December 7, 2010
December
7, 2010
c/o
Stefanini IT Solutions, SA
Avenida
Brigadeiro Xxxxx Lima, 0000, 00xx
Floor
São Paulo
SP 001452-002
Brazil
Ladies
and Gentlemen:
BANK OF
AMERICA, N.A. (the “Lender”) is pleased
to make available to Platinum Merger Sub, Inc., a Delaware corporation (the
“Acquisition
Company”), a term loan facility on the terms and subject to the
conditions set forth below. Terms not defined herein have the
meanings assigned to them in Exhibit A
hereto.
1. The Facility.
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(a)
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The Term
Borrowing. Subject to the terms and conditions set forth
herein, the Lender agrees to make a single loan (the “Loan”) to the
Borrower on the Closing Date in an amount equal to
$30,000,000. Amounts borrowed under this Section 1(a)
and repaid or prepaid may not be reborrowed. The commitment of
the Lender to make the Loan shall terminate upon the earlier to occur of
(i) the Closing Date and (ii) 12:00 noon on December 30,
2010.
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(b)
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Borrowing and
Conversions. Notwithstanding any contrary provision
contained herein, the borrowing of the Loan on the Closing Date shall be
made at the Base Rate. Such borrowing and any conversion of the
Loan from one Type to the other shall be made upon the Borrower’s
irrevocable notice to the Lender, which may be given by telephone if
promptly confirmed in writing in a Loan Notice. Each such
notice must be received by the Lender not later than 10:00 a.m. (i) on the
Closing Date, in the case of the borrowing of the Loan; and (ii) three
Business Days prior to the requested date of any conversion of the Loan
from one Type to the other. Each conversion to Eurodollar Rate
Loans shall be in a principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof. Each conversion to Base Rate
Loans shall be in a principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof. Each such notice (whether
telephonic or written) shall specify (1) whether the Borrower is
requesting the borrowing of the Loan on the Closing Date or a conversion
of the Loan from one Type to the other; (2) if applicable, the requested
date of any conversion (which shall be a Business Day); (3) the principal
amount of the Loan to be borrowed or converted; (4) if applicable, the
Type of Loan to be converted; and (5) the Borrower’s account
information.
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(c)
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Interest. At
the option of the Borrower, the Loan shall bear interest at a rate per
annum equal to (i) the Eurodollar Rate plus 0.45%; or
(ii) the Base Rate plus
0.45%.
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All
computations of interest for Base Rate Loans (including Base Rate Loans
determined by reference to the Eurodollar Rate) shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days
elapsed. All other computations of fees and interest shall be made on
the basis of a 360-day year and actual days elapsed (which results in more fees
or interest, as applicable, being paid than if computed on the basis of a
365-day year).
The
Borrower promises to pay interest (i) for each Eurodollar Rate Loan, (A) on the
last day of each Interest Period, and (B) on the date of any conversion of such
Loan to a Base Rate Loan; (ii) for Base Rate Loans, on the last Business Day of
each calendar quarter; and (iii) for all Loans, on the Maturity
Date. If the time for any payment is extended by operation of law or
otherwise, interest shall continue to accrue for such extended
period.
After the
date any principal amount of the Loan is due and payable (whether on the
Maturity Date, upon acceleration or otherwise), or after any other monetary
obligation hereunder shall have become due and payable (in each case without
regard to any applicable grace periods), the Borrower shall pay, but only to the
extent permitted by law, interest (after as well as before judgment) on such
amounts at a rate per annum equal to the Default Rate. Furthermore,
while any Event of Default exists, the Borrower shall pay interest on the
principal amount of the Loan at a rate per annum equal to the Default
Rate. Accrued and unpaid interest on past due amounts shall be
payable on demand.
In no
case shall interest hereunder exceed the amount that the Lender may charge or
collect under applicable law.
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(d)
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Evidence of
Loans. The Loan and all payments thereon shall be
evidenced by the Lender’s loan accounts and records; provided that,
upon the request of the Lender, the Loan may be evidenced by a promissory
note in the form of Exhibit B
hereto in addition to such loan accounts and records. Such loan
accounts, records and promissory note shall be conclusive absent manifest
error of the amount of the Loan and payments thereon. Any
failure to record the Loan or payment thereon or any error in doing so
shall not limit or otherwise affect the obligation of the Borrower to pay
any amount owing with respect to the
Loan.
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(e)
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Repayment. The
Borrower promises to pay all of the Loan then outstanding on the Maturity
Date.
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The
Borrower shall make all payments required hereunder not later than 11:00 a.m. on
the date of payment in same day funds in Dollars at the Lender’s
Office.
All
payments by the Borrower to the Lender hereunder shall be made to the Lender in
full without set-off or counterclaim and free and clear of and exempt from, and
without deduction or withholding for or on account of, any present or future
taxes, levies, imposts, duties or charges of whatsoever nature imposed by any
government or any political subdivision or taxing authority
thereof. The Borrower shall reimburse the Lender for any taxes
imposed on or withheld from such payments (other than taxes imposed on the
Lender’s income, and franchise taxes imposed on the Lender, by the jurisdiction
under the laws of which the Lender is organized or any political subdivision
thereof).
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(f)
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Prepayments. The
Borrower may, upon three Business Days’ notice received by the Lender not
later than 10:00 a.m., in the case of Eurodollar Rate Loans, and upon
same-day notice in the case of Base Rate Loans, prepay the Loan on any
Business Day; provided that
the Borrower pays all Breakage Costs (if any) associated with such
prepayment on the date of such prepayment. Prepayments of
Eurodollar Rate Loans must be accompanied by a payment of interest on the
amount so prepaid. Prepayments of Eurodollar Rate Loans must be
in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in
excess thereof. Prepayments of Base Rate Loans must be in a
principal amount of at least $5,000,000 or, if less, the entire principal
amount thereof then outstanding.
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Notwithstanding
any contrary provision contained herein, the Borrower shall promptly prepay in
full in cash all of the outstanding Loan, together with accrued and unpaid
interest thereon, if the Merger has not occurred on or prior to April 1,
2011.
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2.
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(a)
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Conditions Precedent to
Loan. The obligation of the Lender to make the Loan on
the Closing Date is subject to satisfaction of the following conditions
precedent:
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(i)
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The
Lender must receive the following from the Borrower, in each case in form
and substance satisfactory to the
Lender:
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(A)
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executed
counterparts of this Agreement, duly executed by (1) a Responsible Officer
of, and delivered on behalf of, the Borrower, and (2) the
Guarantors;
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(B)
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a
properly completed Loan Notice, requesting the borrowing of the Loan at
the Base Rate and delivered on the Closing Date in accordance with Section 1(b)
above;
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(C)
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such
certificates of resolutions or other action, incumbency certificates
and/or other certificates of Responsible Officers of the Borrower as the
Lender may require evidencing the identity, authority and capacity of each
Responsible Officer thereof authorized to act as a Responsible Officer in
connection with this Agreement and the other Loan Documents to which the
Borrower is a party;
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(D)
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such
documents and certifications as the Lender may reasonably require to
evidence that the Borrower is duly organized or
formed;
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(E)
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a
certificate signed by a Responsible Officer of the Borrower certifying
that (1) each representation and warranty set forth in Section 3 below
is true and correct in all material respects as of the Closing Date and
(2) the Borrower is Solvent after giving effect to the
Loan;
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(F)
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a
favorable opinion of DLA Piper LLP (US), counsel to the Borrower,
addressed to the Lender, as to such matters concerning the Borrower and
the Loan Documents as the Lender may reasonably
request;
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(G)
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if
requested by the Lender, a promissory note as contemplated in Section 1(d)
above;
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(H)
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the
SBLC in original form, as properly issued by MLIB;
and
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(I)
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such
other documents and certificates (including legal opinions) as the Lender
may reasonably request.
