Credit Agreement
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0000
Xxxxxxxxxxx Xxxx, xxxxx 000
Xxxxxxxxxx,
XX 00000
XXX
Account
number: NEW
ACCOUNT
Geneva,
06th
December 2010
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Dear
Sirs,
Pursuant
to our conversations, we, HSBC Private Bank (Suisse) S.A, (hereafter the “Bank”)
hereby are pleased to extend to Platinum
Merger Sub, Inc. (account number NEW ACCOUNT) (hereafter called
the “Borrower”) a credit facility (hereafter called the “Facility”), subject to
the terms and conditions listed in this Agreement.
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Borrower:
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Platinum Merger Sub,
Inc., a company incorporated under the laws of the State of
Delaware, USA, with its registered address at 0000 Xxxxxxxxxxx
Xxxx, xxxxx 000, Xxxxxxxxxx,
XX
00000, XXX.
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Amount:
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Up
to USD 64’000’000
(Sixty Four Million U.S. Dollars) or equivalent in any freely available
currency.
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Purpose:
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To
finance purchase of the company TECHTEAM. The
Bank shall not be held responsible for the actual utilization of the
Facility.
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The
portfolio guaranteeing this loan does not include any TECHTEAM stocks
(TEAM listed on NASDAQ).
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The
Borrower acknowledges that borrowings under the Facility may increase the
Borrower’s financial risk (leverage effect) and that the Borrower’s
commitment hereunder is not dependent upon the value or performance of the
securities.
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Utilisation:
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Overdrafts
and/or Loans.
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Interest
Rate:
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The
Borrower shall pay interest at the rate of 0.6% p.a. over the LIBOR
for the corresponding currency and interest periods up to three months.
The interest rate on fixed-term advances will be fixed by the Bank two
days prior to the value date and be calculated on the basis of the exact
number of days / 360 days. The interest rate on overdrafts will be fixed
by the Bank periodically and be calculated on the exact number of days /
360 days.
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Interest
Payment:
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Interest
shall be due and payable on a quarterly basis. All payments of interest
and other sums due there under are to be made without set-off,
counterclaims, free and clear and without deductions of any kind, of
taxes, levies or otherwise present or
future.
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page
1 / 6
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Termination
date:
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The
Facility will terminate six months from the date of this Agreement.
However, at the Termination Date the Facility may be renewed tacitly for
successive periods of six months. Notwithstanding the foregoing, the Bank
may terminate the Facility at any time at its sole discretion, subject to
30 days notice. Upon termination of the Facility, all amounts still
outstanding under the Facility shall immediately become due and
payable.
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Acceptable
Collateral:
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As
security for the Borrower’s obligations under this Agreement, the Borrower
and/or third parties agree to pledge at all times to the Bank a portfolio
of marketable securities, fiduciary deposits, bank guarantees, deposits
and cash (the “Collateral”).
The
Bank determines at its sole discretion which part of the Collateral is
acceptable for the purpose of this Agreement and which specific rate of
advance shall apply for each of the underlying securities (the “Acceptable
Collateral”). The aggregate market value of each of the underlying
securities of the Acceptable Collateral multiplied by its specific rate of
advance as defined by the Bank at its sole discretion (the “Coverage”)
must at all times exceed the sum of all amounts outstanding under the
Bridge Facility.
The
Bank may, from time to time, at its sole discretion, modify the rate of
advance of the Acceptable Collateral. The Borrower may request at any time
a statement of the Acceptable Collateral and the respective
Coverage.
For
the purpose of this Facility, the margin on a security is defined as the
difference between 100% of the market value of a security and the advance
rate of a security, expressed in %.
To
the extent any outstanding portion of the Facility is not covered by
Acceptable Collateral denominated in the same currency, the Bank reserves
its right to require an additional margin of 10% or more, depending on the
currency, to cover the currency risk of this uncovered
portion.
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Guarantee:
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A
payment guarantee in the amount of USD 28’000’000 issued by HSBC Bank
(Brasil) SA (the “Guarantor”) with an expiry date exceeding the
termination date by no less than 30 days.
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Legal
Fees/Other Fees:
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All
costs associated with this Agreement, relating to the regularization or
enforcement of any Collateral pledged to the Bank shall be for the
Borrower’s account.
