Exhibit 10.30.1
Loan and Security Agreement
between
1. Xx Xxxx Xxxxxxx, resident of Xxxxxxxxxxxx. 00/0, 00000 Xxxxxxxxxxxxx,
0. Xx Xxxxxxx Xxxxxxxxxxxxx, resident of Xxxxxxxxxxxxxxx. 00, 00000 Xxxxxxxxxxx
- hereinafter individually or collectively referred to as "Borrowers" -
and
3. Cybernet Internet-Dienstleistungen AG
Xxxxxx-Xxxxxx-Ring 19-23, 81929 Munchen
- hereinafter referred to as Lender -
Preliminary remark
The Borrowers are shareholders of Beam Enterprise GmbH. The Beam Enterprise GmbH
and the Lender signed the framework agreement which is attached as photocopy in
Annex I (hereinafter referred to as "framework agreement") concerning the
provision of project and consultancy services. With regard to this framework
agreement the Lender shall grant the Borrowers a loan on the funding of Beam
Enterprise GmbH in accordance with the following provisions:
I.
Loan
1. The Lender shall grant the Borrowers a loan of up to DM 1,450,000.00 (in
words: one million four hundred fifty thousand German marks).
2. The loan serves the funding of Beam Enterprise GmbH in the form of
shareholder loans. Therefore, the Lender may pay out the loan directly to
the Enterprise GmbH, unless the Borrower has given a different instruction
to the Lender in writing.
3. The loan shall be paid in the following manner: a partial amount of DM
200,000.00 on January 31, 2000 and partial amounts of DM 250,000 on February
29, March 31, April 30, May 31 and June 30, 2000.
4. The payout rates according to the preceding subsection 3 and according to
the promised loan according to the preceding figure 1 shall be reduced in
the amount in which Cybernet AG makes payments in the period from January 1
to June 30, 2000 (net without sales tax) to Beam GmbH according to the
framework agreement or in corresponding individual agreements.
II.
Interest
1. The disbursed loan amount shall be without interest until June 30, 2000 and
thereafter an interest rate of nominal 3.50% (three and a half percent)
shall be paid.
2. The interest accrued shall be payable on December 31, 2000, June 30, 2001,
and on June 30, 2002.
III.
Term, cancellation, repayment
1. The loan amount payable according to the preceding figure I.4 shall be
repaid to the Lender on June 30, 2002. The Lenders shall be discharged DM
500,000.00 of the repayment amount, if the Lender, in the period from
January 1, 2000 to June 30, 2000 does not entrust Beam Enterprise GmbH with
accountable individual contracts in accordance with the framework agreement
totalling DM 500,000.00.
2. The loan may also be redeemed prematurely.
3. The right of cancellation for cause shall not be affected. The cancellation
of the loan amount shall be made in writing.
4. Where the Lender is in default of the loan repayment, the Lender shall owe
default interest of 8% (eight percent) per year. Claiming another default-
related damage remains unaffected.
IV.
Security agreement
1. For safeguarding all existing and future - also conditional or time-limited
- claims which the Lender is entitled to against the Borrowers from this
loan agreement, the Lenders hereby assign the claims from subsection 2 below
to the Lender. The Lender hereby accepts the assignment.
2. The subject of this security and assignment agreement are all claims of the
Borrowers against Xx. Xxxxxx Xxxxxx, Xxxxxxxxxxxxx. 00, 00000 Xxxxxx
(hereinafter referred to as "trustee") for transfer and release of a total
of 17,021 shares of common stock of Cybernet Internet Services
International, Inc. (hereinafter individually or collectively referred to as
"shares") according to the pooling and trust agreements attached as
photocopies in Annex 2 and 3 and in the amending agreement attached as copy
in Annex 4.
3. The Lenders warrant that their entitlement to dispose of claims included in
this assignment is unrestricted, particularly that the claims they assigned
to the Lender have not already been signed to third parties and that rights
of third parties to the claims do not exist.
V.
Utilization of collateral
1. The Lender shall not collect the claims assigned to him until the Lenders
are one month in default of repayment of the secured claims despite a letter
of caution and a deadline set. The Lender may use the shares obtained by
collecting the debts in order to cover the claims secured by assignment,
i.e. by imputation at the daily rate of the Frankfurt Stock Exchange or by
setting off the disposition gain obtained by selling at the Frankfurt Stock
Exchange.
2. The Lenders may instruct the trustee to sell shares for their account on a
stock exchange at the daily rate and to pay out the relevant disposition
gain to the Lender as a means of redeeming the loan. The Lender may object
to such a utilization, if he accepts the shares at the Frankfurt Stock
Exchange as completion rather than loan redemption.
VI.
Retransfer and release of collateral
1. After covering the claims secured by assignment, the Lender shall retransfer
to the Borrowers the claims assigned and/or shares received or proceeds
collected.
2. The Lender is obliged, as appears just, to retransfer any time at the
request of the Borrowers the claims assigned and/or shares received or
proceeds collected any time, if the Lender no longer, not only temporarily,
needs them.
VII.
Joint and several obligation
The Borrowers are jointly and severally liable as debtors for all commitments
arising from or in connection with this agreement.
VIII.
Severability
1. This agreement and any other contracts and statements in connection with it
shall be construed in a way that primarily takes into account the purpose of
this agreement as expressed in the preamble.
2. Where single provisions of this argent are fully or partly invalid or void
and unenforceable or should there be a gap in this agreement, the validity
of the other provisions shall not be affected. In lieu of the invalid or
void or unenforceable provision or for filling the gap that reasonable
provision shall be agreed which within the scope of what is legally
admissible is closest to the economic result which the parties sought
through the invalid or unenforceable provision and what according to the
sense and purpose of the agreement they would have primarily sought before
resorting to the legal provisions, had they considered the unregulated
point; it is helpful to agree on it and lay it down in writing.
Munich, November 10, 1999
/s/ Xxxx Xxxxxxx /s/ Illegible Signature
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(Xxxx Xxxxxxx) Cybernet Internet-Dienstleistungen AG
/s/ Xxxxxxx Xxxxxxxxxxxxx
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(Xxxxxxx Xxxxxxxxxxxxx)