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(ii)
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The
Lender shall have received all fees (including all legal fees) and
expenses required to be paid on or before the Closing
Date.
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(iii)
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All
governmental and third party approvals necessary or advisable in
connection with the Tender Offer and the Merger, the transactions
contemplated by the Loan Documents and the continuing operations of the
Acquisition Company, the Target and their respective subsidiaries shall
have been obtained and be in full force and effect, and all applicable
waiting periods shall have expired without any action being taken or
threatened by any competent authority which would restrain, prevent or
otherwise impose adverse conditions on the Tender Offer or the Merger or
the financing thereof. The Tender Offer and the Merger shall
not violate or conflict with any applicable law, statute, rule or
regulation or result in a default under any material agreement of the
Acquisition Company, the Target or any of their respective
subsidiaries.
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(iv)
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There
shall exist no pending or threatened litigation, proceedings or
investigations which (A) could reasonably be expected to prevent or
otherwise adversely impact the consummation of the Tender Offer or the
Merger or (B) could reasonably be expected to have a Material Adverse
Effect on the Acquisition Company, the Target or any of their respective
subsidiaries.
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(v)
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The
Lender shall be satisfied that the Tender Offer, the Merger and the
transactions contemplated by the Loan Documents shall, in all respects,
comply with applicable margin regulations (Federal Reserve Board
Regulations T, U and X).
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(b)
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Conditions to Each
Conversion. As a condition precedent to each conversion
of any Loan:
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(i)
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The
Borrower must furnish the Lender with a Loan Notice in accordance with
Section
1(b) above;
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(ii)
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each
representation and warranty set forth in Section 3 below
shall be true and correct in all material respects as if made on the date
of such conversion; and
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(iii)
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no
Default shall have occurred and be continuing on the date of such
conversion.
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Each
notice of conversion shall be deemed a representation and warranty by the
Borrower that the conditions referred to in clauses (ii) and
(iii) above
have been met.
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3.
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Representations and
Warranties. The Borrower represents and warrants
that:
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(a)
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Existence and Qualification;
Power; Compliance with Laws. It (i) is a corporation
duly organized or formed, validly existing and in good standing under the
laws of the State of Delaware; (ii) has the power and authority and the
legal right to (A) own and operate its properties, to lease the properties
it operates and to conduct its business and (B) execute, deliver and
perform its obligations under the Loan Documents; (iii) is duly qualified
and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of properties or the conduct of its business
requires such qualification; and (iv) is in compliance with all applicable
laws and regulations, except in each case referred to in clause (ii)(A),
(iii) or
(iv), to
the extent that failure to do so could not reasonably be expected to have
a Material Adverse Effect.
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(b)
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Authorization; Enforceable
Obligations; No Contravention. The execution, delivery
and performance of this Agreement and the other Loan Documents by the
Borrower have been duly authorized by all necessary action, and this
Agreement is and the other Loan Documents, when executed, will be legal,
valid and binding obligations of the Borrower, enforceable in accordance
with their respective terms. The execution, delivery and
performance of this Agreement and the other Loan Documents are not in
contravention of law or of the terms of the Borrower’s organic documents
and will not result in the breach of or constitute a default under, or
result in the creation of a Lien or require a payment to be made under any
indenture, agreement or undertaking to which the Borrower is a party or by
which it or its property may be bound or
affected.
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(c)
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No
Default. No Default has occurred and is
continuing.
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(d)
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Use of
Proceeds. The proceeds of the Loans will be used solely
to purchase Shares in connection with the Tender
Offer.
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(e)
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Full
Disclosure. No statement (whether written or oral) made
by or on behalf of the Borrower to the Lender in connection with this
Agreement (including the negotiation hereof), or in connection with the
Loan, contains any untrue statement of a material fact or omits a material
fact necessary to make the statement made not
misleading.
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(f)
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Taxpayer Identification
Number. The Borrower’s true and correct U.S. taxpayer
identification number is set forth beneath its signature
below.
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4.
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Covenants. So
long as principal of and interest on the Loan or any other amount payable
hereunder or under any other Loan Document remains unpaid or
unsatisfied:
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(a) Affirmative
Covenants. The Borrower shall:
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(i)
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preserve
and maintain all of its rights, privileges and franchises necessary or
desirable in the normal conduct of its
business;
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(ii)
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comply
with the requirements of all applicable laws, rules, regulations, and
orders of governmental authorities;
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(iii)
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pay
and discharge when due all taxes, assessments, and governmental charges or
levies imposed on it or on its income or profits or any of its property,
except for any such tax, assessment, charge, or levy the payment of which
is being contested in good faith and by proper proceedings and against
which adequate reserves are being
maintained;
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(iv)
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maintain
all of its properties owned or used in its business in good working order
and condition ordinary wear and tear excepted;
and
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(v)
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following
the consummation of the Merger, deliver to the Lender, in each case for
the Borrower and its Subsidiaries on a consolidated basis, (A) audited
financial statements, within 90 days following the end of each fiscal year
of the Borrower, and (B) unaudited financial statements, within 45 days
following the end of the first six months of each fiscal year of the
Borrower.
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(b)
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Negative
Covenants. The Borrower shall
not:
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(i)
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create,
incur, assume or suffer to exist any indebtedness, other
than:
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(A)
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prior
to the consummation of the Merger, indebtedness under (1) the Loan
Documents and (2) the HSBC Credit Agreement;
and
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(B)
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following
the consummation of the Merger, (1) indebtedness of the Borrower in
existence at the time of the Merger, (2) indebtedness of the Borrower
incurred in the ordinary course of business in a manner consistent with
historical practice, and (3) Permitted Other Indebtedness; provided that,
for purposes of this clause (B)(3),
both before and immediately after giving effect to the incurrence of such
Permitted Other Indebtedness, no Default or Event of Default shall have
occurred and be continuing; or
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(ii)
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create,
incur, assume or suffer to exist any Lien upon any of its property, assets
or revenues, whether now owned or hereafter acquired, other than Liens on
or in respect of (A) the Shares and (B) indebtedness permitted pursuant to
Section
4(b)(i) above; or
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(iii)
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prior
to the consummation of the Merger, make any Investments, except for (A)
the purchase of the Shares and (B) Investments consisting of cash and cash
equivalents; or
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(iv)
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other
than in connection with the Merger, merge, dissolve, liquidate,
consolidate with or into another Person, or dispose of (whether in one
transaction or in a series of transactions) all or substantially all of
its assets (whether now owned or hereafter acquired) to or in favor of any
Person; provided that
the Borrower shall not be prohibited from selling the Shares for fair
value cash consideration; or
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(v)
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prior
to the consummation of the Merger, engage in any business activity other
than in connection with the Borrower’s purchase and continuing ownership
of the Shares; or
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(vi)
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prior
to the consummation of the Merger, permit any material modification of the
documentation in respect of the Tender Offer or the Merger, without the
prior approval of the Lender; or
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(vii)
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sell,
transfer, lease or otherwise dispose of, or grant to any Person options,
warrants or other rights with respect to any of its properties or assets,
other than (A) any such transaction with respect to the Shares or (B)
transactions in the ordinary course of business in a manner consistent
with historical practice; or
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(viii)
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declare
or make, directly or indirectly, any Restricted Payment, or incur any
obligation (contingent or otherwise) to do so, or sell any of its equity
interests; or
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(ix)
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enter
into any transaction of any kind with any Affiliate of the Borrower,
whether or not in the ordinary course of business, other than on fair and
reasonable terms substantially as favorable to the Borrower or such
Affiliate as would be obtainable by the Borrower or such Affiliate at the
time in a comparable arm’s length transaction with a Person other than an
Affiliate; or
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(x)
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enter
into any contractual obligation (other than this Agreement, any other Loan
Document and the HSBC Credit Agreement) that limits the ability of the
Borrower to create, incur, assume or suffer to exist Liens on property of
the Borrower (other than Liens in respect of the Shares);
or
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(xi)
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permit
the Shares to be pledged to, or held in any securities account or other
account that is pledged to, MLIB as support for the
SBLC.
