Exhibit 10.7
Execution Version
SHAREHOLDER LOAN TRANSFER AND ASSUMPTION AGREEMENT
(the "AGREEMENT")
between
1. The Investors as named in detail in SCHEDULE 1 ("INVESTORS")
2. Sanitec Oy, Xxxxxxxxx 00X, 00000 Xxxxxxxx ("FIN NEWCO I")
3. Sanitec International S.A., 00-00 xxxxxxxxx xx Xxxxxx Xxxxx, X-0000
Xxxxxxxxxx, Xxxxx-Xxxxx de Luxembourg ("LUX NEWCO II")
and
4. Pool Acquisition S.A., 00-00 xxxxxxxxx xx Xxxxxx Xxxxx, X-0000 Xxxxxxxxxx,
Xxxxx-Xxxxx xx Xxxxxxxxxx ("LUX NEWCO")
PREAMBLE:
1. Fin NewCo I is a 100% subsidiary of Lux NewCo II and Lux NewCo II is
approximately a 93% subsidiary of Lux NewCo.
2. By shareholder loan agreement dated 26 April 2001 as amended on 06 June
2001 and 11 October 2001 (the "SHAREHOLDER LOAN AGREEMENT") some of the
Investors granted a shareholder loan facility to Pool Acquisition Helsinki
Oy, the legal predecessor of Fin NewCo I. By way of transfer agreements
dated 12 October 2001 each of the Investors transferred a portion of the
shareholder loan to new investors. The portions of the shareholder loans to
be allocated to each of the Investors are shown in SCHEDULE 1.
3. Fin NewCo I is a borrower under a (i) senior multicurrency term loan and
revolving credit facilities agreement dated 26 April 2001 (as amended,
novated, supplemented, superseded or extended from time to time)
(the"SENIOR FACILITY AGREEMENT"), and (ii) an on-loan agreement with Pool
Financing Helsinki Oy, a company with limited liability established under
the laws of Finland (the "FIN NEWCO II"), dated 26 April 2001 (the "JUNIOR
ON-LOAN AGREEMENT") by which the proceeds received by Fin NewCo II under a
junior loan facility agreement dated 26 April 2001 (as amended, novated,
supplemented, superseded or extended from time to time) (the "JUNIOR
FACILITY AGREEMENT") have been on lent to Fin NewCo I.
4. Fin NewCo I is also borrower under a pik on-loan agreement dated 19
December 2001 (hereinafter referred to as "PIK ON-LOAN AGREEMENT II") with
Fin NewCo II.
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5. Fin NewCo I intends to refinance the loan facility granted under the Junior
Facility Agreement with the proceeds from the issuance of senior notes by
Lux NewCo II (the "SENIOR NOTES"). As the issuance of Senior Notes requires
that all other indebtedness is subordinated to, or at least only ranks pari
passu to the claims of the holders of the Senior Notes and as this would
not be acceptable for the lending banks under the Senior Facility Agreement
and the Junior Facility Agreement it is necessary to establish a structural
subordination instead of a contractual subordination. Therefore, Fin NewCo
I and Lux NewCo II agreed that Lux NewCo II shall issue the Senior Notes
and on lend the proceeds therefrom to Fin NewCo I.
6. As it is market practice and as it has been requested by the investment
banks advising in connection with the issuance of the Senior Notes that the
claims of the Investors under the Shareholder Loan Agreement are themselves
structurally subordinated to the claims of the holders of the Senior Notes,
the Investors, Fin NewCo I, Lux NewCo II and Lux NewCo have agreed to
establish a structure in which the proceeds currently granted to Fin NewCo
I under the Shareholder Loan Agreement will be granted to Lux NewCo, then
on lent to Lux NewCo II and then on lent to Fin NewCo I. In order to
achieve such structure it is intended that the Investors contribute their
claims under the Shareholder Loan Agreement (save for a portion of up to
EUR 30,000 which be directly lent to Lux NewCo II or Fin NewCo III) to Lux
NewCo II against a repayment claim towards Lux NewCo II under a new
shareholder loan facility agreement and that the claims of the Investors
thereunder are then contributed to Lux NewCo against a repayment claim
towards Lux NewCo under a further new shareholder loan facility agreement.
