Exhibit 10.8
Execution Version
L O A N F A C I L I T Y A G R E E M E N T
(THE "AGREEMENT")
BETWEEN
Pool Acquisition S.A., 00-00 xxxxxxxxx xx Xxxxxx Xxxxx, X-0000 Xxxxxxxxxx,
Grand-Duche de Luxembourg,
- hereinafter referred to as the "BORROWER" -
and
the investors as named in detail in SCHEDULE 1
- hereinafter each of the investors referred to as the "LENDER" or "LENDERS" -
PRELIMINARY REMARK, DEFINITIONS
(1) The Lender is the shareholder of the Borrower. The Borrower holds
approximately 93 % of all shares in Sanitec International S.A. ("LUX NEWCO
II"), a company with limited liability duly established and organised
under the laws of Luxembourg.
(2) Lux NewCo II indirectly owns, through Pool Acquisition Netherlands 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 . 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) a senior
multicurrency term loan and revolving 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)
a 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
Execution Version
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").
(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 "SHAREHOLDER LOAN") consisting
of one facility in the total principal amount of:
(euro)312,043,586 (the "PRINCIPAL")
as shown in further detail in SCHEDULE 1 hereto.
(2) The Borrower has already received the loan proceeds or the equivalent.
Execution Version
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 shareholder loan shall not be
terminated other than if requested by the Banks, if and as long as the
shareholder loan is contractually subordinated to the claims of the Banks
under the Bank Loans and 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 facility at any time.
SECTION 3
INTEREST
(1) The Shareholder Loan shall bear interest on a daily basis (actual/360
days) at a rate of
7.125 % p.a.,
starting on January 1, 2002. . 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.
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.
Execution Version
(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.
SECTION 5
PRIORITY OF SHAREHOLDER 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 PIK Loan in as far as provided in
any respective subordination agreement.
(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: Xxx Xxxxxx, Xxxxxxxxxxxx(xxxx)x 0, 00000 Xxxxxxxxx,
Xxxxxxxxx +49-711/ 9764-933
b) the Lender names: 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.
Execution Version
(2) The forum for all disputes from or in connection with this Agreement shall
be Luxembourg.
(3) The rights and obligations of the Lenders under this Agreement are
separate and independent from the rights and obligations of each other
Lender. Each Lender can exercise its rights under this Agreement
separately without prejudice to the rights of each of the other Lenders.
Each Lender may take proceedings against the Borrower without involving
any other Lender. Any representation or declaration of the Borrower
addressed to one Lender is not deemed to be also addressed to another
Lender.
(4) 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.
(5) 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.
(6) Clause Section 7 (5) above shall apply accordingly if this Agreement is
incomplete.
........................................................................
..................................................
Pool Acquisition S.A.
........................................................................
Signed for and on behalf of each of the following:
________________________________
Execution Version
CIE Management II Limited as Managing General Partner of BC European Capital
VII-1, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. Julian's Avenue, St. Xxxxx Port,
Guernsey, Channel Islands;
CIE Management II Limited as Managing General Partner of BC European Capital
VII-2, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. Julian's Avenue, St. Xxxxx Port,
Guernsey, Channel Islands;
CIE Management II Limited as Managing General Partner of BC European Capital
VII-3, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. Julian's Avenue, St. Xxxxx Port,
Guernsey, Channel Islands;
CIE Management II Limited as Managing General Partner of BC European Capital
VII-4, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. Julian's Avenue, St. Xxxxx Port,
