Exhibit 10.9
EXECTUION VERSION
F I N N I S H S H A R E H O L D E R L O A N
F A C I L I T Y A G R E E M E N T
(THE "AGREEMENT")
BETWEEN
Sanitec Oy, Xxxxxxxxx 00X, 00000 Xxxxxxxx
- hereinafter referred to as the "BORROWER" -
and
Sanitec International S.A., 00-00 xxxxxxxxx xx Xxxxxx Xxxxx, X-0000 Xxxxxxxxxx,
Grand- Duche de Luxembourg
- hereinafter referred to as the "LENDER" -
PRELIMINARY REMARK, DEFINITIONS
(1) The Lender indirectly owns, through Pool Acquisition Netherlands B.V. (in
liquidation), 100 % of all shares in the Borrower. The Lender has received
a loan (the "on-loan") from its parent Pool Acquisition S.A., which was
made from the proceeds of a loan Pool Acquisition S.A.'s shareholders
granted to it pursuant to a Loan Facility Agreement (the "LOAN FACILITY
AGREEMENT"), and wishes to on-lend the proceeds of the on-loan to the
Borrower and the Borrower wishes to accept such loan pursuant to the terms
of this agreement (references herein to the Loan Facility Agreement also
include any agreement that refinances it).
(2) The Borrower is the surviving company from the merger of Pool Acquisition
Helsinki Oy with Sanitec Corporation, which took place after Pool
Acquisition Helsinki Oy acquired 100 % of the shares of Sanitec
Corporation, a company incorporated and existing under the laws of Finland
having its registered office in Helsinki, Finland .
(3) The funds necessary for the acquisition described under para. (2) above
have been made available to the Borrower by its shareholders in the form
of equity and loan capital provided by the banks being party to (i) the
senior multicurrency term loan and revolving credit facilities agreement
between inter alia Bayerische Hypo- und Vereinsbank AG as Arranger and the
Borrower dated 26 April 2001 as amended (the "SENIOR FACILITY AGREEMENT")
and (ii) a junior facility agreement between inter alia Bayerische Hypo-
und Vereinsbank AG as Arranger and Pool Financing Helsinki Oy, a company
with
EXECTUION VERSION
limited liability duly established and organised under the laws of
Finland, dated 26 April 2001 as amended (the "JUNIOR FACILITY AGREEMENT");
the proceeds received under the Junior Facility Agreement have been on
lent to the Borrower via a junior on-loan agreement (the "JUNIOR ON-LOAN
AGREEMENT"). The loans being granted pursuant to the agreements named
under (i) and (ii) are hereinafter referred to as the "BANK LOANS" and the
banks being parties to these loan agreements are referred to as "THE
BANKS").
(4) A portion of the loan granted under the Senior Facility Agreement has been
refinanced by a pik loan (the "PIK LOAN") under a pik loan agreement (the
"PIK LOAN AGREEMENT") initially entered into by Pool Sub-Financing
Helsinki Oy, a company with limited liability duly established and
organised under the laws of Finland (the "FIN NEWCO III"), as borrower and
Bayerische Hypo- und Vereinsbank AG as lender (the "PIK LENDER")
(references herein to the PIK Loan Agreement, PIK Loan and PIK Lender
shall include any agreement that refinances the PIK Loan Agreement, and
the loan made and lender under such agreement). FinNewCo III on lent the
proceeds from the PIK Loan to Pool Financing Helsinki Oy, a company with
limited liability duly established and organised under the laws of Finland
(the "FIN NEWCO II)"), under a pik on-loan agreement (the "PIK ON-LOAN
AGREEMENT I") and FinNewCo II then on lent the proceeds to the Borrower
under a pik on-loan agreement II (the "PIK ON-LOAN AGREEMENT II").
(5) It is intended that the Lender issues senior notes pursuant to a trust
indenture (the "NOTES") the proceeds of which shall be on lent to the
Borrower under an on-loan agreement (the "SENIOR NOTES LOAN AGREEMENT").
The Borrower shall use the proceeds to prepay the loan granted from Fin
NewCo II under the Junior On-Loan Agreement and Fin NewCo II shall then
prepay the loan granted under the Junior Facility Agreement.
(6) Capitalised terms used herein shall have the same meaning as defined in
the Senior Facility Agreement unless expressly otherwise defined in this
Agreement.
Whereas the parties involved conclude the following:
L O A N F A C I L I T Y
SECTION 1
LOAN
(1) The Lender grants the Borrower a loan (the "LOAN") consisting of one
facility in the total principal amount of:
(euro)312,043,586 (the "PRINCIPAL")
EXECTUION VERSION
(2) The Borrower has already received the Loan proceeds or the equivalent.
SECTION 2
DURATION, TERMINATION
(1) The duration of this Agreement is 15 years.
(2) The Loan can be terminated by the Lender by notice of three months to the
end of a quarter, provided that the Loan shall not be terminated other
than if requested by the Banks, if and as long as the Loan is
contractually subordinated either to (i) the claims of the Banks under the
Senior Facility Agreement and the Junior Facility Agreement, pursuant to a
subordination agreement (the "Subordination Agreement") or (ii) the claims
of holders of the Notes, or (iii) the claims of the PIK Lender under the
PIK Loan Agreement.
(3) Subject to any subordination pursuant toss.2 para (2) andss.5, the
Borrower is entitled to terminate the Loan at any time.
SECTION 3
INTEREST
(1) The Loan shall bear interest on a daily basis (actual/360 days), starting
on January 1, 2002, at a rate that is the same as the interest rate on the
Loan Facility Agreement, and from the date of effectiveness of this
agreement at a rate that is 0.0625 % higher than the interest rate of the
Loan Facility Agreement.
The parties agree to increase or reduce the interest rate by up to 1.0 %
(100 basis points) if either party reasonably requests such increase or
reduction in order to reflect market practice. The parties acknowledge
that the issuance of the Notes and the on-lending of the proceeds thereof
to the Borrower under the Senior Notes Loan Agreement might require that
the interest rate of the Loan be increased in order to reflect a market
practice xxxx up. In such case the parties agree to negotiate an
appropriate interest rate for the Loan.
(2) Each year, on 31 December at 12:00 AM, any unpaid accrued interest shall
be capitalized to the Principal and the Principal shall be increased by
such amount.
EXECTUION VERSION
(3) The interest shall be paid to the Lender in monthly part payments on the
third working day of the following month for an account of the Lender
still to be notified. However, as long as the claims of the Lender are
subordinated pursuant to Section 2 and Section 5, the Borrower is not
obliged to but may upon its own discretion pay interest provided that this
is permitted under the subordination agreements referred to in Section 5.
SECTION 4
REPAYMENT
(1) The Borrower is only obliged to repay the Principal and any uncapitalized
interest in the event of termination of this Agreement or on expiry of the
term set out in Section 2 para 1, subject to any subordination pursuant to
ss. 2 and Section 5.
(2) Subject to any subordination pursuant to Section 2 and Section 5, the
Borrower may repay the Principal in whole or in instalments of at least
EUR 25,000.00 prematurely according to its due discretion. In this event,
the Lender shall not be entitled to compensation for premature payment. In
case of a prepayment of the whole outstanding Principal, the Borrower has
to pay the interest on such outstanding Principal on the date of the
premature prepayment. In addition, subject to the Subordination Agreement,
the Borrower may repay the Loan to the extent that it may be repaid
pursuant to the terms of the indenture governing the Notes.
SECTION 5
PRIORITY OF THE LOAN
(1) The parties acknowledge and approve that the repayment of the Principal
and the uncapitalized interest are subordinate in priority to the
repayment of the Bank Loans and/or Notes and/ or the PIK Loan in as far as
provided in any respective subordination agreement and/or the Notes.
(2) The Principal (including capitalised interest) and any uncapitalized
interest and other remuneration thereon shall, upon the dissolution of the
Borrower or in the bankruptcy of the Borrower, be subordinated to all
other debts. The subordination is irrevocable.
SECTION 6
NOTIFICATIONS
For the acceptance of declarations and services
a) the Borrower names: Xxxx Xxxxx and Xxxx Xxxxxxxxxxx
EXECTUION VERSION
Sanitec Oy- Xxxxxxxxx 00X, 00000 Xxxxxxxx
Facsimile x000-0000-0000
b) the Lender names: Xx. Xxxxxx Xxxxx, 00-00 xxxxxxxxx xx Xxxxxx Xxxxx,
X-0000 Xxxxxxxxxx,
Xxxxxxxxx +352/ 26 26 89-8 34
with copies to: Xxxx Xxxxx and Xxxx Xxxxxxxxxxx
Sanitec Oy- Xxxxxxxxx 00X, 00000 Xxxxxxxx
Facsimile x000-0000-0000
SECTION 7
FINAL PROVISIONS
(1) This Agreement shall be subject to the law of Finland.
(2) The forum for all disputes from or in connection with this Agreement,
including those concerning the validity of this agreement, shall be the
courts of Finland, the District Court of Helsinki being the court of first
instance.
(3) If any of the provisions of this Agreement should be or become invalid, in
whole or in part, the validity of the remaining provisions shall not be
affected. In such a case, the parties shall agree a provision in place of
the invalid provision which, as far as possible, has the same legal and
economic effect as the invalid provision.
(4) If the provisions of this Agreement are ambiguous they shall be
interpreted in a manner which best reflects the spirit, contents and
purpose of this Agreement. Such interpretation should be based on the
agreement the parties would have reached had they been aware of the
ambiguity.
(5) Clausess.7 (4) above shall apply accordingly if this Agreement is
incomplete.
........................................................................
..................................................
Sanitec Oy
EXECTUION VERSION
........................................................................
Sanitec International S.A.