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1.
CONDITIONS PRECEDENT:
Prior to
the first utilization the Bank shall have received the following documents, in
form and substance satisfactory to it:
page 2
/ 6
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1.
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The
Bank’s account opening forms including the General Conditions and Pledge
Agreement and any other loan and foreign exchange trading documentation as
the Bank may require (together the “Account Opening
Documents”).
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2.
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The
duplicate copy of this Agreement, duly signed by the
Borrower.
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3.
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The
Guarantee
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4.
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A
pledge by a third party in respect of cash and deposits (the “Third Party
Pledge”) to be held by the Bank at all times until full repayment of all
amounts under the Credit Facility.
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2.
REPRESENTATIONS AND WARRANTIES:
The
Borrower hereby represents and warrants that on the date hereof, and shall be
deemed to represent and warrant at all times:
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a)
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The
Borrower (i) is a company duly authorized, validly existing and in good
standing under the laws of its place of incorporation, (ii) is duly
qualified to do business, (iii) has all requisite power and
authority, corporate or otherwise, to conduct its business, to own its
properties, and to execute, deliver and perform each of its obligations
under this Agreement and any other agreement, instrument or document
delivered hereunder, and (iv) is not subject to bankruptcy, insolvency or
liquidation proceedings under the laws of any relevant
jurisdiction.
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b)
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The
execution, delivery and performance of this Agreement and all transactions
contemplated hereunder (i) are within the Borrower’s corporate power, (ii)
have been duly authorized by all necessary corporate action of Xxxxxxxx,
(iii) are made in conformity with the laws in force in the jurisdiction of
its incorporation, (iv) have been properly disclosed to its custodian or
depositary bank and (v) are not in contravention of any provision of law
or any agreement, indenture by which it is bound or by which
its properties may be affected, or of its Articles of Association and
internal regulations including its investment policy and
restrictions.
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c)
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The
Agreement is legally valid and binding and enforceable against the
Borrower in accordance with its
terms.
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d)
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No
consent or approval is necessary for the Borrower in connection with the
execution of this Agreement or the performance of the transactions
contemplated hereby;
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e)
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There
is no litigation, tax claim, action, suit or proceeding pending or, to the
best of its knowledge, threatened against or affecting the Borrower or its
assets before any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, the ultimate
outcome of which, if determined adversely to it, would have a significant
adverse effect on its ability to perform any of its obligations under this
Agreement or under any other agreement, instrument and document
contemplated in this Agreement.
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f)
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No
event has occurred and is continuing or would result from the entering
into this Agreement or performing the transactions contemplated hereunder
which constitutes or would constitute an Event of Default or which, upon a
lapse of time or notice or both, would become such an Event of
Default.
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page 3
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3.
AFFIRMATIVE COVENANTS OF THE BORROWER:
The
Borrower covenants to and agrees with the Bank that, so long as any amount
hereunder shall be outstanding and until full and final payment of any amount
due to it under this Agreement, instruments and documents contemplated in this
Agreement, it shall:
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a)
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notify
the Bank immediately upon becoming aware of the occurrence of any Event of
Default;
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b)
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promptly
notify the Bank of any change in its status with any securities regulatory
authority or any inquiry or notice received from such authority which
might have a material effect on its
operations;
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c)
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promptly
notify the Bank of any event that may have a substantial negative effect
on the financial, legal or reputational situation of the Borrower or on
the Borrower’s ability to perform its obligations under the
Agreement;
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d)
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promptly
notify the Bank, after obtaining knowledge of any occurrence which is
likely to render any of his representations and warranties made hereunder
incorrect or which is likely to result in the violation of any of his
affirmative or negative covenants
hereunder;
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e)
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discharge
its responsibility with regard to tax, in particular any withholding tax
that may be due as result of its tax domicile now or in the
future.
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4.