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5.
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Events of
Default. The following are “Events of
Default”:
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(a)
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The
Borrower fails to pay any principal of the Loan as and on the date when
due; or
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(b)
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The
Borrower fails to pay any interest on any Loan, or any commitment fee due
hereunder, or any portion thereof, within three days after the date when
due; or the Borrower fails to pay any other fee or amount payable to the
Lender under any Loan Document, or any portion thereof, within five days
after the date due; or
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(c)
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The
Borrower fails to perform or observe any term, covenant or agreement
contained in Section 4
above; or
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(d)
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The
Borrower fails to perform or observe any other covenant or agreement (not
specified above) contained in any Loan Document on its part to be
performed or observed and such failure continues for 30 days;
or
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(e)
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Any
representation, warranty, certification or statement of fact made or
deemed made by or on behalf of the Borrower or any Guarantor herein, in
any other Loan Document, or in any document delivered in connection
herewith or therewith shall be incorrect or misleading when made or deemed
made; or
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Platinum
Merger Sub, Inc.
December
7, 2010
Page
10
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(f)
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The
Borrower or any of its Subsidiaries (i) fails to make any payment in
respect of any indebtedness (other than indebtedness hereunder) or
guaranty obligation when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise), or (ii) fails to observe
or perform any other agreement or condition relating to any such
indebtedness or guaranty obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
shall occur, the effect of which default or other event is to cause, or to
permit the holder or holders of such indebtedness or beneficiary or
beneficiaries of such guaranty obligation (or a trustee or agent on behalf
of such holder or holders or beneficiary or beneficiaries) to cause, with
the giving of notice if required, such indebtedness to be demanded or
become due or to be repurchased, prepaid, defeased or redeemed
(automatically or otherwise), or an offer to repurchase, prepay, defease
or redeem such indebtedness to be made, prior to its stated maturity, or
such guaranty obligation to become payable or cash collateral in respect
thereof to be demanded; or
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(g)
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The
Borrower, any of its Subsidiaries or any Guarantor institutes or consents
to the institution of any proceeding under Debtor Relief Laws, or makes an
assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of
its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of the Borrower, such Subsidiary or such Guarantor
and the appointment continues undischarged or unstayed for 60 calendar
days; or any proceeding under Debtor Relief Laws relating to the Borrower,
any of its Subsidiaries or any Guarantor or to all or any material part of
the Borrower’s, such Subsidiary’s or such Guarantor’s property is
instituted without the consent of the Borrower, such Subsidiary or such
Guarantor and continues undismissed or unstayed for 60 calendar days, or
an order for relief is entered in any such proceeding;
or
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(h)
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The
Borrower or any Guarantor is unable or admits in writing its inability or
fails generally to pay its debts as they become due;
or
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(i)
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One
or more final judgments against the Borrower or any of its Subsidiaries is
entered for the payment of money in an aggregate amount (as to all such
judgments) in excess of $3,500,000 and such judgment remains unsatisfied
without procurement of a stay of execution within 10 calendar days after
the date of entry of judgment; or
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Platinum
Merger Sub, Inc.
December
7, 2010
Page
11
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(j)
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Any
Loan Document, at any time after its execution and delivery and for any
reason other than the agreement of the Lender or satisfaction in full of
all the indebtedness hereunder, ceases to be in full force and effect or
is declared by a court of competent jurisdiction to be null and void,
illegal, invalid or unenforceable in any respect; or the Borrower or any
Guarantor denies that it has any or further liability or obligation under
any Loan Document, or purports to revoke, terminate or rescind any Loan
Document; or
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(k)
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The
SBLC, at any time after its issuance and delivery and for any reason other
than the agreement of the Lender or satisfaction in full of all the
indebtedness hereunder, ceases to be in full force and effect, is declared
by a court of competent jurisdiction to be null and void, illegal, invalid
or unenforceable in any respect, or be subject to any court order or
injunction with respect to any payment or draw on or in respect thereof;
or MLIB denies that it has any or further liability or obligation under,
or purports to revoke, terminate or rescind, the SBLC;
or
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(l) A
Change of Control occurs.
Upon the
occurrence of an Event of Default, the Lender may declare all sums outstanding
hereunder and under the other Loan Documents, including all interest thereon, to
be immediately due and payable, whereupon the same shall become and be
immediately due and payable, without notice of default, presentment or demand
for payment, protest or notice of nonpayment or dishonor, or other notices or
demands of any kind or character, all of which are hereby expressly waived;
provided that
upon the occurrence of an actual or deemed entry of an order for relief with
respect to the Borrower under any Debtor Relief Law, all sums outstanding
hereunder and under each other Loan Document, including all interest thereon,
shall become and be immediately due and payable, without notice of default,
presentment or demand for payment, protest or notice of nonpayment or dishonor,
or other notices or demands of any kind or character, all of which are hereby
expressly waived.
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6.
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Guaranty
Provisions.
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(a)
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Each
Guarantor hereby jointly and severally, absolutely, unconditionally and
irrevocably, as primary obligor and not merely as
surety:
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(i)
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guarantees
the full and punctual payment when due, whether at stated maturity, by
required prepayment, declaration, acceleration, demand or otherwise, of
all Obligations now or hereafter existing, whether for principal, interest
(including interest accruing at the then applicable rate provided in this
Agreement after the occurrence of any Default set forth in Section 5
above, whether or not a claim for post-filing or post-petition interest is
allowed under applicable law following the institution of a proceeding
under bankruptcy, insolvency or similar laws), fees, reimbursement
obligations, expenses, indemnities, or otherwise (including all such
amounts which would become due but for the operation of the automatic stay
under Section 362(a) of the United States Bankruptcy Code, 11 U.S.C.
§362(a), and the operation of Sections 502(b) and 506(b) of the United
States Bankruptcy Code, 11 U.S.C. §502(b) and §506(b));
and
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Platinum
Merger Sub, Inc.
December
7, 2010
Page
12
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(ii)
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indemnifies
and holds harmless the Lender for any and all costs and expenses
(including reasonable attorneys’ fees and expenses) incurred by the Lender
in enforcing any rights under this
Guaranty;
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provided that
each Guarantor shall only be liable under this Guaranty for the maximum
amount of such liability that can be hereby incurred without rendering
this Guaranty, as it relates to such Guarantor, voidable under applicable
law relating to fraudulent conveyance or fraudulent transfer, and not for
any greater amount; and provided, further, that
the foregoing sentence is intended solely to preserve the rights of the
Lender to the maximum extent not subject to avoidance under applicable
law, and no Guarantor nor any other Person shall have any right or claim
under this paragraph with respect to such maximum amount, except to the
extent necessary so that the obligations of any Guarantor hereunder shall
not be rendered voidable under applicable law. Each Guarantor
agrees that the Obligations may at any time and from time to time exceed
the maximum amount of liability that can be incurred by each Guarantor
without impairing this Guaranty or affecting the rights and remedies of
the Lender hereunder; provided that
nothing in this sentence shall be construed to increase any Guarantor’s
obligations hereunder beyond the maximum amount of liability that can be
incurred by such Guarantor.
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This
Guaranty constitutes a guaranty of payment when due and not of collection,
and each Guarantor specifically agrees that it shall not be necessary or
required that the Lender exercise any right, assert any claim or demand or
enforce any remedy whatsoever against the Borrower, any Guarantor or any
other Person before or as a condition to the obligations of such Guarantor
hereunder.
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Platinum
Merger Sub, Inc.
