Schedule 13D Exhibit K
Schedule TO Exhibit (d)(iii)
EXECUTION COPY
REVOLVING CREDIT AGREEMENT
By and Among
Invensys plc,
Invensys Holdings Limited
and
Baan Company N.V.
Effective as of July 26, 2000
<PAGE>
REVOLVING CREDIT AGREEMENT
--------------------------
THIS REVOLVING CREDIT AGREEMENT, dated as of July 26, 2000, is
made and entered into by and among Invensys plc, a public limited company
organized under the laws of England and Wales ("Parent") Invensys Holdings
Limited, a private limited company organized under the laws of England and
Wales (the "Lender"); and Baan Company N.V., a public limited liability
company organized under the laws of The Netherlands (the "Borrower").
In consideration of the mutual covenants and agreements herein
contained, the parties hereto agree as follows:
1. Definitions
-----------
1.1. Reference is made to the Asset Purchase Agreement and
Offer Amendment, dated as of the date hereof, between Parent, the Lender,
the Borrower and Baan Software B.V. (the "Offer Amendment"). Capitalized
terms used, but not otherwise defined herein shall have the respective
meanings ascribed to them in the Offer Amendment. The "Offer" means
Offeror's offer to purchase all of Borrower's outstanding common shares,
par value NLG 0.06 per share (the "Shares"), at a price of Euro 2.85 per
Common Shares, subject to certain conditions set forth in the Offer
Agreement and Offer Amendment. The "Closing" means the closing of the
purchase of assets and assumption of liabilities by Lender contemplated by
the Offer Amendment.
1.2. In this Agreement, the words and phrases in the first
column have the respective meanings set against them in the second column:
Business Day A day on which banks in the cities of London and
Amsterdam are open for business (other than
Saturdays).
The Commitment A sum not exceeding Euro 100 million or such
other amount as shall be agreed by the Lender.
Event of Default Any of the events of default mentioned in Clause
10.1.
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Expiration Date The earliest date on which any of the following
events occurs: (i) the three month anniversary of
the termination of the Offer without the Lender
accepting all of the Shares tendered and not
withdrawn, (ii) the termination of the Offer
pursuant to Section 6.1(c) and 6.1(d) of the Offer
Agreement, (iii) immediately prior to the closing
of a transaction involving the sale, lease or
management of the Borrower or substantially all
the assets of the Borrower to any person other
than the Lender or an affiliate of the Lender, and
(iv) December 31, 2000.
Initial Drawdown Date The date of the first drawdown under this
Agreement.
LIBOR London Interbank Offered Rate for Euro borrowings
for the period of one month issued daily by the
British Bankers Association which appears on the
relevant Reuters Screen on or around 11:00 a.m.,
London Time.
Pledged Securities All of the shares of capital stock of Baan
Software N.V. and the certificates evidencing the
same.
Secured Revolving Note The note attached to this Agreement as exhibit A.
Stock Pledge Agreement A Notarial deed relating to the Pledged
Securities.
2. Revolving Credit
----------------
2.1. The Lender agrees that provided no Event of Default has
occurred and is continuing, and in accordance with Article 2, the Lender
will lend to the Borrower from time to time prior to the Expiration Date
amounts not to exceed in aggregate at any one time outstanding the amount
of the Commitment. Such amounts shall be evidenced by a Secured Revolving
Note.
2.2. Prior to the Expiration Date, upon two Business Days'
written notice (a "Draw Notice"), the Lender shall lend funds to the
Borrower. Each Draw Notice shall contain a request for a specific amount
and shall be signed by two authorized officials, one of which must be
either Mr. Bruce Henderson or Mr. David Wyman.
2.3. Notwithstanding anything herein to the contrary, unless
the Lender agrees to increase the Commitment, the Lender shall not be
obliged to lend amounts to the Borrower in excess of the Commitment.
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2.4. Lender and Borrower agree to use reasonable cooperation
to enter into a mutually agreeable Stock Pledge Agreement.
3. Conditions Precedent to the Initial Drawdown and Subsequent
Drawdowns
-----------------------------------------------------------
3.1. The Lender shall not be obliged to make any loans to
the Borrower unless the Lender receives on or before the Initial Drawdown
Date:
(a) copies of resolutions of the Borrower's Management
and Supervisory Boards approving the execution of
this Agreement, the Secured Revolving Note and the
Stock Pledge Agreement and the performance of the
obligations contemplated hereby and thereby;
(b) a counterpart of this Agreement duly executed and
delivered by the Borrower;
(c) the Secured Revolving Note duly executed and
delivered by the Borrower;
(d) a counterpart of the Stock Pledge Agreement duly
executed and delivered by Borrower, together with
certificates representing the Pledged Securities
and security transfer powers duly executed in
blank for the Pledged Securities;
(e) such other documentation as is necessary for the
Lender to obtain a perfected security interest in
all of Borrower's right, title and interest in the
Pledged Securities, which security interest shall
be free of adverse claim;
(f) Borrower shall have entered into, and duly
executed and delivered the Offer Amendment and the
Management Services Agreement.