Guernsey, Channel Islands;
CIE Management II Limited as Managing General Partner of BC European Capital
VII-5, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. Julian's Avenue, St. Xxxxx Port,
Guernsey, Channel Islands;
CIE Management II Limited as Managing General Partner of BC European Capital
VII-6, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. Julian's Avenue, St. Xxxxx Port,
Guernsey, Channel Islands;
CIE Management II Limited as Managing General Partner of BC European Capital
VII-7, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. Julian's Avenue, St. Xxxxx Port,
Guernsey, Channel Islands;
CIE Management II Limited as Managing General Partner of BC European Capital
VII-8, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. Julian's Avenue, St. Xxxxx Port,
Guernsey, Channel Islands;
CIE Management II Limited as Managing General Partner of BC European Capital
VII-9, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. Julian's Avenue, St. Xxxxx Port,
Guernsey, Channel Islands;
CIE Management II Limited as Managing General Partner of BC European Capital
VII-10, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. Julian's Avenue, St. Xxxxx Port,
Guernsey, Channel Islands;
CIE Management II Limited as Managing General Partner of BC European Capital
VII-11, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. Julian's Avenue, St. Xxxxx Port,
Guernsey, Channel Islands;
CIE Management II Limited as Managing General Partner of BC European Capital
VII-12, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. Julian's Avenue, St. Xxxxx Port,
Guernsey, Channel Islands;
CIE Management II Limited as Managing General Partner of BC European Capital
VII-14, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. Julian's Avenue, St. Xxxxx Port,
Guernsey, Channel Islands;
CIE Management II Limited as Managing General Partner of BC European Capital
VII-15, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. Julian's Avenue, St. Xxxxx Port,
Guernsey, Channel Islands;
CIE Management II Limited as Managing General Partner of BC European Capital
VII-16, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. Julian's Avenue, St. Xxxxx Port,
Guernsey, Channel Islands;
CIE Management II Limited as Managing General Partner of BC European Capital
VII-17, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. Julian's Avenue, St. Xxxxx Port,
Guernsey, Channel Islands;
CIE Management II Limited as Managing General Partner of BC European Capital VII
Top-Up 1, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. Julian's Avenue, St. Xxxxx Port,
Guernsey, Channel Islands;
CIE Management II Limited as Managing General Partner of BC European Capital VII
Top-Up 2, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. Julian's Avenue, St. Xxxxx Port,
Guernsey, Channel Islands;
CIE Management II Limited as Managing General Partner of BC European Capital VII
Top-Up 3, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. Julian's Avenue, St. Xxxxx Port,
Guernsey, Channel Islands;
CIE Management II Limited as Managing General Partner of BC European Capital VII
Top-Up 4, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. Julian's Avenue, St. Xxxxx Port,
Guernsey, Channel Islands;
CIE Management II Limited as Managing General Partner of BC European Capital VII
Top-Up 5, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. Julian's Avenue, St. Xxxxx Port,
Guernsey, Channel Islands;
CIE Management II Limited as Managing General Partner of BC European Capital VII
Top-Up 6, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. Julian's Avenue, St. Xxxxx Port,
Guernsey, Channel Islands;
Blue Capital Equity X XxxX & Xx. XX, Xxxxx Xxxx 00, 00000 Xxxxxxx Teabar Capital
Corporation, 0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx X0X 0X0;
Southlight Investment Pte Ltd, 000 Xxxxxxxx Xxxx, #00-00 Xxxxxxx Xxxxx,
Xxxxxxxxx 000000, Republic of Singapore; CDPQ Europe Inc., 0000, xxxxxx XxXxxx
Xxxxxxx, Xxxxxxxx, Xxxxxx, Xxxxxx;
HVB Offene Xxxxxxxxxxxxxxxxxxxxxxxx XX, Xx Xxxxxxxxxx 0, 00000 Xxxxxxx;
Xxxxxx Xxxxxxx, 00 xxx Xxxxxx xx Xxxx, 00000 Xxxxx, Xxxxxx;
Execution Version
Xxxxxx Xxxxxxxxxx, 000 Xxxxxxxxx Xxxxx-Xxxxxxx, 00000 Xxxxx, Xxxxxx;
Xxxxxx-Xxxxxxx Xxxxxxx, 00 xxx Xxxxxxxx, 00000 Xxxxx, Xxxxxx;
Xxxxxxx Xxxxxxx, 00 xxx Xxxxxx xx Xxxx, 00000 Xxxxx, Xxxxxx;