December
7, 2010
Page
13
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(b)
|
This
Guaranty shall in all respects be a continuing, absolute, unconditional
and irrevocable guaranty of payment, and shall remain in full force and
effect until the Termination Date has occurred. The liability
of each Guarantor is continuing and relates to any Obligation, including
that arising under successive transactions which shall either continue the
Obligations or from time to time renew such Obligations after they have
been satisfied. Each Guarantor jointly and severally guarantees
that the Obligations will be paid strictly in accordance with the terms of
each Loan Document under which they arise, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the Lender with respect
thereto. The liability of each Guarantor under this Guaranty
shall be joint and several, absolute, unconditional and irrevocable
irrespective of:
|
|
|
(i)
|
any
lack of validity, legality or enforceability of any Loan
Document;
|
|
|
|
(ii)
|
the
failure of the Lender (i) to assert any claim or demand or to enforce any
right or remedy against the Borrower, any Guarantor or any other Person
(including any other guarantor) under the provisions of any Loan Document
or otherwise, or (ii) to exercise any right or remedy against any other
guarantor (including any Guarantor) of, or collateral securing, any
Obligations;
|
|
|
(iii)
|
any
change in the time, manner or place of payment of, or in any other term
of, all or any part of the Obligations, or any other extension, compromise
or renewal of any Obligation; by operation of law or otherwise and to the
fullest extent permitted by applicable law, each Guarantor waives any
defense arising out of any such extension, compromise or renewal even
though that such extension, compromise or renewal may operate, pursuant to
applicable law, to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of any Guarantor against the Borrower
or any other Guarantor or any
security;
|
Platinum
Merger Sub, Inc.
December
7, 2010
Page
14
|
|
(iv)
|
any
reduction, limitation, impairment or termination of any Obligations for
any reason, including any claim of waiver, release, surrender, alteration
or compromise, and shall not be subject to (and each Guarantor hereby
waives any right to or claim of) any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity,
illegality, nongenuineness, irregularity, compromise, unenforceability of,
or any other event or occurrence affecting, any Obligations or
otherwise;
|
|
|
(v)
|
any
amendment to, rescission, waiver, or other modification of, or any consent
to or departure from, any of the terms of any Loan
Document;
|
|
|
(vi)
|
any
addition, exchange or release of any collateral or of any Person that is
(or will become) a guarantor (including a Guarantor hereunder) of the
Obligations, or any surrender, release, invalidity or non-perfection of
any collateral, or any amendment to or waiver or release of or addition
to, or consent to or departure from, any other guaranty held by the Lender
securing any of the Obligations;
|
|
|
(vii)
|
any
change in the corporate existence, structure or ownership of the Borrower
or any other guarantor of or other person liable for any of the
Obligations;
|
|
|
(viii)
|
any
insolvency, bankruptcy, reorganization or other similar proceeding
affecting the Borrower or any Guarantor, or their assets or any resulting
release or discharge of any obligation of the Borrower or any Guarantor;
or
|
|
|
(ix)
|
any
other circumstance which might otherwise constitute a defense available
to, or a legal or equitable discharge of, the Borrower, any Guarantor, any
surety or any other guarantor.
|
|
|
(c)
|
Each
Guarantor hereby irrevocably waives (i) any defense arising by reason of
any disability or other defense of the Borrower or any other guarantor, or
the cessation from any cause whatsoever (including any act or omission of
the Lender) of the liability of the Borrower; (b) any defense based on any
claim that such Guarantor’s obligations exceed or are more burdensome than
those of the Borrower; (c) the benefit of any statute of limitations
affecting such Guarantor’s liability hereunder; (d) any right to proceed
against the Borrower, proceed against or exhaust any security for the
Obligations, or pursue any other remedy in the power of the Lender
whatsoever; (e) any benefit of and any right to participate in any
security now or hereafter held by the Lender; and (f) to the fullest
extent permitted by law, any and all other defenses or benefits that may
be derived from or afforded by applicable law limiting the liability of or
exonerating guarantors or sureties. Each Guarantor expressly
waives all setoffs and counterclaims and all presentments, demands for
payment or performance, notices of nonpayment or nonperformance, protests,
notices of protest, notices of dishonor and all other notices or demands
of any kind or nature whatsoever with respect to the Obligations, and all
notices of acceptance of this Guaranty or of the existence, creation or
incurrence of new or additional
Obligations.
|
Platinum
Merger Sub, Inc.
December
7, 2010
Page
15
|
|
(d)
|
If
acceleration of the time for payment of any of the Obligations is stayed
upon the insolvency, bankruptcy or reorganization of the Borrower, all
such amounts otherwise subject to acceleration under the terms of any
agreement relating to the Obligations shall nonetheless be payable by the
Guarantors forthwith on demand by the
Lender.
|
|
|
(e)
|
No
Guarantor shall not exercise any right of subrogation, contribution,
indemnity, reimbursement or similar rights with respect to any payments it
makes under this Guaranty until the Termination Date. If any
amounts are paid to any Guarantor in violation of the foregoing
limitation, then such amounts shall be held in trust for the benefit of
the Lender and shall forthwith be paid to the Lender to reduce the amount
of the Obligations, whether matured or
unmatured.
|
|
|
(f)
|
In
the event of the death of any Guarantor, the liability of the estate of
such deceased Guarantor shall continue in full force and effect as to (i)
the Obligations existing at the date of death, and any renewals or
extensions thereof. As to all surviving Guarantors, this
Guaranty shall continue in full force and effect after the death of a
Guarantor.
|
|
|
(g)
|
If,
and to the extent that, Brazilian law shall be deemed to apply to any or
all of the Guarantors’ obligations hereunder, for those
purposes:
|
|
|
(i)
|
the
Guarantors agree that their obligations to make payment hereunder
shall be deemed to be a first demand obligation (garantia exigível à primeira
demanda) to fulfill and comply with, as a joint and several
responsibility (responsabilidade
solidária), all of the outstanding obligations assumed by the
Borrower under the Agreement, in the capacity of a “FIADOR E PRINCIPAL PAGADOR,
solidariamente responsável” with the Borrower, in connection
therewith. In addition, for such purposes, the Guarantors
hereby expressly (A) waive and renounce the benefit of order (benefício de ordem) of
demanding and rights provided by the Brazilian Civil Code (Law 10,406/02),
specifically in accordance with Articles 827 et seq. of the Brazilian
Civil Code and (ii) recognize that this Guaranty shall not be considered
as a limited instrument of guarantee, for the purposes of Article 822 of
the Brazilian Civil Code;
|
Platinum
Merger Sub, Inc.
December
7, 2010
Page
16
|
|
(ii)
|
the
Guarantors expressly waive the benefits set forth in Articles 366, 831,
834, 835, 836, 837, 838 and 839 of the Brazilian Civil Code (Law
10.406/02), and Article 595 of the Code of Civil Procedure (Law 5,869/73);
and
|
|
|
(iii)
|
for
purposes hereof and to the extent it is required pursuant to the
applicable law now existing or that may be enacted at any time hereafter,
each of the Guarantors hereby (A) represents that it has obtained
and/or (B) undertakes to promptly obtain the relevant authorizations
and/or licenses from, and to effect the relevant registrations with, the
relevant government bodies and agencies (including, but not limited to,
the Central Bank of Brazil and the Federal Revenues Office) in connection
with the execution of this Agreement, the guaranty hereunder and the
remittance of any payments by the Guarantors of any amounts under
this Agreement to the
Lender.
|
|
7.
|
Miscellaneous.
|
|
|
(a)
|
All
financial computations required under this Agreement shall be made, and
all financial information required under this Agreement shall be prepared,
in accordance with generally accepted accounting principles consistently
applied.
|
|
|
(b)
|
Unless
otherwise specified, all references herein to times of day shall be
references to Eastern time (daylight or standard, as
applicable).
|
|
|
(c)
|
The
Borrower shall be obligated to pay all Breakage
Costs.
|
Platinum
Merger Sub, Inc.
