (i) the offer and sale of the
Notes by the Company to the Initial Purchasers in the manner
contemplated by the Purchase Agreement or (ii) the resales of the Notes
by the Initial Purchasers in the manner contemplated by the Purchase
Agreement and the Offering Circular to register the offer and sale of
the Notes under the Securities Act or to qualify an indenture in
respect of the Notes under the U.S. Trust Indenture Act of 1939, as
amended. The Indenture is in such form that would not preclude
qualification under such Act in accordance with the provisions of the
Registration Rights Agreement.
(4) The Company is not, and after giving effect to the offer and sale of
the Notes and the application of the proceeds thereof as described in
the Offering Circular will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the 0000 Xxx.
(5) Assuming that the Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and the other parties
thereto, the Registration Rights Agreement constitutes a valid and
legally binding obligation of the Company under the laws of the State
of New York, enforceable thereunder against the Company in accordance
with its terms.
Exhibit B-1
(6) The Registration Rights Agreement conforms in all material respects to
the description thereof contained in the Offering Circular.
(7) The choice of New York law pursuant to Section ___ of the Registration
Rights Agreement is, under the laws of the State of New York, a valid
choice of law.
(8) Under the laws of the State of New York relating to submission to
jurisdiction, pursuant to Section ___ of the Registration Rights
Agreement, the Company has validly and irrevocably submitted to the
personal jurisdiction of any New York or U.S. Federal court located in
the City of New York, State of New York in any action arising out of or
related to the Registration Rights Agreement; have, to the fullest
extent permitted by law, validly and irrevocably waived any objection
to the venue of a proceeding in any such court; and [have validly
appointed CT Corporation System as their authorized agent] for the
purposes described in the Registration Rights Agreement.
(9) The descriptions in the Offering Circular under the headings
"Taxation--United States Federal Income Tax Considerations" and
"Description of the Notes", to the extent that they constitute matters
State of New York or U.S. federal law or legal conclusions with respect
thereto, while not purporting to discuss all possible consequences of
investment in the Notes, are correct in all material respects with
respect to those consequences or matters that are discussed therein.
* * * * *
Nothing has come to our attention causes us to believe that the Offering
Circular (except for financial statements and schedules therein as to which we
need make no statement), as of the date thereof and as of the Closing Time,
contained or contains any untrue statement of a material fact or omitted or
omits to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
Exhibit B-2
Exhibit C
FORM OF OPINION OF COMPANY'S LUXEMBOURG COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
(1) Each of the Company and the Parent is a company duly incorporated and
validly existing with full power to carry on its business under its
Articles of Incorporation and the laws of Luxembourg and has the power
and corporate authority to execute and deliver the Agreements, to
perform the transactions contemplated therein, to issue the Notes and
to perform its obligations under the Notes;
(2) The Agreements have been duly authorised and executed by each of the
Company and the Parent and, subject to their validity and
enforceability under (a) the laws of England and Wales with respect to
the Purchase Agreement, the Indenture, the Agency Agreement, the PIK
On-Loan Transfer and Assumption Agreement and the Subordination
Agreement, (b) the laws of the State of New York with respect to the
Registration Rights Agreement, (c) the laws of Finland with respect to
the Notes on-Loan, the Shareholder Loan Transfer and Assumption
Agreement, the PIK On-Loan Agreement II, the Finnish Shareholder Loan
Facility and the Finnish Deed of Pledge, (d) the laws of Germany with
respect to the Senior Notes Loan Subordination Agreement, and (e) the
laws of the Netherlands with respect to the Dutch Deed of Pledge, by
which they are respectively governed, constitute legal, valid and
binding obligations of the Company and the Parent, enforceable in
accordance with their respective terms;
(3) The Notes have been duly authorised, executed and delivered by the
