Exhibit 10.9 Facility Agreement dated March 14, 2000 relating
to PCC Care Card Holdings BV
FACILITY AGREEMENT
The undersigned,
I XX0Xxx.xxx Inc, a corporation organized under the laws of
Delaware and having its
principal office at One Rockefeller Plaza, Suite 1600, New York ,
XX 00000, XXX,
hereinafter to be referred to as the "Lender", and
II Personal Care Card Nederland Holding B.V., which has its
registered office in 1211
BF Hilversum, Noordse Bosje 43, The Netherlands, hereinafter to
be referred to as the "Borrower".
And
Xx. X.X. Xxxxxxxx, who is resident of the Netherlands with the
address Hertog Xxxxxxxxxxx 0, 0000 XX Xxxxxxxxx (hereinafter to
be referred to as "Koekkoek") and Nesbic Converging Technologies
Europe (CTE) Fund B.V. Xxxxxxxxxxx 00, Xxxxxxx, (hereinafter to
be referred to as "Nesbic"), both parties jointly hereinafter to
be referred to as the "Creditors"
parties hereinafter collectively also referred to as "Parties"
whereas
Borrower has entered into an acquisition agreement with the
Creditors concerning the purchase of all the shares in Borrower
dated March 14, 2000; Lender has agreed with Borrower to provide
Borrower a loan in the amount of USD 2,000,000 (the "Loan") for
the purpose of (a) repayment of a credit facility and loans
provided by the Creditors to Borrower and (b) working capital;
Parties have agreed in a Loan Term Sheet of March 14, 2000 the
outlines of their agreement; Parties wish to set out their
understandings.
Hereby declare that they have agreed as follows:
1. Loan amount
The Lender shall lend to the Borrower and the Borrower shall
borrow from the Lender an amount of USD 2,000,000 (in words: USD
two million)
2. Drawdown
NLG 500.000 of the Loan shall be made available by Lender for
draw down by the Borrower. as from 27 March, 2000 and the balance
of, the Loan in the amount of NLG 1.500.000, shall be made
available by Lender for draw down by Borrower in the period
between 27 March and 27 June, but ultimately on 27 June, 2000.
3. Interest
The Borrower shall pay to the Lender interest on the Loan or the
balance thereof for the time being outstanding calculated at the
rate of Chase Manhattan Base plus 3% (three per cent) per annum,
payable on December 31 of each year any balance of the Loan is
outstanding. Interest shall be calculated on the basis of actual
days elapsed and a year of 360 days.
4. Purpose of Loan
1 The part of the Loan in the amount of NLG 500.000 shall be
used by Borrower to finance its activities and the balance of NLG
1.500.000 must be used to repay its debts to the Creditors in the
amount of USD 1,500,000 ultimately on June 27, 2000.
2 In the event that the Borrower has not (completely) repaid
its debts of USD 1,500,000 to the Creditors within 30 days after
June 27, 2000, the Creditors are hereby granted the right to
demand from Lender as repayment an amount of fully paid up and
unencumbered S-8 shares in Lender, to be issued and delivered by
the Lender to Creditors, equal to the balance of the debts to the
Creditors divided by the actual market value on June 27, 2000 of
a fully paid up and unencumbered S-8 share in Lender plus 20%.
The amount of S-8 shares to be delivered to Creditors will be
rounded off to the nearest amount of full S-8 shares.
3 Creditors will each give Borrower timely payment
instructions by registered mail with regard to the amount due to
each of them.
5. Repayment/Prepayment
1 The outstanding balance of the Loan shall be repaid by the
Borrower on demand by Lender.
2 Borrower will repay the full balance of the Loan on the
tenth anniversary of the Loan, unless Lender has instructed
Borrower in writing that the repayment is extended to later
date.
3 The Borrower may prepay without penalty the whole or any
part of the Loan on interest payment dates with at least ten days
prior written notice to the Lender. Such notice shall be
irrevocable to the Borrower.
6. Payments
1 On each date on which an amount is due from the Borrower
hereunder, the Borrower shall make the same available to the
Lender on such account as Lender will notify.
2 Whenever any payment hereunder shall be due on a day
which is not a Business Day, such payment shall be made on the
next succeeding Business Day, unless this is in a new calendar
month, in which case the previous Business Day shall be
considered as due date. ("Business Day" shall mean any day on
which banks in London, New York, Amsterdam and the place where
any sum is due to be paid pursuant to the terms of this
Agreement, are open for business).