December
7, 2010
Page
17
|
|
(d)
|
If
at any time the Lender, in its sole discretion, determines that (i)
adequate and reasonable means do not exist for determining the Eurodollar
Rate, or (ii) the Eurodollar Rate does not accurately reflect the funding
cost to the Lender of making such Loans, the Lender’s obligation to make
or maintain Eurodollar Rate Loans shall cease for the period during which
such circumstance exists.
|
|
|
(e)
|
The
Borrower shall reimburse or compensate the Lender, upon demand, for all
costs incurred, losses suffered or payments made by the Lender which are
applied or reasonably allocated by the Lender to the transactions
contemplated herein (all as determined by the Lender in its reasonable
discretion) by reason of any and all future reserve, deposit, capital
adequacy or similar requirements against (or against any class of or
change in or in the amount of) assets, liabilities or commitments of, or
extensions of credit by, the Lender; and compliance by the Lender with any
directive, or requirements from any regulatory authority, whether or not
having the force of law.
|
|
|
(f)
|
No
amendment or waiver of any provision of this Agreement or
of any other Loan Document and no consent by the Lender to any
departure therefrom by the Borrower shall be effective unless such
amendment, waiver or consent shall be in writing and signed by a duly
authorized officer of the Lender, and any such amendment, waiver or
consent shall then be effective only for the period and on the conditions
and for the specific instance specified in such writing. No
failure or delay by the Lender in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or
the exercise of any other rights, power or
privilege.
|
|
|
(g)
|
Except
as otherwise expressly provided herein, notices and other communications
to each party provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed or sent by telecopy
to the address provided from time to time by such party. Any
such notice or other communication sent by overnight courier service, mail
or telecopy shall be effective on the earlier of actual receipt and (i) if
sent by overnight courier service, the scheduled delivery date, (ii) if
sent by mail, the fourth Business Day after deposit in the U.S. mail first
class postage prepaid, and (iii) if sent by telecopy, when transmission in
legible form is complete. All notices and other communications
sent by the other means listed in the first sentence of this paragraph
shall be effective upon receipt. Notwithstanding anything to
the contrary contained herein, all notices (by whatever means) to the
Lender pursuant to Section 1(b)
hereof shall be effective only upon receipt. Any notice or
other communication permitted to be given, made or confirmed by telephone
hereunder shall be given, made or confirmed by means of a telephone call
to the intended recipient at the number specified in writing by such
Person for such purpose, it being understood and agreed that a voicemail
message shall in no event be effective as a notice, communication or
confirmation hereunder.
|
Platinum
Merger Sub, Inc.
December
7, 2010
Page
18
The
Lender shall be entitled to rely and act upon any notices (including telephonic
notices of borrowings and conversions) purportedly given by or on behalf of the
Borrower even if (i) such notices were not made in a manner specified herein,
were incomplete or were not preceded or followed by any other form of notice
specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. The Borrower shall indemnify
each Indemnitee from all losses, costs, expenses and liabilities resulting from
the reliance by such Person on each notice purportedly given by or on behalf of
the Borrower. All telephonic notices to and other communications with
the Lender may be recorded by the Lender, and the Borrower hereby consents to
such recording.
|
|
(h)
|
This
Agreement shall inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Borrower may not assign
its rights and obligations hereunder. The Lender may at any
time (i) assign all or any part of its rights and obligations hereunder to
any other Person, and (ii) grant to any other Person participating
interests in all or part of its rights and obligations hereunder without
notice to the Borrower. The Borrower agrees to execute any
documents reasonably requested by the Lender in connection with any such
assignment. All information provided by or on behalf of the
Borrower to the Lender or its affiliates may be furnished by the Lender to
its affiliates and to any actual or proposed assignee or
participant.
|
|
|
(i)
|
The
Borrower shall pay the Lender, on demand, all reasonable out-of-pocket
expenses and legal fees (including the allocated costs for in-house legal
services) incurred by the Lender in connection with the preparation and
enforcement of this Agreement or any instruments or agreements executed in
connection herewith.
|
Platinum
Merger Sub, Inc.
December
7, 2010
Page
19
|
|
(j)
|
The
Borrower shall indemnify and hold harmless the Lender, its affiliates, and
their respective partners, directors, officers, employees, agents and
advisors (collectively, the “Indemnitees”)
against, and hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related expenses (including the fees,
charges and disbursements of any counsel for any Indemnitee), incurred by
any Indemnitee or asserted against any Indemnitee by any third party or by
the Borrower arising out of, in connection with, or as a result of
(i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby,
the performance by the parties hereto of their respective obligations
hereunder or thereunder, or the consummation of the transactions
contemplated hereby or thereby, (ii) any Loan or the use or proposed use
of the proceeds therefrom, or (iii) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a
third party or by the Borrower, and regardless of whether any Indemnitee
is a party thereto; provided that
such indemnity shall not as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct
of such Indemnitee or (y) result from a claim brought by the Borrower
against the Lender for breach in bad faith of the Lender’s obligations
hereunder or under any other Loan Document, if the Borrower has obtained a
final and nonappealable judgment in its favor on such claim as determined
by a court of competent jurisdiction. To the fullest extent
permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of,
this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby, the transactions contemplated hereby or thereby, any
Loan or the use of the proceeds thereof. No Indemnitee shall be
liable for any damages arising from the use by unintended recipients of
any information or other materials distributed to such unintended
recipients by such Indemnitee through telecommunications, electronic or
other information transmission systems in connection with this Agreement
or the other Loan Documents or the transactions contemplated hereby or
thereby other than for direct or actual damages resulting from the gross
negligence or willful misconduct of such Indemnitee as determined by a
final and nonappealable judgment of a court of competent
jurisdiction. The agreements in this Section 7(j)
shall survive the termination of the Commitment and the repayment,
satisfaction or discharge of all the other obligations and liabilities of
the Borrower under the Loan Documents. All amounts due under
this Section
7(j) shall be payable within ten Business Days after demand
therefor.
|
Platinum
Merger Sub, Inc.
December
7, 2010
Page
20
|
|
(k)
|
If
any provision of this Agreement or the other Loan Documents is held to be
illegal, invalid or unenforceable, (i) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other
Loan Documents shall not be affected or impaired thereby and (ii) the
parties shall endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid
or unenforceable provisions. The invalidity of a provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other
jurisdiction.
|
|
|
(l)
|
This
Agreement may be executed in one or more counterparts, and each
counterpart, when so executed, shall be deemed an original but all such
counterparts shall constitute but one and the same
instrument.
|
|
|
(m)
|
THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS ARE GOVERNED BY, AND SHALL BE
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK. THE BORROWER AND EACH GUARANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT AND EACH STATE COURT IN
THE CITY OF NEW YORK, NEW YORK AND ANY APPELLATE COURT FROM ANY THEREOF,
IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY OF THE LOAN
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT. EACH OF THE BORROWER AND THE
GUARANTORS IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES OF SUCH PROCESS TO
THE BORROWER OR SUCH GUARANTOR AT ITS ADDRESS SET FORTH BENEATH ITS
SIGNATURE HERETO. EACH OF THE BORROWER AND THE GUARANTORS
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT
SHALL AFFECT ANY RIGHT THAT THE LENDER MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AGAINST THE BORROWER, ANY GUARANTOR OR THEIR RESPECTIVE PROPERTIES IN THE
COURTS OF ANY JURISDICTION (INCLUDING
BRAZIL).
|
Platinum
Merger Sub, Inc.