Company, and the Notes, when authenticated pursuant to the Indenture
and paid for pursuant to the Purchase Agreement will have been duly
authenticated and will constitute legal, valid and binding obligations
of the Company enforceable against the Company in accordance with their
terms;
(4) The Offering Circular has been duly authorised by the Company;
(5) The Agreements have been signed by a person duly authorised to sign on
behalf of the Company and the Parent by the board resolutions referred
to in items 17) and 18) above;
(6) The Notes have been signed, as provided for by the Indenture, by two
persons duly authorised to sign on behalf of the Company by the board
resolutions referred to in item 17) above;
(7) The execution, delivery and performance of the Agreements and the
consummation of the transactions contemplated therein and compliance by
the Company and the Parent with their obligations provided therein, and
the issue of the Notes will not conflict with or constitute violation
of the Articles of Incorporation of the Company, or of the Parent or
Luxembourg law;
Exhibit C-1
(8) No consents, clearances, approvals, authorisations or orders of any
Luxembourg court, government department or other regulatory body are
required for the creation, offering, issue or delivery of the Notes by
the Company or the performance of its obligations thereunder or for the
execution, delivery and performance by the Company and the Parent of
the Agreements or in connection with the issuance of the Notes except
necessary filings (i) with the Luxembourg Stock Exchange and (ii) of
the NOTICE LEGALE relating to the Notes with the Greffe du Tribunal
d'Arrondissement de Luxembourg;
(9) It is not necessary in order to ensure the legality, validity,
enforceability or admissibility in evidence of the Agreements, or the
Notes that any such document be stamped or registered with any public
office in Luxembourg provided however that in case of an action before
a court in Luxembourg the relevant document(s) submitted to the court
would have to be registered if so ordered by the court (except for the
Notes) and an AD VALOREM registration tax the rate of which will depend
on the underlying agreement reflected in any such document(s) will
become payable except (i) if such amount represents a commission or
remuneration which is subject to value added tax and (ii) except in
case of enforcement proceeding in respect of a judgement obtained in
any country which is subject to the EC Regulation n(Degree) 44-2001 of
22nd December, 2000 and the Convention signed in Lugano on 16th
September, 1988 on jurisdiction and recognition and enforcement of
judgement in civil and commercial matters (the "Brussels I Regulation",
the "Brussels Convention" and the "Lugano Convention", respectively).
The tax rate for documents containing acknowledgement of debt is of
0.24% of the relevant amounts provided however registration of the
Notes will give rise to a nominal fixed tax only;
(10) Except as set out in opinion (8) above, no stamp, registration, issue
or similar duties or taxes or governmental fees and charges are payable
in connection with the execution and delivery of the Agreements and the
Notes;
(11) It is not necessary for the Initial Purchasers to be licensed or
qualified to do business in Luxembourg in order to enable them to
enforce their rights under the Purchase Agreement, or for the Trustee
to be so licensed or qualified in order to enable it to enforce its
rights and the rights of the noteholders under the Indenture or the
Notes;
(12) The Company is not required by the existing laws of Luxembourg to make
any deductions or withholding from any payment of principal or interest
under the Notes;
(13) The consummation of the transactions in the manner contemplated by the
Purchase Agreement and the Indenture will not result in the Initial
Purchasers or the Trustee being subject to any legal requirements of
registration or filing with any Luxembourg authority of any of the
documents mentioned above as having been examined by us or the Notes,
save for the filings referred to in opinion (vi) above;
(14) The Courts of Luxembourg will accept and give effect to the choice of
the laws of (a) England and Wales as the governing law of the Purchase
Agreement, the Indenture, the Agency Agreement, the PIK On-Loan
Transfer and Assumption Agreement and the Subordination Agreement and
the Notes, (b) New York law as the governing law of the Registration
Rights Agreement, (c) Finland as the governing law of the Notes On-Loan
Agreement, the Shareholder Loan Transfer and Assumption Agreement and