3 Payments received from the Borrower shall be applied to
discharge the indebtness of the Borrower to the Lender under this
Agreement in the following order:
a. unpaid costs and expenses of the Lender;
b. interest for late payment;
c. interest amounts, including the additional amounts that
should be due pursuant to Article 10 hereof;
d. any other amounts due pursuant to this Agreement with the
exception of principal;
e. principal to be repaid.
7. Representations and warranties
The Borrower declares:
a. that Mr. W.A. Xxxxxxxx has full power and authorisation to
represent the Borrower and to enter into this Agreement for and
on behalf of the Borrower;
b. that it is a company with limited liability duly incorporated
and validly existing under the laws of The Netherlands;
c. that all necessary permits and authorisations to enter into
this Agreement and to make payments thereunder, have been
obtained;
d. to have taken all required actions to execute, deliver and
perform its obligations under this Agreement, and such execution,
delivery and performance shall not violate its articles of
association, by-laws or other governing documents;
e. that there have occurred and are continuing no facts or
circumstances which constitute an Event of Default referred to in
Article 11 hereof;
f. that it has all requisite power and authority to execute and
deliver this Agreement and to carry out its obligations hereunder
and this Agreement constitutes the legal, valid and binding
obligation of the Borrower enforceable against it in accordance
with its terms and conditions;
g. The execution and delivery of this Agreement and the
performance of the transactions contemplated hereby by the
Borrower and the Lender will not violate any applicable law, rule
or regulation in The Netherlands.
8. Conditions precedent
The obligation of the Lender to make any payment under the Loan
is subject to the fulfilment of the following conditions
precedent that all the shares in Borrower are transferred to
Lender by the Creditors in accordance with the acquisition
agreement between Lender and Creditors dated March 14, 2000.
9. Late payment
In the event of any amount owed by the Borrower to the Lender
under the Loan not being paid on time, the Borrower shall pay the
Lender interest on such amount at a rate of 2% per annum over
EURIBOR. Such interest shall be due by the Borrower as from the
day following the due date and shall be calculated up to and
including the date of actual payment, whereby part of a month
shall be counted as a full month and shall be payable together
with the overdue amount.
10. Change of Circumstances
1 To the extent that any change in future requirements of
applicable law or of governmental or regulatory authorities shall
increase the cost to the Lender of maintaining the Loan by an
amount which the Lender deems material then the Lender
shall immediately inform the Borrower of such event and the
Borrower shall pay to the Lender such amounts as the Lender may
duly certify to be necessary to compensate for such increased
cost;
2 If at any time it becomes unlawful for the Lender to make or
fund the Loan or to allow the same to remain outstanding, the
Borrower shall on such date as the Lender shall specify by not
less than 10 Business Days' prior notice repay the principal
amount outstanding under the Loan together with accrued interest
thereon;
3 As long as the circumstances giving rise to the events
specified in above clauses continue, the Lender shall use its
reasonable efforts to assign its rights under this Agreement to
any bank or financial institution acceptable to the Borrower with
a view to avoid the above circumstances.
11. Events of Default
1 Any advance under the Loan or any part thereof together with
interest, penalties and charges will become immediately due and
payable, without any notice of default being necessary:
a. if the Borrower fails promptly to pay interest and/or
to repay the outstanding amounts of the fixed advances and/or to
comply with any other undertaking made in this Agreement;
b. if any representation or warranty made by the Borrower
hereunder is incorrect;
c. if the Borrower ceases to exist, makes an order or passes a
resolution or takes other proceedings or action for the winding
up or dissolution of its business or for the transfer of its
business to another company;
d. if the Borrower materially changes the nature of its business
and/or ceases trading or announces its intention of changing
materially the nature of its business, or if the Borrower's
business is brought under the control of a trustee;
e. if the Borrower sells all or part of its business or
transfers it to another company or a new company or disposes of
it in any other way or if, in the opinion of the Lender, a
material proportion of the shares in the Borrower changes hands
as a result of a merger or acquisition, unless and insofar as
expressly approved by the Lender;
f. if the Borrower files a petition for bankruptcy, has such a
petition filed against it, is declared bankrupt, applies for a
moratorium, or seeks a composition with one or more of its
creditors;
g. if a material part of the Borrower's assets is attached and
if such attachment remains in effect and is not discharged within
14 days after such attachment;
h. if the Borrower relinquishes control over its property,
including as a result of nationalisation and the requisition
thereof by public authorities;
i. if the Borrower fails to meet a payment obligation to a
third party, for an amount exceeding USD 200.000 or the
equivalent thereof;
j. if any other circumstance should occur which affects the
validity or enforceability of the Lender's rights under this
Agreement or the security documents referred to in Article 14
hereof.