December
7, 2010
Page
21
|
|
(n)
|
THE
BORROWER, EACH GUARANTOR AND THE LENDER EACH WAIVES ITS RESPECTIVE RIGHTS
TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
|
|
|
(o)
|
The
Lender hereby notifies the Borrower that pursuant to the requirements of
the USA PATRIOT Act (Title III of Pub.L. 107-56 (signed into law October
26, 2001)) (the “Act”), the
Lender is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address
of the Borrower and other information that will allow the Lender to
identify the Borrower in accordance with the Act. The Borrower
shall, promptly following a request by the Lender, provide all
documentation and other information that the Lender requests in order to
comply with its ongoing obligations under applicable “know your customer”
and anti-money laundering rules and regulations, including the
Act.
|
|
|
(p)
|
For
any purposes hereof, including, but not limited to, the enforcement,
collection and payment of the Loan and Guaranty in Brazil, in the Lender’s
sole discretion, the parties hereto agree that (i) the Loan shall be
deemed as an enforceable out-of-court debt instrument (título executivo
extra-judicial), pursuant to Section 585, II, of the Brazilian
Civil Procedure Code (Law 5,073/75); (ii) all amounts (including, without
limitation, the principal, interests, expenses and taxes) owed by the
Borrower herein shall be deemed as a net and certain debt (dívida liquida e certa)
to the extent that the Lender is required to enforce, collect or defend
them before any Brazilian Courts and authorities against the Borrower
and/or any Guarantors. The Borrower and the Guarantors further
acknowledge and consent that any discussion or enforcement and collection
of the Loan and related amounts in Brazil shall be made through an
expedite enforcement claim (ação de execução) or
any other means elected by the Lender, at its sole discretion; and (iii)
in accordance with Section 585, § 2th, of the Brazilian Civil Procedure
Code (Law 5,073/75), this Agreement complies with all the requirements of,
and contains all the formalities of, the place where it has been
executed. The Borrower agrees that any evidence of payment
of the principal amount due under this Agreement in the amount set forth
herein, shall constitute valid and sufficient evidence of the validity and
enforceability of this Agreement before any Brazilian Courts, as the case
may be. Finally, the Borrower and the Guarantors agree that the
Lender shall be waived to present any bonds or security, including, but
not limited to, the one set forth in Article 835 of Brazilian Civil Code
or any other similar, for the discussion or enforcement of this Agreement
and/or the Loan before any Brazilian Courts, being agreed that
the Borrower and the Guarantors hereby expressly waive any right to
request the Lender to post any bond required to initiate or file
lawsuits against the Borrower and/or the Guarantors in any
jurisdiction.
|
Platinum
Merger Sub, Inc.
December
7, 2010
Page
22
|
|
(q)
|
Each
Guarantor hereby irrevocably appoints the Borrower (in such capacity, the
“Process
Agent”) as its agent and true and lawful attorney-in-fact in its
name, place and stead to accept on its behalf service of copies of the
summons and complaint and any other process that may be served in any such
suit, action or proceeding brought in the State of New York, and agrees
that the failure of the Process Agent to give any notice of any such
service of process to it shall not impair or affect the validity of such
service or, to the extent permitted by applicable Laws, the enforcement of
any judgment based thereon. Such appointment shall be
irrevocable until the final payment of all amounts payable under this
Agreement and the other Loan Documents, except that if for any reason the
Process Agent appointed hereby ceases to be able to act as such, then each
Guarantor shall, by an instrument reasonably satisfactory to the Lender,
appoint another Person in the Borough of Manhattan as such Process Agent
subject to the approval of the Lender. Each Guarantor covenants
and agrees that it shall take any and all reasonable action, including the
execution and filing of any and all powers of attorney and other
documents, that may be necessary to continue the designation of the
Process Agent pursuant to this paragraph in full force and effect and to
cause the Process Agent to act as
such.
|
|
|
Nothing
herein shall in any way be deemed to limit the ability of the Lender to
serve any process or summons in any manner permitted by applicable laws or
to obtain jurisdiction over any Guarantor in Brazil or any other
jurisdiction, and in such manner, as may be permitted by applicable
laws.
|
|
|
(r)
|
This
is an international loan transaction in which the specification of Dollars
and payment in New York, New York is of the essence, and the obligation of
the Borrower and each Guarantor under this Agreement and the other Loan
Documents to make payment to the Lender in Dollars shall not be discharged
or satisfied by any tender or recovery pursuant to any judgment expressed
in or converted into any other currency or in another place except to the
extent that on the Business Day following receipt of any such tender or
recovery the Lender may in accordance with normal banking procedures
purchase Dollars in the amount originally due to it with the judgment
currency. If for the purpose of obtaining judgment in any court
it is necessary to convert a sum due hereunder in Dollars into another
currency (in this Section called the “judgment
currency”), then the rate of exchange that shall be applied shall
be that at which in accordance with normal banking procedures the Lender
could purchase such sum in Dollars at New York, New York with the judgment
currency on the Business Day preceding the day on which such judgment is
rendered. The obligations of the Borrower or any Guarantor in
respect of any such sum due from it to the Lender hereunder (in this
Section called an “Entitled
Person”) shall, notwithstanding the rate of exchange actually
applied in rendering such judgment, be discharged only to the extent that
on the Business Day following receipt by such Entitled Person of any sum
adjudged to be due hereunder in the judgment currency such Entitled Person
may in accordance with normal banking procedures purchase and transfer
Dollars to New York, New York with the amount of the judgment currency so
adjudged to be due; and each of the Borrower and the Guarantors hereby, as
a separate obligation and notwithstanding any such judgment, agrees to
indemnify such Entitled Person against, and to pay such Entitled Person on
demand, in Dollars, the amount (if any) by which the sum originally due to
such Entitled Person in Dollars hereunder exceeds the amount of the
Dollars so purchased and transferred. If the amount of Dollars
so purchased and transferred to the Entitled Person exceeds the amount
originally due to such Entitled Person, then such Entitled Person shall
transfer, or caused to be transferred, to the Borrower the amount of such
excess.
|
Platinum
Merger Sub, Inc.
December
7, 2010
Page
23
|
|
(s)
|
THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE
PARTIES.
|
Please
indicate your acceptance of the Commitment on the foregoing terms and conditions
by returning an executed copy of this Agreement to the undersigned.
|
BANK
OF AMERICA, N.A.
|
|||
|
|
By:
|
/s/ Xxxxxxx Xxxxxxxx Xxxxxxx | |
| Name: | Xxxxxxx Xxxxxxxx Xxxxxxx | ||
| Title: | Senior Vice President | ||
Platinum
Merger Sub, Inc.
December
7, 2010
Page
24
Accepted
and Agreed to as of the date first written above:
BORROWER:
PLATINUM
MERGER SUB, INC.
By: /s/ Xxxxxxx
Xxxxxxxx
Name:
Xxxxxxx
Xxxxxxxx
Title:
Secretary
U.S.