the Finnish Deed of Pledge, (d) Germany as the governing law of the
Senior Notes
Exhibit C-2
Loan Subordination Agreement, and (e) the Netherlands as the governing
law of the Dutch Deed of Pledge;
(15) The duties and obligations of the Trustee would, as a matter of the
provisions of Luxembourg law relating to conflicts of laws, be
determined solely by reference to English law. Accordingly, there are
no other provisions of Luxembourg law which will impose duties on the
Trustee or modify the trust relationships between the Trustee and the
holders of the Notes established pursuant to the Indenture, Luxembourg
law does not recognise the concept of trust;
Although Luxembourg has signed but not yet ratified the Hague
Convention, Luxembourg courts according to their position adopted since
1992 recognise trusts and the rights granted to a trustee if validly
constituted under the foreign laws to which they are subject and if the
special rights created and/or granted to trustees which may be unknown
in civil law apply to assets situated or deemed situated in a country
where such special rights would be recognised;
(16) Each of the Company and the Parent have an issued and outstanding
capital as set forth in the Articles of Incorporation, and according to
the Articles of Incorporation all of the issued shares of the capital
stock of each of the Company and the Parent have been validly issued
and are fully paid up;
(17) Neither the Company nor the Parent nor any of their assets are entitled
to immunity from suit, execution, attachment or other legal process in
Luxembourg;
(18) The courts in Luxembourg will give effect to the submission by the
Company to the jurisdiction of the New York courts and the appointment
of the person therein mentioned as agent for service in respect of any
action arising out of or relating to Registration Rights Agreement
which has been executed and is valid and binding on the Company.
The courts in Luxembourg will give effect to the submission by the
Company to the jurisdiction of English courts and the appointment of
the person therein mentioned as agent for service in respect of any
action arising out of or relating to the Purchase Agreement, the
Indenture, the Agency Agreement, the PIK On-Loan Transfer and
Assumption Agreement and the Subordination Agreement which have been
executed and are valid and binding on the Company, subject to the
written acceptance of the jurisdiction clause by the Company.
The courts in Luxembourg will give effect to the submission by the
Company to the jurisdiction of (a) Finnish courts with respect to the
Notes On-Loan, the PIK On-Loan Agreement II and the Finnish Deed of
Pledge, and (b) courts of Helsinki with respect to the Shareholder Loan
Transfer and Assumption Agreement and the Finnish Shareholder Loan
Facility which have been executed and are valid and binding on the
Company, subject to the written acceptance of the jurisdiction clause
by the Company.
The courts in Luxembourg will give effect to the submission by the
Company to the jurisdiction of the courts of Munich with respect to the
Senior Notes Loan Subordination Agreement which has been executed and
is valid and binding on the
Exhibit C-3
Company, subject to the written acceptance of the jurisdiction clause
by the Company.
The courts in Luxembourg will give effect to the submission by the
Company to the jurisdiction of the courts of Amsterdam with respect to
the Dutch Deed of Pledge which has been executed and is valid and
binding on the Company, subject to the written acceptance of the
jurisdiction clause by the Company;
(19) A final and conclusive judgement against the Company rendered by a New
York court in any suit, action and proceedings arising out of or in
connection with the Registration Rights Agreement would be enforced by
the Luxembourg courts subject to exequator procedure, without
re-examining the merits of the case provided the following conditions
laid down by Luxembourg law for enforcement or foreign court awards are
justified:
1. The judgement is enforceable in New York;
2. The New York court has jurisdiction over the subject matter of
the action leading to the judgement;
3. The New York court has acted in accordance with its own
procedural laws;
4. The judgement was granted following proceedings where the
counterparty had the opportunity to appear, and if it
appeared, to present a defence;
5. The New York court applied the substantive laws chosen by the
parties to govern the Registration Rights Agreement; and
6. The judgement is not contrary to the public order of
Luxembourg.
