EXHIBIT 10.9
2 FEBRUARY 2000
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GLOBAL INFORMATION GROUP U.S.A., INC.
as Borrower
and
▇▇▇▇▇▇ INVEST AG
as Lender
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FIRST LOAN AGREEMENT
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CONTENTS
Clause Page
1. Amount.................................................................................................1
2. Purpose................................................................................................1
3. Conditions Precedent...................................................................................1
4. Drawdown...............................................................................................1
5. Covenants..............................................................................................2
6. Repayment..............................................................................................2
7. Prepayment.............................................................................................2
8. Interest Periods.......................................................................................2
9. Interest...............................................................................................2
10. Additional Interest....................................................................................3
11. Payments...............................................................................................3
12. Representations........................................................................................3
13. Events of Default......................................................................................3
14. Fees and Costs.........................................................................................4
15. General Indemnity......................................................................................4
16. law and jurisdiction...................................................................................4
17. notices................................................................................................4
SCHEDULE.....................................................................................................5
1. The Agreement..........................................................................................5
2. The Escrow Agreement Principals........................................................................5
THIS FIRST LOAN AGREEMENT is made on 2 February 2000
BETWEEN:
(1) GLOBAL INFORMATION GROUP U.S.A., INC. (registered number [ ])
having its registered office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇ (the "Borrower"); and
(2) ▇▇▇▇▇▇ INVEST AG (the "Lender")
BACKGROUND
E. The Borrower (1) Chatelin Capital Partners Limited ("CCP") (2) Jolec
Trading Limited (3) ▇▇▇▇▇▇▇ ▇▇▇▇ (4) Newick Developments Limited
("Newick") (5) and the Lender (6) have entered into a share purchase
and shareholders agreement ("Agreement") (appended as Schedule 1) dated
14 January 2000 relating to the Borrower.
F. This agreement is the First Loan Agreement referred to in clause 12.2
of, and the sixth schedule to, the Agreement.
G. Capitalised expressions not defined in this First Loan Agreement shall
have the meanings given to them in clause 1.1 of the Agreement.
H. The Lender has agreed to offer the Borrower a loan facility in the
maximum aggregate amount of US$200,000 ("First Loan Facility") on the
following terms and conditions.
IT IS AGREED as follows:
1. Amount
A maximum aggregate amount of US$200,000.
2. Purpose
The entire proceeds of the Loan Facility shall be applied by the Borrower
firstly to repay the travel and other expenses advanced to GIG by CCP being in
the amount of US$ 3,000 (three thousand US dollars) and Dfl. 3,000 (three
thousand Dutch Guilders) and secondly in accordance with clause 10.4.2 of the
Agreement.
3. Conditions Precedent
Before a Loan may be drawn down under this First Loan Agreement, the Borrower
shall deliver to the Lender in form and substance satisfactory to the Lender (i)
a certified copy of a resolution of its Board of Directors approving the
transactions contemplated by this letter and authorising a specified person or
persons to execute this letter and (ii) a copy of this First Loan Agreement duly
executed by the Borrower.
4. Drawdown
The Loan shall be drawn down in not more than one tranche comprising the full
amount of the Loan Facility on the date of Completion (as defined in the
Agreement) ("Drawdown Date"), after which date any unutilised amount of the Loan
Facility shall automatically be cancelled. The Lender will not be obliged to
make available a Loan hereunder if, on the Drawdown Date, any of the
representations in paragraph 12 of this First Loan Agreement or clause 7 of the
Agreement shall not then be true and correct in all respects or any of the
events specified in paragraph 13 of this First Loan Agreement shall have
occurred and shall then be continuing.
5. COVENANTS
5.1 The Borrower shall provide the Lender with cash flow statements in
a form acceptable to the Lender on a monthly basis and further
provide us with information in accordance with clause 11.1 of the
Agreement.