EVENTS OF DEFAULT:
Any one
of the following events shall constitute an Event of Default:
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a)
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A
material adverse change in the financial condition or business of the
Borrower or the Guarantor or issuer of the Third Party Pledge which the
Bank xxxxx xxx materially affect the ability of the Borrower or the
Guarantor or issuer of the Third Party Pledge to honour its commitment to
the Bank, including but not limited to bankruptcy and
receivership;
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b)
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A
material adverse change in the composition and amount of the Collateral
and/or Net Worth which the Bank xxxxx xxx materially affect the ability of
the Borrower to honour its commitment to the Bank, including but not
limited to bankruptcy and
receivership;
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c)
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Any
material breach in the terms of this Agreement on the part of the
Borrower;
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d)
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If
any of the information supplied or representations given by the Borrower
proves to be inaccurate or incomplete in a material
respect.
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e)
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If
the Borrower in accepting this Agreement breaches any provision of any
existing deed, agreement, or obligation of the Borrower made with or owed
to any other person;
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f)
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Any
other failure by the Borrower to repay when due and payable or discharge
in full any of its indebtedness or liabilities, including interest, to the
Bank or any other party;
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g)
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If
it becomes unlawful for the Bank to provide financing for the purpose
stated above
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h)
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Any
event which in the Bank’s reasonable opinion gives grounds for belief that
the Borrower or the Guarantor may not perform its respective obligations
as referred to in this Agreement.
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page 4
/ 6
If an
Event of Default occurs, then the undrawn part of the Facility shall be
cancelled and the outstanding balances and commitments together with interest
accrued shall become repayable. immediately upon demand by the Bank. As of the
time of such Event of Default, the Borrower will pay interest thereon at a rate
of 2% above the rate of interest agreed herein.
The
Borrower should as soon as it becomes aware of the same give written notice to
the Bank of any Event of Default, and hereby agrees to indemnify the Bank
against any claim, loss or reasonable cost or expenses incurred by the Bank as a
consequence of the occurrence of any Event of Default.
The
Borrower is fully responsible for the repayment of the credit facility and any
interest, costs, fees or losses that are incurred by the Bank by reason of the
Borrower’s failure to honour its obligations under this Agreement.
5.
APPLICABLE LAW AND JURISDICTION:
This
Agreement is governed by the laws of Switzerland and any dispute that could
arise between us shall be submitted to the ordinary courts of the Canton of
Geneva subject to appeals to the Swiss Federal Court. The Bank reserves,
however, the right to institute legal proceedings against the Borrower before
any other competent court.
6. NOTIFICATION:
Any
notice or other communication in connection with the Facility may be made in
writing sent by facsimile transmission, or by first class or airmail letter
postage prepaid, and shall be addressed to the intended recipient at its address
or facsimile number as such party shall have last specified by notice to the
other party. All such notices shall be effective upon receipt, and confirmation
by answer back of the faxed transmission of any such notice shall be sufficient
evidence of receipt thereof provided that the Bank shall be entitled to rely on
any notice or communication which it reasonably believes to have been sent or
made by the Borrower.
Notification to the Borrower
will be sent to:
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Attention:
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c/o
Stefanini IT Solutions,
Xxxxxxx
Xxxxxxxxxx Xxxxx Xxxx, 0000, 00xx Xxxxx
Xxx
Xxxxx 00000-000
Xxxxxx
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Notification to the Bank
will be sent to:
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Attention:
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Xx.
Xxxxxxx Xxxxxx &/or Xx. Xxxxxx
Xxxxxx
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HSBC
Private Bank (Suisse) S.A.
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Attention:
Credit Department
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Xxx
xx Xxxxxxxx 00-00,
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PO
Box 3580,
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CH-1211
Geneva 3
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Switzerland
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Fax
number: x00.00.000.00.00
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page 5
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This
agreement shall take effect upon receipt by the Bank of the duplicate original,
duly signed by the Borrower, no later than 31. December 2010, after which date
it shall be considered null and void
Please
acknowledge your agreement to the foregoing by signing and dating
below.
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Sincerely,
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HSBC
Private Bank (Suisse) S.A.
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/s/
X. Xxxxxx
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/s/ X.
Xxxxxx
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X.
Xxxxxx
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X.
Xxxxxx
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Read and
approved:
Borrower
PLATINUM
MERGER SUB
/s/ Xxxxxxx
Xxxxxxxx
By : Xxxxxxx
Xxxxxxxx, Secretary
Date : December
7, 2010
page 6
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