Any judgement obtained in England, Finland, Germany and the Netherlands
will be recognised and enforced by the Courts of Luxembourg and any
judgement in respect of (a) the Purchase Agreement, Indenture, Agency
Agreement, PIK On-Loan Transfer and Assumption Agreement, the
Subordination Agreement obtained against the Company in the English
Courts, (b) the Senior Notes Loan Agreement, Shareholder Loan Transfer
and Assumption Agreement, PIK On-Loan Transfer and Assumption
Agreement, PIK On-Loan Agreement I, Finnish Shareholder Loan Facility
and Finnish Deed of Pledge obtained against the Company in the Finnish
Courts and the courts of Helsinki, (c) the Senior Notes Loan
Subordination Agreement obtained against the Company in the Courts of
Munich, and (d) the Dutch Deed of Pledge obtained against the Company
in the Courts of Amsterdam would be recognised and enforced by a Court
in Luxembourg without re-litigation or re-examination or any of the
issues, subject to the conditions set out in the Brussels I Regulation
pursuant to which the recognition must not be contrary to the
Luxembourg public policy.
(20) The information in the Preliminary Offering Circular under "Service of
Process and Enforcement of Civil Liabilities", "Summary - Additional
Information", "Risk Factors - Luxembourg or other local insolvency laws
to which we may be subject may not be as favourable to you as U.S.
bankruptcy laws", "Description of Other Indebtedness and Certain
Related Agreements" but only with respect to documents to which the
Company and/or the Parent are a party, "Description of Notes" and
Exhibit C-4
"Taxation - Luxembourg Tax Considerations" in so far as they purport to
describe the provisions of the laws and documents referred to therein
are accurate, complete and fair;
(21) There is, to the best of our knowledge, no pending, or threatened any
action, suit, proceeding, inquiry or investigation, to which the
Company is or may become a party, or to which the property of the
Company is or may become subject, before or brought by any court in
Luxembourg, which might reasonably be expected to result in a Material
Adverse Effect (as such term is defined in the Purchase Agreement), or
which might reasonably be expected to materially and adversely affect
the properties thereof or the consummation of the transactions
contemplated in the Purchase Agreement or the performance by the
Company of its obligations thereunder or the transactions contemplated
by the Offering Circular;
(22) The obligations of the Company under the Documents will rank at least
PARI PASSU with all their other unsecured, non-subordinated obligations
other than those preferred by statute, and with the exception of any
rights of set-off or counter-claim which may be asserted against the
Company; and
(23) To the best of our knowledge, neither the Company nor the Parent is in
violation of its Articles of Incorporation and no default by the
Company and the Parent exists in the due performance or observance of
any material obligation, agreement, covenant or condition contained in
any of the Documents.
Exhibit C-5
Exhibit D
FORM OF OPINION OF COMPANY'S FINNISH COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(d)
(1) Sanitec Oy is duly organised and validly existing under the laws of
Finland;
(2) Sanitec Oy has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Offering
Circular;
(3) Assuming that the Finnish Deed of Pledge, Shareholder Loan Transfer and
Assumption Agreement, Finnish Shareholder Loan Facility, PIK On-Loan
Agreement II, and Notes On-Loan (jointly "Finnish Law Operative
Documents") have been duly authorised by all requisite corporate action
by the Company, each Finnish Law Operative Document will constitute
legal, valid and binding obligations of the Company, enforceable
against the Company pursuant to Finnish law in accordance with their
respective terms;
(4) The Shareholder Loan Transfer and Assumption Agreement, Finnish
Shareholder Loan Facility, PIK On-Loan Agreement II and Notes On-Loan
have been duly authorised by all requisite corporate action by Sanitec
and each constitute legal, valid and binding obligations of Sanitec,
enforceable against Sanitec in accordance with their respective terms;
(5) All the Finnish Law Operative Documents conform in all material
respects to the descriptions thereof contained in the Offering
Circular;
(6) All Finnish Law Operative Documents are in appropriate form to be
admissible to evidence in the courts of Finland (after translation into
the Finnish or Swedish language);
(7) The execution and delivery by the Company of the Finnish Deed of Pledge
does not conflict with or result in a violation of the Articles of
Association of Sanitec, or the provisions of any law, rule or
regulation of Finland;
(8) The shares of issued and outstanding capital stock of Sanitec pledged
under the Finnish Deed of Pledge have been duly authorised and validly
issued and are fully paid, non-assessable and on record owned by the
Company; and none of the outstanding shares of capital stock of Sanitec
was issued in violation of the pre-emptive or other similar rights of
any security holder of Sanitec. However, no share certificates
evidencing the shares have been issued by Sanitec;
(9) The Finnish Deed of Pledge constitutes the legal, valid and binding
obligations of the Company, and the Finnish Deed of Pledge will create
valid security interests in accordance with such agreement enforceable
in accordance with its respective terms provided, however, that the
second priority pledge over the Sanitec Shares is perfected in the
manner provided for in the Finnish Deed of Pledge.