NOW, THEREFORE, IT IS AGREED as follows:
1. DEFINITIONS
Capitalised terms used herein shall have the same meaning as defined in the
Shareholder Loan Agreement unless expressly otherwise defined in this
Agreement.
2. AMENDMENT OF SHAREHOLDER LOAN AGREEMENT
2.1 The loan (the "Shareholder Loan") shall consist of one facility in the
total principal amount of:
(euro) 312,043,586
as shown in further detail in SCHEDULE 1 hereto.
The parties who are borrowers under and/or will on lend the Shareholder
Loan have already received the loan proceeds or the equivalent.
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2.2 The details of the Shareholder Loans are shown in SCHEDULE 2.
3. TRANSFER I
3.1 The Investors hereby expressly transfer all their rights and
obligations (including but not limited to claims of interest) under
the Shareholder Loan Agreement to Lux NewCo II. Lux NewCo II accepts
such transfer and expressly assumes the obligations under the
Shareholder Loan .
3.2 Fin NewCo I hereby expressly consents to the assumption of all
liabilities and obligations by Lux NewCo II as set out in subsection
3.1 and expressly approves the assignment of all rights of the
Investors under the Shareholder Loan Agreement to Lux NewCo II as set
forth in subsection 3.1.
3.3 In consideration for the transfer of all rights under the Shareholder
Loan Agreement pursuant to subsection 3.1 the Investors and Lux NewCo
II enter into a shareholder loan agreement (the "LUXEMBOURG
SHAREHOLDER LOAN FACILITY AGREEMENT I") provided that the obligation
of the Investors to grant the facility thereunder shall be fulfilled
by the transfer pursuant to subsection 3.1.
4. TRANSFER II
4.1 The Investors hereby expressly transfer all their rights and
obligations under the Luxembourg Shareholder Loan Facility Agreement
I to Lux NewCo. Lux NewCo accepts such transfer and expressly assumes
the obligations thereunder.
4.2 Lux NewCo II hereby expressly consents to the assumption of all
liabilities and obligations by Lux NewCo as set out in subsection 4.1
and expressly approves the assignment of all rights of the Investors
under the Luxembourg Shareholder Loan Facility Agreement I to Lux
NewCo as set forth in subsection 4.1.
4.3 In consideration for the transfer of all rights pursuant to
subsection 4.1 the Investors and Lux NewCo shall enter into a
shareholder loan agreement in the form as attached hereto as Schedule
2 provided that the obligation of the Investors to grant the facility
thereunder shall be fulfilled by the transfer pursuant to subsection
4.1.
4.4 The Luxembourg Shareholder Loan Facility Agreement I shall be amended
and restated in the form as set out in Schedule 3.
4.5 The shareholder loan agreement between Fin NewCo I and Lux NewCo II
(after the transfer pursuant to subsection 3.1) shall be amended and
restated in the form as attached hereto as Schedule 4.
Execution Version
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5. CONDITION PRECEDENT
The transfers and the assumptions and the conclusion and restatement of the
loan agreements as set forth under sections 2, 3, and 4 are subject to the
issuance of the Senior Notes having been completed. This condition can be
waived with effect for all parties to this Agreement by Lux NewCo II or Fin
NewCo I.
6. LAW
This Agreement shall be governed by and construed in accordance with the
laws of Finland.
7. AMENDMENT
Any amendment to or variation of this Agreement shall be made in writing in
order to be valid and binding upon the parties hereto. The parties hereto
may not waive the form requirement of writing other than in writing by
signing an amendment hereto.
8. JURISDICTION
The ordinary courts of Helsinki shall have jurisdiction in respect of any
dispute arising out of or in connection with this Agreement including its
validity.
9. PARTIAL INVALIDITY
If at any time any provision hereof or part thereof is or becomes illegal,
invalid or unenforceable, the legality, validity or enforceability of the
remaining provisions hereof shall in no way be affected or impaired
thereby. The illegal, invalid or unenforceable provision shall be deemed to
be substituted by a valid, legal and enforceable provision, which reflects
the intention of the parties hereto to the extent that this is legally
possible.