3.2. The Lender shall not be obligated to make any loans to
Borrower if:
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(a) there shall be issued and in effect any injunction
or similar legal order prohibiting or restraining
consummation of any of the transactions
contemplated by the Offer Amendment or there is
pending or threatened any legal action or
governmental investigation or inquiry which might
reasonably be expected to result in any such
injunction or order; or
(b) the Offer shall have been terminated without the
Lender accepting all the Shares tendered and not
withdrawn.
4. Interest
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4.1. The Borrower shall pay interest on the aggregate amount
of borrowings for the time being outstanding hereunder, calculated in
accordance with the provisions of Section 4.2, payable on or before the
tenth day of each calendar month in respect of interest accrued during the
preceding calendar month.
4.2. The rate of interest payable on the aggregate amount
outstanding shall be LIBOR, to be set by the Lender on the first business
day of each calendar month (or, in the case of the initial drawdown, the
Initial Drawdown Date), plus 150 basis points. Interest shall accrue on the
aggregate daily amount outstanding and shall be calculated based on an
actual days outstanding and a 360 day year starting from (and including)
the date such amounts are dispersed to the Borrower and shall continue to
accrue until (but not including) the date such amounts are repaid.
5. Repayment of the Loan and Cancellation
--------------------------------------
5.1. The Borrower shall repay in full the amount of all
borrowings outstanding hereunder, together with all interest accrued and
outstanding thereon, on the Expiration Date.
5.2. The Borrower, without premium or penalty and on prior
notice to the Lender of its intention to do so, may, at any time and from
time to time, prepay to the Lender part or all of the aggregate amount of
all borrowings outstanding hereunder, together with all interest accrued
and outstanding thereon, to the date of such repayment.
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5.3. Amounts repaid may be redrawn provided that the
aggregate amount outstanding at any one time does not exceed the
Commitment.
5.4. Simultaneous with the Closing, all borrowings hereunder
shall be due and payable and the Lender shall assume all the obligations of
the Borrower hereunder.
6. Payment Provisions
------------------
6.1. If any payment due to be made by the Borrower in
accordance with this Agreement is to be made on a day which is not a
Business Day, such payment shall be made to the Lender on the next
succeeding Business Day, the sums to be paid being in all instances
calculated by reference to the actual date of payment.
6.2. The Borrower shall not be entitled to deduct or set off
any amounts which may be owed or claimed to be owed to it by the Lender
from any amounts payable by the Borrower to the Lender under this
Agreement.
6.3. All payments by the Borrower shall be made directly to
the Lender or as the Lender shall otherwise notify the Borrower in writing.
6.4. The Lender shall be entitled to deduct or set-off any
amounts payable under this Agreement from any amounts owed or claimed to be
owed by it or any of its affiliates to the Borrower.
7. Representations and Warranties by the Borrower
----------------------------------------------
7.1. To induce the Lender to enter into this Agreement and
to make borrowings to the Borrower up to the Commitment, the Borrower
represents and warrants to the Lender (which representations and warranties
shall survive the execution and delivery of this Agreement and the making
of the borrowings hereunder) as follows that:
7.1.1. the Borrower is duly organized and validly
existing under the laws of The Netherlands;
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7.1.2. the Borrower has the power and authority under
its organizational documents and has taken all necessary
corporate or other action (by passing of resolutions or
otherwise) and has obtained (and there remains in full force and
effect) all other consents, approvals and authorizations (if any)
necessary for it to execute and perform this Agreement, the
Secured Revolving Note and the Stock Pledge Agreement;
7.1.3. neither the execution and delivery of this
Agreement, the Secured Revolving Note and the Stock Pledge
Agreement nor compliance with the terms hereof or thereof will:
(i) contravene any provision of law, statute or
regulation to which the Borrower is subject;
or
(ii) conflict with, or result in any breach of,
any of the material terms of any agreement or
other instrument to which the Borrower is a
party or by which it is bound; and
7.1.4. there is no existing Event of Default.