Exhibit D-1
(10) The beneficiaries which are parties to Finnish Law Operative Documents
will be entitled to xxx the Company or Sanitec in a competent court in
Finland and to enforce the rights thereunder;
(11) There are no consents, authorizations or approvals of, or filings with,
any state governmental or municipal authority or any regulatory
authority in Finland required in connection with Operative Documents to
ensure the legality and validity thereof or the obligations thereunder.
(12) Based on our review of the Sanitec's register of shares and relying on
Section 6 of the Officer's Certificate of the Company there are no
other security interests, pledges, liens or encumbrances over the
capital stock of Sanitec than a first priority pledge of the shares of
Sanitec in favour of the lenders under the senior credit facility
described in the Offering Circular;
(13) There are no registration taxes, transfer taxes, stamp taxes or other
duties of similar kind payable in Finland as a matter of Finnish law in
connection with the execution of performance of the Finnish Law
Operative Documents;
(14) In any proceedings taken in Finland pursuant to Finnish Law Operative
Document, neither the Company nor Sanitec will be entitled to claim for
itself or any of its assets immunity from suit, execution attachment or
other legal process;
(15) The choice of Finnish law as the governing law of Finnish Law Operative
Documents, and the jurisdiction clause contained therein will be valid
and binding and will be upheld, recognized and given effect by the
courts of Finland;
(16) The choice of either Dutch law, English law or New York law as the
governing law of the Operative Documents (other than Operative
Documents governed by Finnish law), will be recognized and given effect
by the courts of Finland and the provisions therein for the submission
of the Company to the jurisdiction of the courts of England, the
Netherlands and the U.S. federal and New York state courts as legal,
valid and binding on the Company and Sanitec;
(17) A final judgment for a definite sum given by courts of England or
Luxembourg [New York needs to be covered] against the Company in an
action instituted in accordance with the terms and provisions of any
Operative Document will be enforceable in Finland subject to the
application and applicability of the Brussels Convention on
Jurisdiction and the Enforcement of Judgements in Civil and Commercial
Matters of 1968 and the protocols relating thereto;
(18) Neither the execution of the Operative Documents nor the performance by
the Company or Sanitec of its obligations under the Operative Documents
conflict with or result in a violation of the Articles of Association
of Sanitec or any law, rule or regulation of the Republic of Finland;
(19) The information in the Offering Circular under "Summary - The
Transactions" in relation to merger of Sanitec Oyj, "Summary - The
Issuer" in relation to the first priority pledge of Sanitec shares,
"The right to remedies under the notes security pledge are limited" in
relation to the first and second priority pledges of Sanitec
Exhibit D-2
shares, "The Transactions" in relation to the merger of Sanitec Oyj and
in relation to Sanitec's owner, "Description of Other Indebtedness and
Certain Related Agreements - PIK Loan, Shareholder Loan" in relation to
the loans described therein, "Description of Other Indebtedness and
Certain Related Agreements - Notes Security Pledge" in relation to the
first and second priority pledge of Sanitec shares, "The Description of
Notes - Security" in relation to the first and second priority pledges
of Sanitec shares, "The Description of Notes - The Notes On-Loan, the
PIK On-Loan 2 and the Shareholder On-Loan 2" in relation to the loans
described therein so far as they purport to describe provisions of the
laws of the Republic of Finland, actions taken under Finnish law or
documents governed by Finnish law are accurate and fair.
Exhibit D-3
