MASCOT JVCO (CAYMAN) LIMITED as the Lender and MASCOT HOLDCO 1 (HK) LIMITED as the Borrower INTERCOMPANY LOAN AGREEMENT (FACILITY A PROCEEDS LOAN)
Exhibit 10.9
26 March 2019
MASCOT JVCO (CAYMAN) LIMITED
as the Lender
and
MASCOT HOLDCO 1 (HK) LIMITED
as the Borrower
(FACILITY A PROCEEDS LOAN)
THIS AGREEMENT is dated 26 March 2019
PARTIES:
| (1) | MASCOT JVCO CAYMAN LIMITED, an exempted limited company incorporated in the Cayman Islands with registration number 344453 and having its registered office at ▇▇▇▇▇▇▇ Trust Company (Cayman) Limited, P.O. Box 2681, Cricket Square, ▇▇▇▇▇▇▇▇ Drive, ▇▇▇▇▇▇ Town, Grand Cayman, Cayman Islands (the Lender or the Company); and |
| (2) | MASCOT HOLDCO 1 (HK) LIMITED, a company incorporated with limited liability under the laws of Hong Kong (the Borrower) |
(together the parties and each a party).
WHEREAS:
| (1) | Pursuant to a combination agreement (the Combination Agreement) dated 7 December 2018 (as amended pursuant to an amendment agreement dated 19 December 2018) between, among others, Mascot Bidco Oy (the Offeror) and Amer Sports Corporation (the Target) the Offeror agreed to launch a voluntary public tender offer for all issued outstanding shares of the Target (other than any shares in the Target held by the Target or its subsidiaries), subject to the terms and conditions of the Combination Agreement and satisfaction of certain conditions (the Transaction). |
| (2) | The Company has entered into the Recourse Facilities Agreement, pursuant to which the Facility A Lenders have agreed to make Facility A available to the Company. |
| (3) | The Company has borrowed EUR 1,300,000,000 under Facility A. |
| (4) | Pursuant to this Agreement, all the proceeds of Facility A will be made available to the Borrower and be applied by the Borrower, together with certain other sources of funds, to (indirectly) finance the Transaction. |
| (5) | The parties intend that all repayments and prepayments of the Liabilities will be applied in repayment or prepayment of amounts outstanding under the Recourse Facilities Agreement. |
IT IS AGREED as follows:
| 1. | Interpretation |
| 1.1 | The following words and phrases shall have the following meanings where used in this Agreement, except where the context otherwise requires. |
Business Day means a day, other than a Saturday or Sunday or public holiday on which banks are generally open in London, Hong Kong, and Helsinki for general commercial business.
Facility A has the meaning given to that term in the Recourse Facilities Agreement.
Facility A Interest Payment Date has the meaning given to that term in Clause 3 (Interest).
Facility A Lenders means the institutions that are from time to time lenders in respect of Facility A.
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Interest has the meaning given to that term in Clause 3 (Interest).
Interest Payment Date has the meaning given to that term in Clause 3 (Interest).
Liabilities means any amounts owed by the Borrower to the Lender under this Agreement.
Principal Amount means the sum of EUR 1,300,000,000.
Recourse Facilities Agreement means the senior facilities agreement dated 6 December 2018 between, among others, the Company and Anllian Sports Products Limited as the borrowers, certain financial institutions as arrangers and joint global coordinators and Citicorp International Limited as agent.
Repayment Date means the earlier of:
| (a) | the date on which the Combination Agreement terminates without the Tender Offer having been completed; and |
| (b) | the date falling 10 years after the date of this Agreement. |
Tender Offer has the meaning given to it in the Combination Agreement.
| 1.2 | In this Agreement, unless the context requires otherwise: |
| (a) | references to a person include any individual, firm, body corporate (wherever incorporated), government, state or agency of a state or any joint venture, association, partnership, works council or employee representative body (in any case, whether or not it has separate legal personality) |
| (b) | references to a party means a party to this Agreement and shall be construed so as to include its successors in title, personal representatives, permitted assigns and permitted transferees; |
| (c) | references to a paragraph or Clause are to those of this Agreement; |
| (d) | headings do not affect its interpretation; |
| (e) | the singular shall include the plural and vice versa, and references to one gender include all genders; |
| (f) | references to any document or any other agreement or instrument is a reference to that document, agreement or instrument as amended, novated, supplemented, extended or restated (in any case, however fundamentally); |
| (g) | references to any English law legal term or concept shall, in respect of any jurisdiction other than England and Wales, be construed as references to the term or concept that most nearly corresponds to it in that jurisdiction; and |
| (h) | any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as merely illustrative and shall not limit the sense of the words preceding those terms. |
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| 1.3 | Except as otherwise expressly provided in this Agreement, any reference to an enactment (which includes any legislation in any jurisdiction) includes references to: (i) that enactment as amended, consolidated or re-enacted by or under any other enactment whenever made; (ii) any enactment that that enactment re-enacts (with or without modification); and (iii) any subordinate legislation (including regulations) whenever made under that enactment, as amended, consolidated or re-enacted as described in (i) or (ii), except to the extent that any of the matters referred to in (i) to (iii) occurs on or after the date of this Agreement and increases or alters the liability of a party under this Agreement. |
| 1.4 | If there is any inconsistency between any definition set out in this Clause 1 and a definition set out in any other clause, then, for the purposes of construing that clause, the definition set out in that clause shall prevail. |
| 2. | Loan |
Subject to the terms of this Agreement, the Lender shall lend, and the Borrower shall borrow, the Principal Amount.
| 3. | Interest |
| 3.1 | Interest shall accrue on the outstanding amounts under the Liabilities until and including the day of actual repayment at such rate as will be agreed between the Lender and the Borrower from time to time, which rate will be equal to: |
| (a) | the rate of interest payable by the Lender in respect of Facility A borrowed by it under the Recourse Facilities Agreement; |
plus
| (b) | a margin to be determined by the Lender and the Borrower from time to time (if any), |
and shall be calculated on the basis of actual number of days elapsed and a year of 360 days (Interest).
| 3.2 | The Borrower shall pay to the Lender the accrued Interest in cash in arrears, on each day (each an Interest Payment Date) that occurs three Business Days prior to the corresponding date on which a payment of interest is due to be paid by the Company in respect of Facility A (each a Facility A Interest Payment Date). The Interest to be paid on an Interest Payment Date shall be calculated up to and including the relevant Facility A Interest Payment Date. |
| 4. | Fees |
| 4.1 | The Borrower shall pay to the Lender an upfront fee in an amount equal to EUR 20,881,085.86 (the Upfront Fee). |
| 4.2 | The Upfront Fee is payable on the date of first utilisation of the Principal Amount and shall be deducted from the proceeds of the first utilisation. |
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| 5. | Repayment |
The Borrower shall repay the Principal Amount (together with all interest accrued on the Principal Amount) on the Repayment Date, provided that the Principal Amount may be repaid by the Borrower in whole or in part at any time.
| 6. | Payments |
| 6.1 | All payments to be made under this Agreement shall be made on the relevant due date in euros and in immediately and freely available same day funds without any deduction or withholding for or on account of tax (unless required by law). |
| 6.2 | If the due date for any payment under this Agreement is not a Business Day, such payment shall be made on the next following Business Day. |
| 6.3 | All payments due to be made by the Borrower shall be made into such bank account as the Lender may specify in writing from time to time. |
| 7. | Assignments and Transfers |
No party shall assign, transfer, charge or otherwise deal with all or any of its rights or obligations under this Agreement.
| 8. | Invalidity |
Each of the provisions of this Agreement is severable. If and to the extent that any provision of this Agreement:
| (a) | is held to be, or becomes, invalid or unenforceable under the law of any jurisdiction; but |
| (b) | would be valid, binding and enforceable if some part of the provision were deleted or amended, |
then the provision shall apply with the minimum modifications necessary to make it valid, binding and enforceable and neither the validity or enforceability of the remaining provisions of this Agreement, nor the validity or enforceability of that provision under the law of any other jurisdiction shall in any way be affected or impaired as a result of this Clause 9.
| 9. | Waiver of Rights |
No waiver by the Lender or the Borrower of a failure by the other party to this Agreement to perform any provision of this Agreement operates or is to be construed as a waiver in respect of any other failure whether of a like or different character.
| 10. | Notices |
| 10.1 | Any communications to be made under or in connection with this Agreement shall be made in writing and, unless otherwise stated, may be made by fax or letter. |
| 10.2 | The address and fax number of each Party for any communication or document to be made or delivered under or in connection with this Agreement shall be the address and fax number as notified by the Lender and the Borrower to each other from time to time. |
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| 11. | Amendments |
A variation of this Agreement is valid only if it is in writing and signed by or on behalf of the Lender and the Borrower.
| 12. | Counterparts |
This Agreement may be executed in any number of counterparts, and by each party on separate counterparts. Each counterpart is an original, but all counterparts shall together constitute one and the same instrument. Delivery of a counterpart of this Agreement by e-mail attachment shall be an effective mode of delivery.
| 13. | Third party rights |
A person who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Ordinance (Cap 623 of the Laws of Hong Kong) or any other statutory provision to enforce any of its terms.
| 14. | Governing Law and Jurisdiction |
| 14.1 | This Agreement and any non-contractual obligations arising out of, or in connection with, it shall be governed by, and interpreted in accordance with, the laws of Hong Kong. |
| 14.2 | Any Dispute shall be referred to, and finally resolved by, arbitration administered by the Hong Kong International Arbitration Centre (the HKIAC) under the HKIAC Administered Arbitration Rules in force when the notice of arbitration is submitted. |
| 14.3 | The tribunal shall consist of three arbitrators; one appointed by the applicant(s), one appointed by the respondent(s) and one who shall be appointed by the mutual agreement of the other two arbitrators. The seat of arbitration shall be Hong Kong and the language to be used in the arbitral proceedings shall be English. |
| 14.4 | Notwithstanding this Clause 14, the parties shall retain the right to seek injunctive or interlocutory relief from any court of competent jurisdiction pending the commencement or determination of any arbitration proceedings. |
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As witness this Agreement has been signed by the duly authorised representatives of the parties the day and year first before written.
For and on behalf of
| MASCOT JVCO (CAYMAN) LIMITED | ||
| By: | /s/ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ |
|
| Name: | ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ | |
| Title: | Director | |
Signature Pages to the Intercompany Loan Agreement (JVCo to HK TopCo) – Facility A Proceeds Loan
For and on behalf of
| MASCOT HOLDCO 1 (HK) LIMITED | ||
| By: |
/s/ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ |
|
| Name: | ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ | |
| Title: | Director | |
Signature Pages to the Intercompany Loan Agreement (JVCo to HK TopCo) – Facility A Proceeds Loan