8. Covenants of the Borrower
-------------------------
8.1. The Borrower hereby covenants with the Lender that from
and after the date hereof and for so long as any amount remains unpaid in
respect of principal of or interest on the outstanding borrowings or
otherwise hereunder:
8.1.1. it will give the Lender prompt notice in writing
of the occurrence of any Event of Default;
8.1.2. it will not create any mortgage or charge on any
part of the Pledged Securities except with the consent of the
Lender and the aggregate amount of its borrowings shall at all
times be secured under the Stock Pledge Agreement.
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9. Waiver
------
9.1. No failure by the Lender to exercise and no delay on
the part of the Lender in exercising any right, power or privilege under
this Agreement against the Borrower shall operate as a waiver thereof, nor
shall any single or partial exercise by the Lender of any right, power or
privilege preclude any other or further exercise by the Lender of any other
right, power or privilege. The rights and remedies of the Lender herein
provided are cumulative and not exclusive of any rights or remedies
available to the Lender by law.
9.2. No waiver on the part of the Lender of any of its
rights, powers or privileges arising hereunder or in respect of the
transactions contemplated by this Agreement shall be effective unless
written notice of such waiver has been served by the Lender on the
Borrower.
10. Default
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10.1. Any of the following shall constitute an "Event of
Default":
10.1.1. the Borrower omits to pay to the Lender as
herein provided any amount payable under this Agreement or the
Secured Revolving Note and shall fail to remedy such matter
within three Business Days of written notification thereof by the
Lender; or
10.1.2. the Borrower commits any material breach of or
fails to comply with any material obligation accepted (other than
one referred to in Section 10.1.1. above) or undertaking given
under this Agreement, the Secured Revolving Note, the Stock
Pledge Agreement, the Management Services Agreement or the Offer
Amendment and such breach, if capable of remedy, shall continue
unremedied for five Business Days after written notice thereof
shall have been given to the Borrower by the Lender; or
10.1.3. the Borrower shall apply for, consent to or
acquiesce in the appointment of a trustee, receiver,
administrator, sequestrator, liquidator or other custodian for
any substantial part of its property, or make a general
assignment for the benefit of creditors; or
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10.1.4. in the absence of such application, consent or
acquiescence, the Borrower shall permit or be subject to the
appointment of a trustee, receiver, administrator, sequestrator
or other custodian or liquidator for a substantial part of its
property, and such trustee, receiver, administrator, sequestrator
or other custodian or liquidator shall not be discharged within
45 days; or
10.1.5. the Borrower shall permit or be subject to the
commencement of any bankruptcy, reorganization, debt arrangement
or other case or proceeding under any bankruptcy or insolvency
law, or any dissolution, winding up or liquidation proceeding in
respect thereof, and, if any such case or proceeding is not
commenced by the Borrower, such case or proceeding shall be
consented to or acquiesced in by the Borrower, or shall result in
the entry of an order for relief or shall remain for 45 days
undismissed; or
10.1.6. the Borrower shall be in breach of any
representation or warranty contained hereunder in a respect which
is material to the making of the loan hereunder.
10.2. The Lender may at any time after any such occurrence
of an Event of Default by notice in writing to the Borrower terminate the
Commitment (if then in existence) and declare the aggregate amount of all
borrowings at the time outstanding to be immediately due and payable with
interest thereon to the date of actual payment. Any such termination and
declaration shall be effective and binding on the Borrower.
11. Costs
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11.1. The Borrower agrees to reimburse the Lender for the
actual costs and expenses (including reasonable legal fees) reasonably
incurred by the Lender in connection with the enforcement or attempted
enforcement of, or the preservation or attempted preservation of, any of
its rights under this Agreement. They shall become due as soon as notice
thereof has been served on the Borrower and shall be paid by the Borrower
within 10 Business Days thereof.
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12. Notices
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12.1. Notices to be served by either party on the other
hereunder shall be sent to the address set out below or such other address
as that party shall have notified to the other:
The Borrower:
Baan Company N.V.
Baron van Nagellstraat 89
3770 AC Barneveld
The Netherlands
Attn: Secretary to the Board
Treasurer
Telefax: 1.703.234.6720
The Lender:
Drawdown Notices are to be faxed (Fax no: 00 44 207 821 3504) Attn
The Group Treasurer - c/o Invensys Holdings Limited at the address
below
All other notices to the Lender or Parent are to be sent to:
Invensys Holdings Limited
c/o Invensys plc
Carlisle Place
London SW1P 1BX
United Kingdom
Attn: Company Secretary
Telefax: 44.20.7821.3806
13. Governing Law; Submission to Jurisdiction
-----------------------------------------
13.1. This Agreement shall be construed (both as to validity
and performance) and enforced in accordance with and governed by the laws
of the State of New York applicable to agreements made and to be performed
wholly within such jurisdiction.