5.2 If at any time the Borrower, any of its subsidiaries or any
company controlled by it purchases all or any of the source codes
relating to the bespoke computer software used in the Borrower's
business in accordance with clause 12.4 of the Agreement then the
Borrower shall use it best endeavours to deliver within a
reasonable time and in any event within 30 days of the completion
of such purchase an executed escrow agreement (negotiated in good
faith and in accordance with the principals appended as Schedule
2) over all source codes relating to the bespoke computer software
used in the Borrower's business in favour of the Lender and
Newick.
5.3 If required by the Lender and ▇▇▇▇▇▇, and if the purchase as
referred to in 5.2 by Borrower of the bespoke computer software
has not been realised, the Lender, ▇▇▇▇▇▇ and, the Borrower shall
- if Lender or ▇▇▇▇▇▇ so requests - negotiate in good faith to
provide the Lender and ▇▇▇▇▇▇ with an alternative form of security
other than that required under Clause 5.2 of this First Loan
Agreement over any and all source codes or other intellectual
property relating to the bespoke computer software used in the
Borrower's business (other than any which is held in escrow under
Clause 5.2 of this First Loan Agreement). If such alternative
security is agreed, the Borrower undertakes to execute all
documentation required by the Lender and ▇▇▇▇▇▇ to perfect and
protect such security.
6. Repayment
The Loans shall be repaid in full on the sooner to occur of (i) an IPO or Third
Party Sale (each as defined in the Agreement), (ii) that date falling 5 years
after the date of Completion, and (iii) any or all of the equity share capital
of the Borrower or its parent undertaking being admitted or readmitted to an
internationally Recognised Stock Exchange. The relevant date shall be referred
to in this First Loan Agreement as the Repayment Date.
7. Prepayment
On giving the Lender not less than 15 days' notice, the Borrower may prepay all
or any part of the Loan (but if in part in an amount of [US$50,000] or an
integral multiple thereof, if more). The Borrower may not re-borrow any
prepayment. Prepayments shall be made together with all unpaid interest on the
amount prepaid.
8. Interest Periods
The first Interest Period shall commence on the date of the disbursement of the
First Loan Facility and end on that date following 18 months thereafter. Each
subsequent Interest Period shall be a period of 3 months commencing on the date
following the expiry of the preceding Interest Period. If an Interest Period
would end on a day which is not a business day, such Interest Period shall be
extended to the next business day. The first Interest Period of each Loan, other
than the first Loan, shall end on the last day of the then current Interest
Period relating to the first Loan. Thereafter, all Interest Periods relating to
such Loans shall be co-terminous and such Loans shall be treated as one Loan. If
an Interest Period would otherwise overrun the Repayment Date, such Interest
Period shall be shortened so that such Interest Period ends on the Repayment
Date.
9. Interest
Interest on the Loan will be payable at the rate of 6.5 per cent. per annum.
Interest shall be calculated on a basis of the actual number of days elapsed and
a year of 360 days. Interest shall be payable in arrears on the last day of an
Interest Period ("Interest Payment Date").
10. Additional Interest
If the Borrower fails to pay any sum due hereunder on its due date, the Borrower
shall pay interest on such sum from the date of such failure to the date of
actual payment (as well after as before judgment) at the rate of 2.5 per cent.
per annum.
11. Payments
All payments (whether capital, interest or otherwise) to be made by the Borrower
under this First Loan Agreement shall be made without set-off or counterclaim
and free and clear of any deduction in respect of any present or future taxes of
any nature now or hereafter imposed ("Taxes") unless such deduction is required
to be made by law, in which event any affected payment shall be increased to
ensure that the Lender receives a net amount equal to the full amount due had
such payment not been subject to such deduction. The Borrower shall deliver, on
being so requested by the Lender, evidence satisfactory to it that such Taxes
have been paid.
Whenever any payment shall become due on a day which is not a business day, the
due date thereof shall be extended to the next business day and interest shall
be calculated accordingly.
All payments to be made by the Borrower under this First Loan Agreement shall be
made on the due date for value in immediately available funds to the Lender as
it may, from time to time, instruct the Borrower.