Signed for and on behalf of:
Sanitec International S.A.
________________________________
Sanitec Oy
Execution Version
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________________________________
Pool Acquisition S.A.
________________________________
Signed for and on behalf of each of the following:
________________________________
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;
Execution Version
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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;
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;
Execution Version
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SCHEDULE 1
THE INVESTORS
Investor PRINCIPAL AMOUNT OF
SHAREHOLDER LOAN IN FIN NEWCO I
BC European Capital VII-1, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)19,963,880
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII-2, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)19,892,749
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII-3, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)19,424,909
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII-4, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)19,397,549
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII-5, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)19,260,754
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII-6, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)19,151,319
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII-7, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)19,835,294
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII-8, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)19,660,196
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII-9, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)19,102,073
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII-10, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)17,050,146
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII-11, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)2,735,903
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII-12, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)1,915,132
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII-14, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)1,367,951
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII-15, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)1,641,541
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital XXX-00, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (xxxx) 164,154
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital XXX-00, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (xxxx) 54,718
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII Top-Up 1, XX Xxx 000, Xxxxxxxx Xxxxx, (xxxx)0,000,000
St. Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
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Investor PRINCIPAL AMOUNT OF
SHAREHOLDER LOAN IN FIN NEWCO I
BC European Capital VII Top-Up 2, XX Xxx 000, Xxxxxxxx Xxxxx, (xxxx)0,000,000
St. Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII Top-Up 3, XX Xxx 000, Xxxxxxxx Xxxxx, (xxxx)0,000,000
St. Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII Top-Up 4, XX Xxx 000, Xxxxxxxx Xxxxx, (xxxx)0,000,000
St. Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII Top-Up 5, XX Xxx 000, Xxxxxxxx Xxxxx, (xxxx)0,000,000
St. Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII Xxx-Xx 0, XX Xxx 000, Xxxxxxxx Xxxxx, (xxxx) 379,797
St. Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
Blue Capital Equity I GmbH & Co. KG, Alter Wall 22, 20457 (euro)3,704,412
Hamburg
Teabar Capital Corporation, 0000 Xxxxx Xxxxxx, Xxxxx 000, (euro)24,288,011
Toronto, Ontario M2M 4H5
Southlight Investment Pte Ltd, 000 Xxxxxxxx Xxxx, #00-00 (xxxx)00,000,000
Xxxxxxx Xxxxx, Xxxxxxxxx 000000, Republic of Singapore
CDPQ Europe Inc., 0000, xxxxxx XxXxxx Xxxxxxx, Xxxxxxxx, (xxxx)00,000,000
Xxxxxx, Xxxxxx
HVB Offene Xxxxxxxxxxxxxxxxxxxxxxxx XX, Xx Xxxxxxxxxx 0, 00000 (xxxx) 7,093,084
Munchen
Xxxxxx Xxxxxxx, 00 xxx Xxxxxx xx Xxxx, 00000 Xxxxx, Xxxxxx (euro) 18,993
Xxxxxx Xxxxxxxxxx, 000 Xxxxxxxxx Xxxxx-Xxxxxxx, 00000 Xxxxx, (euro) 3,800
France
Xxxxxx-Xxxxxxx Xxxxxxx, 00 xxx Xxxxxxxx, 00000 Xxxxx, Xxxxxx (euro) 5,472
Xxxxxxx Xxxxxxx, 00 xxx Xxxxxx xx Xxxx, 00000 Xxxxx, Xxxxxx (euro) 2,737
Execution Version
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SCHEDULE 2
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,
Execution Version
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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").
(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.
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.
Execution Version
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(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 .
(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.
Execution Version
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(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.
(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.
Execution Version
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........................................................................
..................................................
Pool Acquisition S.A.
........................................................................