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13.2 Each of Parent, the Borrower and the Lender hereby
irrevocably and unconditionally consents to submit to the jurisdiction and
venue of the United States District Court for the Southern District of New
York or any court of the State of New York located in the County of New
York (the "New York Courts") for any litigation arising out of or relating
to this Agreement, the Secured Revolving Note or the Stock Pledge Agreement
and the transactions contemplated hereby and thereby (and agrees not to
commence any litigation relating thereto except in such courts), waives any
objection to the laying of venue of any such litigation in the New York
Courts and agrees not to plead or claim in any New York Court that such
litigation brought therein has been brought in an inconvenient forum.
14. Assignment
----------
14.1. Except as may otherwise be agreed between the parties,
the Borrower shall not assign the benefit of this Agreement.
14.2. Subject to the continuing effectiveness of Parent's
obligations under Section 17 of this Agreement, the Lender may at any time
upon written notice to the Borrower assign its rights and obligations under
this agreement to any Affiliate.
15. Counterparts
------------
15.1. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be all original and all of
which taken together shall constitute one and the same instrument.
16. Amendment and Waiver
--------------------
16.1. The parties may amend this Agreement at any time only
by written instrument executed by both parties. In addition, until Parent,
directly or indirectly, owns at least 95% of the outstanding Shares, any
amendment of this Agreement shall also require the prior written consent of
the "Continuing Members" under the Offer Agreement.
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16.2. The Lender and the Borrower may at any time waive
compliance by the other with any covenants or conditions contained in this
Agreement but only by written instrument executed by the party waiving such
compliance. No such waiver, however, shall be deemed to constitute the
waiver of any such covenant or condition in any other circumstance or the
waiver of any other covenant or condition. In addition, until Parent,
directly or indirectly, owns at least 95% of the outstanding Shares, any
waiver of any covenant or condition contained in this Agreement shall also
require the prior written consent of the "Continuing Members" under the
Offer Agreement.
17. Parent Undertaking
------------------
17.1. Parent undertakes that it will take all of the actions
required to be taken so that Lender shall not be in breach of its
obligations under Section 2.
18. Effective Date
--------------
18.1. This Agreement shall be effective as of July 26, 2000.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date set out at the beginning of this Agreement.
Signed by, for INVENSYS PLC
and on behalf of
the Parent By: /s/ Frans D. Rosendaal
------------------------------------
Name: Frans D. Rosendaal
Title: Attorney-in-fact
Signed by, for INVENSYS HOLDINGS LIMITED
and on behalf of
the Lender By: /s/ Frans D. Rosendaal
------------------------------------
Name: Frans D. Rosendaal
Title: Attorney-in-fact
Signed by, for BAAN COMPANY N.V.
and on behalf of
the Borrower By: /s/ Joost van Lanschot
------------------------------------
Name: Joost van Lanschot
Title: Attorney-in-fact
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<PAGE>
EXHIBIT A
SECURED REVOLVING PROMISSORY NOTE
Euro_______________ Dated: July __, 2000
FOR VALUE RECEIVED, the undersigned, Baan Company N.V., a public
limited company organized under the laws of The Netherlands (the
"Borrower"), hereby promises to pay Invensys Holdings Limited or its
registered assigns (the "Lender") the aggregate principal amount of the
borrowings owing to the Lender by the Borrower pursuant to the Revolving
Credit Agreement dated as of July 26, 2000 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"; terms defined therein, unless otherwise defined herein, being
used herein as therein defined), between the Borrower and the Lender.
The Borrower promises to pay to the Lender interest on the unpaid
principal amount of borrowings outstanding under the Credit Agreement from
time to time, until such principal amount is paid in full, at such interest
rates, and payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in euros in same day
funds.
This Promissory Note is the Secured Revolving Note referred to
in, and is entitled to the benefits of, the Credit Agreement. This
Promissory Note and the obligations evidenced hereby have been secured
pursuant to the terms of a Stock Pledge Agreement, dated of even date
herewith, between the Borrower and the Lender, reference to which is made
for a description of the collateral provided thereby and the rights of the
Lender and the holder of this Note in respect of such collateral. The
Credit Agreement, among other things, (a) provides for the making of loans
by the Lender to the Borrower from time to time in an aggregate amount not
to exceed at any time outstanding the euro amount first above mentioned,
the indebtedness of the Borrower resulting from each such loan being
evidenced by this Promissory Note, and (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated
events. This Note shall be construed (both as to validity and performance)
and enforced in accordance with and governed by the laws of the State of
New York.
BAAN COMPANY N.V.
By:
------------------------------------
Name:
Title:
