Exhibit 10.10
Execution Version
LUXEMBOURG 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 I
(THE "AGREEMENT")
BETWEEN
Sanitec International S.A., 00-00 xxxxxxxxx xx Xxxxxx Xxxxx, X-0000 Xxxxxxxxxx,
Grand- Duche de Luxembourg
- hereinafter referred to as the "BORROWER" -
and
Pool Acquisition 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 holds approximately 93 % of all shares in the Borrower. The
Borrower indirectly owns, through Pool Acquisition Netherland B.V. (in
liquidation), 100 % of all shares in Sanitec Oy ("FIN NEWCO I"), a limited
liability company established and organised under the laws of Finland,
registered with the trade register of Finland under Company ID number
1700086-7, with registered address in Helsinki, Finland . The Lender has
received a loan from its shareholders pursuant to a Loan Facility
Agreement (the "LOAN FACILITY AGREEMENT") and wishes to on-lend the
proceeds of that 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) Fin NewCo I 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 that was incorporated and existed 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 Fin NewCo I 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
Execution Version
credit facilities agreement between inter alia Bayerische Hypo- und
Vereinsbank AG as Arranger and Fin NewCo I dated 26 April 2001 as amended
(the "SENIOR FACILITY AGREEMENT") and (ii) the junior facility agreement
between inter alia Bayerische Hypo- und Vereinsbank AG as Arranger and
Pool Financing Helsinki Oy, a company with 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 Fin NewCo I 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 FinNewCo I
under a pik on-loan agreement II (the "PIK ON-LOAN AGREEMENT II").
(5) 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")
Execution 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) to the
claims of holders of notes (the "NOTES") issued by either the Borrower or
an affiliate of the Borrower pursuant to a trust indenture.
(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.
(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.
(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.
Execution Version
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 Section 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 the Borrower may repay the Loan to the
extent that it may be repaid pursuant to the terms of the indenture
governing the notes issued by the Borrower.
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 the Notes 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: 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
Execution Version
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: Xx. Xxx Xxxxxx, Xxxxxxxxxxxx(xxxx)x 0, 00000 Xxxxxxxxx,
Xxxxxxxxx +49-711 / 9764-933
SECTION 7
FINAL PROVISIONS
(1) This Agreement shall be subject to the law of Luxembourg.
(2) The forum for all disputes from or in connection with this Agreement shall
be Luxembourg.
(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) Clause Section 7 (4) above shall apply accordingly if this Agreement is
incomplete.
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Sanitec International S.A.
................................., .......................................
Pool Acquisition S.A.