Signed for and on behalf of each of the following:
________________________________
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
Execution Version
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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;
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;
Execution Version
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SCHEDULE 1
OF THE SHAREHOLDER LOAN AGREEMENT
Investor PRINCIPAL AMOUNT
BC European Capital VII-1, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)19,963,880
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII-2, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)19,892,749
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII-3, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)19,424,909
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII-4, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)19,397,549
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII-5, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)19,260,754
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII-6, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)19,151,319
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII-7, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)19,835,294
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII-8, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)19,660,196
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII-9, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)19,102,073
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII-10, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)17,050,146
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII-11, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)2,735,903
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII-12, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)1,915,132
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII-14, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)1,367,951
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII-15, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (euro)1,641,541
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital XXX-00, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (xxxx) 164,154
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital XXX-00, XX Xxx 000, Xxxxxxxx Xxxxx, Xx. (xxxx) 54,718
Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII Top-Up 1, XX Xxx 000, Xxxxxxxx Xxxxx, (xxxx)0,000,000
St. Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
Execution Version
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Investor PRINCIPAL AMOUNT
BC European Capital VII Top-Up 2, XX Xxx 000, Xxxxxxxx Xxxxx, (xxxx)0,000,000
St. Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII Top-Up 3, XX Xxx 000, Xxxxxxxx Xxxxx, (xxxx)0,000,000
St. Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII Top-Up 4, XX Xxx 000, Xxxxxxxx Xxxxx, (xxxx)0,000,000
St. Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII Top-Up 5, XX Xxx 000, Xxxxxxxx Xxxxx, (xxxx)0,000,000
St. Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
BC European Capital VII Xxx-Xx 0, XX Xxx 000, Xxxxxxxx Xxxxx, (xxxx) 379,797
St. Julian's Avenue, St. Xxxxx Port, Guernsey, Channel Islands
Blue Capital Equity I GmbH & Co. KG, Alter Wall 22, 20457 (euro)3,704,412
Hamburg
Teabar Capital Corporation, 0000 Xxxxx Xxxxxx, Xxxxx 000, (euro)24,288,011
Toronto, Ontario M2M 4H5
Southlight Investment Pte Ltd, 000 Xxxxxxxx Xxxx, #00-00 (xxxx)00,000,000
Xxxxxxx Xxxxx, Xxxxxxxxx 000000, Republic of Singapore
CDPQ Europe Inc., 0000, xxxxxx XxXxxx Xxxxxxx, Xxxxxxxx, (xxxx)00,000,000
Xxxxxx, Xxxxxx
HVB Offene Xxxxxxxxxxxxxxxxxxxxxxxx XX, Xx Xxxxxxxxxx 0, 00000 (xxxx) 7,093,084
Munchen
Xxxxxx Xxxxxxx, 00 xxx Xxxxxx xx Xxxx, 00000 Xxxxx, Xxxxxx (euro) 18,993
Xxxxxx Xxxxxxxxxx, 000 Xxxxxxxxx Xxxxx-Xxxxxxx, 00000 Xxxxx, (euro) 3,800
France
Xxxxxx-Xxxxxxx Xxxxxxx, 00 xxx Xxxxxxxx, 00000 Xxxxx, Xxxxxx (euro) 5,472
Xxxxxxx Xxxxxxx, 00 xxx Xxxxxx xx Xxxx, 00000 Xxxxx, Xxxxxx (euro) 2,737
Execution Version
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SCHEDULE 3
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 credit facilities agreement
between inter alia Bayerische Hypo- und
Execution Version
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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")
(2) The Borrower has already received the Loan proceeds or the equivalent.
Execution Version
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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.
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
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(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
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
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
Execution Version
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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.
........................................................................
..................................................
Sanitec International S.A.
................................., .......................................
Pool Acquisition S.A.
Execution Version
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SCHEDULE 4
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 limited liability duly established and organised under the laws of
Finland, dated 26 April 2001 as amended (the "JUNIOR FACILITY AGREEMENT");
the
Execution Version
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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")
(2) The Borrower has already received the Loan proceeds or the equivalent.
Execution Version
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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.
(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
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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
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
Execution Version
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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) Clause Section 7 (4) above shall apply accordingly if this Agreement is
incomplete.
........................................................................
..................................................
Sanitec Oy
........................................................................
Sanitec International S.A.