12. Representations
In addition to the representations, warranties, indemnities and undertakings
given by the Borrower under the Agreement, the Borrower represents and warrants
to the Lender that:-
12.1 it has the power to own its property and assets and carry on its
business as it is now being conducted;
12.2 it has the power to enter into and perform this First Loan
Agreement and the transactions contemplated by this First Loan
Agreement and it has taken all necessary action to authorise the
entry into and performance of this First Loan Agreement and the
transactions contemplated by this First Loan Agreement;
12.3 this First Loan Agreement constitutes the Borrower's legal, valid
and binding obligations enforceable in accordance with its terms;
12.4 the entry into and performance of this First Loan Agreement and
the transactions contemplated by this First Loan Agreement do not
and will not conflict with (i) any law or regulation or any
official or judicial order, or (ii) the Borrower's certificate of
incorporation and bylaws;
12.5 to the best of Borrower's knowledge, full disclosure has been made
to us before the date of this First Loan Agreement of all material
facts or circumstances which need to be disclosed to enable us to
obtain a true and correct view of the Borrower's business,
undertaking, assets, liabilities, revenues and affairs (in each
case, both current and prospective) or which ought to be disclosed
to any person proposing to provide finance to the Borrower.
13. Events of Default
All sums due hereunder shall become immediately due and payable on demand and
all the Lender's obligations hereunder shall cease if any of the following
events occurs:
13.1 any sum payable by the Borrower under this First Loan Agreement is
not paid within 30 days after due date; or
13.2 the Borrower fails to comply with any other provisions of this
First Loan Agreement; or
13.3 any representation made in this First Loan Agreement or the
Agreement is incorrect in any respect or, if repeated at any time
with reference to the facts and circumstances then existing, would
be so incorrect; or
13.4 the Borrower becomes insolvent, or it suspends making payments
(whether of principal or interest) with respect to all or any
class of its debts or announces an intention to do so; or
13.5 any administrative or other receiver or any manager relating to
the Borrower or any of its property is appointed or any other
steps are taken to enforce any charge or other security over any
of its property, or any steps are taken with a view to putting in
force any kind of attachment, sequestration, distress or execution
against the Borrower or any of its property.
13.6 the Borrower is wound up, dissolved or liquidated; or
13.7 any event occurs or proceedings taken in relation to the Borrower
in any jurisdiction which has a similar, equivalent or analogous
effect to any of the events detailed in paragraphs 13.4 to 13.6 of
this First Loan Agreement inclusive; or
13.8 the Borrower ceases, or threatens to cease, to carry on all or a
substantial part of its business; or
13.9 any of the property subject to any security in favour of the
Lender is subject to a compulsory purchase order or any order
analogous to such an order.
14. Fees and Costs
The Borrower shall, on the date on which the first Loan Facility is advanced,
pay to CCP an arrangement fee of US$ 5,000 , pro rata as with the disbursements
of the Loan Facility.
The Borrower shall, on being so requested by the Lender, pay all reasonable
costs and fees incurred by the Lender in connection with the preservation of its
rights under, or the enforcement of, this First Loan Agreement or any security
document in favour of the Lender.
15. General Indemnity
The Borrower shall, on being so requested by the Lender, indemnify the Lender
against any loss or expense which the Lender may sustain or incur as a
consequence of the occurrence of any of the events referred to in paragraph 13
of this First Loan Agreement.
16. Law and Jurisdiction
The terms of clause 22 of the Agreement shall be incorporated into this First
Loan Agreement.
17. Notices
The terms of clause 20 of the Agreement shall be incorporated into this First
Loan Agreement.
IN WITNESS whereof the parties have executed this First Loan Agreement the day
and year first above written.
THE LENDER:
GLOBAL INFORMATION GROUP U.S.A., INC.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇, President
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THE BORROWER:
▇▇▇▇▇▇ INVEST AG
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Director
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SCHEDULE
1. THE AGREEMENT
2. THE ESCROW AGREEMENT PRINCIPALS