2 The Borrower undertakes to inform the Lender forthwith of
the occurrence of any of the above mentioned events, or of the
likelihood of any of these events occurring.
3 Without prejudice to Article 9 hereof, the Borrower shall
indemnify the Lender against any loss or expenses which the
Lender may sustain or incur as a consequence of any event of
default by the Borrower in payment of the principal of the Loan
or interest accrued thereon and against any costs incidental to
the Loan and those resulting from its collection, provided that
such loss or expenses shall include - but not limited to - any
f interest or fee paid or payable on account of any funds
borrowed in order to carry the amount of the Loan.
12. Taxes
1 All payments by the Borrower hereunder shall be made
without set-off, counterclaim, withholding, tax or any other
deduction whatsoever, except to the extent, if any, required by
law.
2 In the event that the Borrower is compelled by law to
withhold amounts of tax on any payments to the Lender, the
Borrower shall pay to the Lender such additional amounts as may
be necessary to ensure that the Lender receives a net amount in
US Dollars equal to the full amount which the Lender would have
received if payment had not been made subject to such tax.
3 The term "tax" includes all present and future taxes,
levies, imposts, duties, withholdings and any restrictions on
conditions imposed, assessed or collected by any jurisdiction.
13. Negative pledge; Pari passu
1 It is understood that the Borrower has not provided
security of any kind as collateral for monies owed to other
creditors. The Borrower undertakes not to secure, without the
written consent of the Lender, any loan, debt, guarantee or other
obligation. If any security is provided with the Lender's consent
(which will not be withheld unreasonably), the Borrower shall
provide the same security to the Lender.
2 The Borrower represents and warrants to the Lender that
the obligations under this Agreement of the Borrower will at all
times rank at least pari passu with all other present and future
outstandings, unsecured obligations, issued, created or assumed
by the Borrower.
3 The Lender will at all times rank pari passu with any
other of the Borrower's creditors with respect to all terms and
conditions of prepayment or cancellation other than normal
maturity schedules which the Borrower may have agreed with other
creditors. Such terms and conditions shall not result in
prepayments that would adversely affect the Lender's position.
14. Information
The Borrower shall provide the Lender with:
a. The Borrower's balance sheets and profit and loss
accounts, together with the a accompanying notes, certified by an
independent chartered accountant acceptable to the Lender, within
180 calendar days of the end of Borrower's financial year.
b. The Borrower's other financial statements insofar as
they have been published.
15. Charges; Proof of payment
Any expenses arising from the Loan and from the collection
of all amounts owed by the Borrower, including all extrajudicial
and other expenses incurred by the Lender in protecting and
exercising its rights, shall be borne by the Borrower.
16. Notices
Unless otherwise specified herein, all notices and
communications to the parties hereto shall be addressed as
follows:
in the case of the Borrower to:
Personal Care Card Nederland Holding B.V
Noordse Bosje 43
1211 BE Hilversum
The Netherlands
in the case of the Lender to: Xx0Xxx.xxx Inc.
Xxx Xxxxxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxx
XX 00000
XXX
or at such other address the parties hereto may designate to each
other by registered mail.
17. Pledge
As additional security for the payment or repayment of whatever
the Borrower now or at any time in the future may owe the Lender
for any reason whatsoever, whether contingent or not, the
Borrower hereby pledges, as far as necessary in advance, to the
Lender, which accepts this pledge, all claims which the Borrower
now or at any time in the future may have against the Lender for
any reason whatsoever. Where necessary the Lender declares that
the pledge has been communicated to the Lender as debtor of the
claims.
18. Law and Jurisdiction
1 This Agreement shall be governed by Dutch law. Any
disputes arising from this Agreement shall be submitted to the
Court of Amsterdam, unless the Lender should prefer to submit
such a dispute to a different Court.
2 In respect of the performance of this Agreement as well
as of its judicial enforcement, parties hereby elect domicile in
Amsterdam.
[signature page follows]
Compiled in duplicate and executed on this 27 day of March 2000,
at Amsterdam
The Lender
The Boyo~ver
The Creditors
Xx. Xxx Xxxx Mr. W.A. Xxxxxxxx Xx. X.X. Xxxxxxxx