Taxpayer Identification Number: 00-0000000
Date:
December 7,
2010
Witnessed
by:
|
_________________________________
|
_________________________________
|
GUARANTORS:
/s/ Xxxxx Xxxxxxx
Xxxxxxxxx
XXXXX
XXXXXXX XXXXXXXXX
Address:
____________________
____________________
____________________
/s/ Xxxxx Xxxxx
Xxxxxxx
XXXXX
XXXXX XXXXXXX
Address:
____________________
____________________
____________________
EXHIBIT
A
DEFINITIONS
|
Affiliate:
|
With
respect to any Person, another Person that directly, or indirectly through
one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified.
|
|
Agreement:
|
This
letter agreement, as amended, restated, extended, supplemented or
otherwise modified in writing from time to time.
|
|
Bank
of America
|
Bank
of America, N.A. and its successors.
|
|
Base
Rate:
|
For
any day, a fluctuating rate per annum equal to the highest of (a) the
Federal Funds Rate plus ½ of 1%, (b) the rate of interest in effect for
such day as publicly announced from time to time by Bank of America as its
“prime rate,” and (c) the Eurodollar Rate plus 1.00%. The “prime rate” is
a rate set by Bank of America based upon various factors including Bank of
America’s costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which
may be priced at, above, or below such announced rate. Any
change in such prime rate announced by Bank of America shall take effect
at the opening of business on the day specified in the public announcement
of such change.
|
|
Base
Rate Loan:
|
A
Loan bearing interest based on the Base Rate.
|
|
Borrower:
|
Prior
to the consummation of the Merger, the Acquisition Company and,
immediately upon the consummation of the Merger, the Target, as the
survivor of the Merger with the Acquisition Company.
|
|
Breakage
Costs:
|
Any
loss, cost or expense incurred by the Lender (including any loss of
anticipated profits and any loss or expense arising from the liquidation
or reemployment of funds obtained by the Lender to maintain the relevant
Eurodollar Rate Loan or from fees payable to terminate the deposits from
which such funds were obtained) as a result of (i) any conversion, payment
or prepayment of any Eurodollar Rate Loan on a day other than the last day
of the Interest Period therefor (whether voluntary, mandatory, automatic,
by reason of acceleration, or otherwise); or (ii) any failure by the
Borrower (for a reason other than the failure of the Lender to make a Loan
when all conditions to making such Loan have been met by the Borrower in
accordance with the terms hereof) to prepay, borrow or convert any
Eurodollar Rate Loan on a date or in the amount notified by the
Borrower. The certificate of the Lender as to its costs of
funds, losses and expenses incurred shall be conclusive absent manifest
error.
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- 1
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Business
Day:
|
Any
day other than a Saturday, Sunday or other day on which commercial banks
are authorized to close under the laws of, or are in fact closed in, the
state where the Lender’s Office is located or São Paulo, Brazil, and, if
such day relates to any Eurodollar Rate Loan, means any such day that is
also a London Banking Day.
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|
Change
of Control:
|
An
event or series of events by which either (a) the Guarantors or (b)
Stefanini International Holdings Ltd, a company incorporated and
registered under the laws of England and Wales, shall cease to own,
directly or indirectly, 100% of the equity securities of the Borrower
entitled to vote for members of the board of directors or equivalent
governing body of the Borrower on a fully-diluted
basis.
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|
Closing
Date:
|
The
first date all the conditions precedent in Section 2(a) are satisfied or waived by the
Lender.
|
|
Code:
|
The
Internal Revenue Code of 1986, as amended from time to
time.
|
|
Control:
|
The
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or
otherwise.
|
|
Debtor
Relief Laws:
|
The
Bankruptcy Code of the United States, as amended from time to time, and
all other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief laws of the United States or
other applicable jurisdictions from time to time in effect and affecting
the rights of creditors generally.
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|
Default:
|
Any
event or condition that constitutes an Event of Default or that, with the
giving of any notice, the passage of time, or both, would be an Event of
Default.
|
|
Default
Rate:
|
An
interest rate equal to the Base Rate plus 2% per annum; provided that with respect to a Eurodollar
Rate Loan, the Default Rate shall be an interest rate equal to the
interest rate otherwise applicable to such Loan plus 2% per annum.
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|
Dollar
or $:
|
The
lawful currency of the United States of
America.
|
- 2
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Eurodollar
Rate:
|
(a)
For any Interest Period with respect to a Eurodollar Rate Loan, the rate
per annum equal to (i) the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or
such other commercially available source providing quotations of BBA LIBOR
as may be designated by the Lender from time to time) at approximately
11:00 a.m., London time, two London Banking Days prior to the commencement
of such Interest Period, for Dollar deposits (for delivery on the first
day of such Interest Period) with a term equivalent to such Interest
Period or, (ii) if such rate is not available at such time for any reason,
the rate per annum determined by the Lender to be the rate at which
deposits in Dollars for delivery on the first day of such Interest Period
in same day funds in the approximate amount of the Eurodollar Rate Loan
being made or converted and with a term equivalent to such Interest Period
would be offered by Bank of America’s London Branch to major banks in the
London interbank
(b)
For any interest calculation with respect to a Base Rate Loan on any date,
the rate per annum equal to (i) BBA LIBOR, at approximately 11:00 a.m.,
London time determined two London Banking Days prior to such date for
Dollar deposits being delivered in the London interbank market for a term
of one month commencing that day or (ii) if such published rate is not
available at such time for any reason, the rate per annum determined by
the Lender to be the rate at which deposits in Dollars for delivery on the
date of determination in same day funds in the approximate amount of the
Base Rate Loan being made or maintained and with a term equal to one month
would be offered by Bank of America’s London Branch to major banks in the
London interbank Eurodollar market at their request at the date and time
of determination.
|
|
Eurodollar
Rate Loan:
|
A
Loan bearing interest based on the Eurodollar Rate.
|
|
Event
of Default:
|
Has
the meaning set forth in Section
5.
|
- 3
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Federal
Funds Rate:
|
For
any day, the rate per annum equal to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided that (a) if such day is
not a Business Day, the Federal Funds Rate for such day shall be such rate
on such transactions on the next preceding Business Day as so published on
the next succeeding Business Day, and (b) if no such rate is so published
on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole
multiple of 1/100 of 1%) charged to Bank of America on such day on such
transactions as determined by the Lender.
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|
Guaranty:
|
The
Guaranty made by the Guarantors under Section 6 above in favor of the
Lender.
|
|
Guarantors:
|
Collectively,
Xxxxx Xxxxxxx Xxxxxxxxx and Xxxxx Xxxxx Xxxxxxx.
|
|
HSBC
Credit Agreement:
|
Certain
documentation between the Borrower and HSBC Bank relating to certain
financing arrangements entered into solely in connection with the Tender
Offer.
|
|
Indemnitee:
|
Has
the meaning set forth in Section
7(j).
|
|
Interest
Period:
|
As
to each Eurodollar Rate Loan, the period commencing on the date such
Eurodollar Rate Loan is disbursed or converted to a Eurodollar Rate Loan
and ending on the date three months thereafter; provided that:
(a) any
Interest Period that would otherwise end on a day that is not a Business
Day shall be extended to the next succeeding Business Day unless such
Business Day falls in another calendar month, in which case such Interest
Period shall end on the next preceding Business Day;
(b) any
Interest Period that begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest Period;
and
(c) no
Interest Period shall extend beyond the Maturity
Date.
|
- 4
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Investment:
|
Any
direct or indirect acquisition or investment by such Person, whether by
means of (a) the purchase or other acquisition of capital stock or other
securities of another Person; (b) a loan, advance or capital contribution
to, guarantee or assumption of debt of, or purchase or other acquisition
of any other debt or equity participation or interest in, another Person,
including any partnership or joint venture interest in such other Person
and any arrangement pursuant to which the investor guarantees indebtedness
of such other Person, or (c) the purchase or other acquisition (in one
transaction or a series of transactions) of assets of another Person that
constitute a business unit. For purposes of covenant
compliance, the amount of any Investment shall be the amount actually
invested, without adjustment for subsequent increases or decreases in the
value of such Investment.
|
|
Xxxxxx’s
Office:
|
Such
address as the Lender may from time to time notify to the
Borrower.
|
|
Lien:
|
Any
mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or
other security interest or preferential arrangement in the nature of a
security interest of any kind or nature whatsoever (including any
conditional sale or other title retention agreement, any easement, right
of way or other encumbrance on title to real property, and any financing
lease having substantially the same economic effect as any of the
foregoing).
|
|
Loan
Documents:
|
Collectively,
this Agreement (including the Guaranty) and the promissory note, if any,
delivered in connection with this Agreement.
|
|
Loan
Notice:
|
A
notice of the borrowing of the Loan or any conversion of the Loan from one
Type to the other, in substantially the form of Exhibit C.
|
|
London
Banking Day:
|
Any
day on which dealings in Dollar deposits are conducted by and between
banks in the London interbank Eurodollar market.
|
|
Material
Adverse Effect:
|
(a)
A material adverse change in, or a material adverse effect upon, the
operations, business, properties, liabilities (actual or contingent),
condition (financial or otherwise) or prospects of the Borrower or the
Borrower and its subsidiaries taken as a whole; (b) a material impairment
of the ability of the Borrower to perform its obligations under any Loan
Document; or (c) a material adverse effect upon the legality, validity,
binding effect or enforceability against the Borrower of any Loan
Document.
|
|
Maturity
Date:
|
364
days from the Closing Date, or such earlier date on which the Commitment
may terminate in accordance with the terms
hereof.
|
- 5
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|
Merger:
|
The
merger of the Acquisition Company with and into the Target, as soon as
practicable following the completion of the Tender Offer and the making of
the Loan pursuant hereto.
|
|
MLIB
|
Xxxxxxx
Xxxxx International Bank, London Branch, and its
successors.
|
|
Obligations:
|
All
advances to, and debts, liabilities, obligations, covenants and duties of,
the Borrower and the Guarantors arising under any Loan Document or
otherwise with respect to the Loan, whether direct or indirect (including
those acquired by assumption), absolute or contingent, due or to become
due, now existing or hereafter arising and including interest and fees
that accrue after the commencement by or against any the Borrower, any
Guarantor or any Affiliate thereof of any proceeding under any Debtor
Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such
proceeding.
|
|
Permitted
Other Indebtedness:
|
Indebtedness,
other than indebtedness described in Sections 4(b)(i)(B)(1) and (2), that does not (a) have pricing terms
(including interest rate, margin, original issue discount, premium, fees
and default rate) that are more advantageous to the holders of such
indebtedness than the terms of the Loan, or an overall yield in excess of
the yield on the Loan; (b) provide for dates for payment of principal,
interest, premium (if any) or fees which are earlier than such dates
hereunder; (c) provide for covenants, events of default or remedies which
are more restrictive on the Borrower than those set forth herein; or (d)
provide for collateral securing indebtedness thereunder, in each case
unless the Lender has been afforded the opportunity to amend the
provisions of the Loan Documents to conform to any and all such provisions
of such indebtedness in a manner that is in form and substance
satisfactory to the Lender.
|
|
Person:
|
Any
natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, governmental authority or
other entity.
|
|
Responsible
Officer:
|
The
chief executive officer, president, chief financial officer, treasurer,
assistant treasurer or controller of the Borrower and, solely for purposes
of the delivery of incumbency certificates pursuant to Section 2(a)(i)(C), the secretary or any
assistant secretary of the Borrower. Any document delivered
hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Loan Party and such
Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.
|
- 6
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|
Restricted
Payment:
|
Any
dividend or other distribution (whether in cash, securities or other
property) with respect to any capital stock or other equity interest of
the Borrower, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancellation or
termination of any such capital stock or other equity interest, or on
account of any return of capital to the Borrower’s stockholders, partners
or members (or the equivalent Person thereof).
|
|
SBLC:
|
A
standby letter of credit, issued by MLIB for the benefit of the Lender,
with an original face amount of $30,000,000 and otherwise in form and
substance satisfactory to the Lender.
|
|
Shares:
|
The
issued and outstanding shares of common stock, $0.01 par value per share,
of the Target.
|
|
Solvent:
|
With
respect to any Person on any date of determination, that on such date
(a) the fair value of the property of such Person is greater than the
total amount of liabilities, including contingent liabilities, of such
Person; (b) the present fair salable value of the assets of such
Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured; (c) such Person does not intend to, and does not believe
that it will, incur debts or liabilities beyond such Person’s ability to
pay such debts and liabilities as they mature; (d) such Person is not
engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person’s property would
constitute an unreasonably small capital; and (e) such Person is able to
pay its debts and liabilities, contingent obligations and other
commitments as they mature in the ordinary course of
business. The amount of contingent liabilities at any time
shall be computed as the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured
liability.
|
|
Subsidiary:
|
With
respect to any Person, a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for
the election of directors or other governing body (other than securities
or interests having such power only by reason of the happening of a
contingency) are at the time beneficially owned, or the management of
which is otherwise controlled, directly, or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries”
refer to a Subsidiary or Subsidiaries of the Borrower.
|
|
Target:
|
TechTeam
Global, Inc., a Delaware corporation.
|
|
Tender
Offer:
|
The
cash tender offer made by the Borrower for the Shares at a price of $8.35
per Share, pursuant to the Offer to Purchase for Cash by the Borrower,
dated as of November 12, 2010.
|
|
Termination
Date:
|
The
date on which all Obligations have been paid in full in
cash.
|
|
Type:
|
The
character of the Loan as a Base Rate Loan or a Eurodollar Rate
Loan.
|
- 7
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EXHIBIT
B
FORM
OF PROMISSORY NOTE
$30,000,000 December
7, 2010
FOR VALUE
RECEIVED, the undersigned, Platinum Merger Sub, Inc., a Delaware corporation
(the “Borrower”), hereby
promises to pay to the order of BANK OF AMERICA, N.A. (the “Lender”) the
principal sum of Thirty Million Dollars ($30,000,000) or, if less, the aggregate
unpaid principal amount of the Loan made by the Lender to the Borrower pursuant
to the letter agreement, dated as of even date herewith (such letter agreement,
as it may be amended, restated, extended, supplemented or otherwise modified
from time to time, being hereinafter called the “Agreement”), between
the Borrower and the Lender, on the Maturity Date. The Borrower
further promises to pay interest on the unpaid principal amount of the Loans
evidenced hereby from time to time at the rates, on the dates, and otherwise as
provided in the Agreement.
The loan
account records maintained by the Lender shall at all times be conclusive
evidence, absent manifest error, as to the amount of the Loans and payments
thereon; provided that any
failure to record the Loan or payment thereon or any error in doing so shall not
limit or otherwise affect the obligation of the Borrower to pay any amount owing
with respect to the Loan.
This
promissory note is the promissory note referred to in, and is entitled to the
benefits of, the Agreement, which Agreement, among other things, contains
provisions for acceleration of the maturity of the Loan evidenced hereby upon
the happening of certain stated events and also for prepayments on account of
principal of the Loan prior to the maturity thereof upon the terms and
conditions therein specified.
Unless
otherwise defined herein, terms defined in the Agreement are used herein with
their defined meanings therein. This promissory note shall be
governed by, and construed in accordance with, the laws of the State of New
York.
PLATINUM
MERGER SUB, INC.
By:_______________________
Name:_______________________
Title:_______________________
- 1
-
EXHIBIT
C
FORM
OF LOAN NOTICE
Date: ___________,
_____
|
To:
|
Bank
of America, N.A., as Lender
|
|
|
Ladies
and Gentlemen:
|
Reference
is made to that certain Agreement, dated as of December 7, 2010 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to
time, the “Agreement”; the terms
defined therein being used herein as therein defined), among Platinum Merger
Sub, Inc., a Delaware corporation (the “Borrower”), and Bank
of America, N.A., as Lender.
The
undersigned hereby requests (select one):
[
] A borrowing of the
Loan [
] A conversion of the Loan
1. On
(a Business Day).
2. In
the amount of
$ .
3. Comprised
of .
[Type of Loan requested]
4. The
Borrower’s account information is as follows:
[BORROWER]
By:____________________
Name:____________________
Title:______________________
___________________
1 Prior
to the consummation of the Merger, the Acquisition Company and, following the
consummation of the Merger, the name of the surviving entity of the Merger, as
successor to the Acquisition Company.
- 1
-
