Exhibit
10.19


 


 


LOAN AGREEMENT


 


 


between


 


 


VELTI SOFTWARE PRODUCTS AND RELATED PRODUCTS AND SERVICES
S.A.


 


 


and


 


 


BLACK SEA TRADE AND DEVELOPMENT BANK


 


 


Dated
31 August 2010


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I
  - DEFINITIONS

  	
   

  	
  1

  
	
  Section 1.01.

  	
  Definitions

  	
   

  	
  1

  
	
  Section 1.02.

  	
  Interpretation

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II
  - REPRESENTATIONS AND WARRANTIES

  	
   

  	
  16

  
	
  Section 2.01.

  	
  Representations Regarding
  the Borrower

  	
   

  	
  16

  
	
  Section 2.02.

  	
  Representations Regarding
  the Financing Agreements

  	
   

  	
  19

  
	
  Section 2.03.

  	
  Acknowledgement and
  Repetition

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III
  - LOAN

  	
   

  	
  20

  
	
  Section 3.01.

  	
  Amount and Currency

  	
   

  	
  20

  
	
  Section 3.02.

  	
  Disbursements

  	
   

  	
  20

  
	
  Section 3.03.

  	
  Suspension and
  Cancellation

  	
   

  	
  21

  
	
  Section 3.04.

  	
  Charges and Commissions

  	
   

  	
  22

  
	
  Section 3.05.

  	
  Interest

  	
   

  	
  22

  
	
  Section 3.06.

  	
  Default Interest

  	
   

  	
  23

  
	
  Section 3.07.

  	
  Market Disruption

  	
   

  	
  24

  
	
  Section 3.08.

  	
  Repayment

  	
   

  	
  24

  
	
  Section 3.09.

  	
  Prepayment

  	
   

  	
  26

  
	
  Section 3.10.

  	
  Payments

  	
   

  	
  28

  
	
  Section 3.11.

  	
  Insufficient Payments

  	
   

  	
  28

  
	
  Section 3.12.

  	
  Taxes

  	
   

  	
  29

  
	
  Section 3.13.

  	
  Unwinding Costs

  	
   

  	
  29

  
	
  Section 3.14.

  	
  Increased Costs

  	
   

  	
  30

  
	
  Section 3.15.

  	
  Illegality

  	
   

  	
  30

  
	
  Section 3.16.

  	
  Loan Account

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV
  - CONDITIONS PRECEDENT

  	
   

  	
  31

  
	
  Section 4.01.

  	
  First Disbursement of
  Tranche 1

  	
   

  	
  31

  
	
  Section 4.02.

  	
  First Disbursement of
  Tranche 2

  	
   

  	
  33

  
	
  Section 4.03.

  	
  All Disbursements

  	
   

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V
  - AFFIRMATIVE COVENANTS

  	
   

  	
  35

  
	
  Section 5.01.

  	
  Maintenance and Continuity
  of Business

  	
   

  	
  35

  
	
  Section 5.02.

  	
  Accounting

  	
   

  	
  35

  
	
  Section 5.03.

  	
  Continuing Governmental
  and Other Authorisations

  	
   

  	
  35

  
	
  Section 5.04.

  	
  Security

  	
   

  	
  35

  
	
  Section 5.05.

  	
  Compliance with Other
  Obligations

  	
   

  	
  36

  
	
  Section 5.06.

  	
  Taxes

  	
   

  	
  36

  
	
  Section 5.07.

  	
  Financial Ratios

  	
   

  	
  36

  
	
  Section 5.08.

  	
  Further Documents

  	
   

  	
  36

  
	
  Section 5.09.

  	
  Costs and Expenses

  	
   

  	
  37

  
	
  Section 5.10.

  	
  Ranking

  	
   

  	
  37

  
	
  Section 5.11.

  	
  Use of proceeds

  	
   

  	
  38

  
	
  Section 5.12.

  	
  Furnishing of Information

  	
   

  	
  38

  
	
  Section 5.13.

  	
  Systems

  	
   

  	
  40

  



 


i

















 


	
  ARTICLE VI
  - NEGATIVE COVENANTS

  	
   

  	
  40

  
	
  Section 6.01.

  	
  Dividends

  	
   

  	
  40

  
	
  Section 6.02.

  	
  Liens

  	
   

  	
  40

  
	
  Section 6.03.

  	
  Derivative Transactions

  	
   

  	
  40

  
	
  Section 6.04.

  	
  Arm’s Length Transactions

  	
   

  	
  41

  
	
  Section 6.05.

  	
  Profit-sharing and
  Management Arrangements

  	
   

  	
  41

  
	
  Section 6.06.

  	
  Investments

  	
   

  	
  41

  
	
  Section 6.07.

  	
  Financing Agreements

  	
   

  	
  41

  
	
  Section 6.08.

  	
  Changes in Business,
  Capital and Charter

  	
   

  	
  41

  
	
  Section 6.09.

  	
  Prepayment of Long-term
  Debt

  	
   

  	
  42

  
	
  Section 6.10.

  	
  Sale of Assets; Merger

  	
   

  	
  42

  
	
  Section 6.11.

  	
  Shareholding

  	
   

  	
  42

  
	
  Section 6.12.

  	
  Fraud and Corruption

  	
   

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII
  - EVENTS OF DEFAULT

  	
   

  	
  43

  
	
  Section 7.01.

  	
  Events of Default

  	
   

  	
  43

  
	
  Section 7.02.

  	
  Consequences of Default

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII
  - MISCELLANEOUS

  	
   

  	
  45

  
	
  Section 8.01.

  	
  Term of Agreement

  	
   

  	
  45

  
	
  Section 8.02.

  	
  Entire Agreement;
  Amendment and Waiver

  	
   

  	
  45

  
	
  Section 8.03.

  	
  Notices

  	
   

  	
  45

  
	
  Section 8.04.

  	
  English Language

  	
   

  	
  46

  
	
  Section 8.05.

  	
  Financial Calculations

  	
   

  	
  46

  
	
  Section 8.06.

  	
  Rights, Remedies and Waivers

  	
   

  	
  46

  
	
  Section 8.07.

  	
  Indemnification

  	
   

  	
  47

  
	
  Section 8.08.

  	
  Governing Law

  	
   

  	
  48

  
	
  Section 8.09.

  	
  Arbitration and
  Jurisdiction

  	
   

  	
  48

  
	
  Section 8.10.

  	
  Privileges and Immunities
  of the Bank

  	
   

  	
  49

  
	
  Section 8.11.

  	
  Waiver of Sovereign
  Immunity

  	
   

  	
  49

  
	
  Section 8.12.

  	
  Successors and Assigns;
  Third Party Rights

  	
   

  	
  50

  
	
  Section 8.13.

  	
  Disclosure

  	
   

  	
  50

  
	
  Section 8.14.

  	
  Counterparts

  	
   

  	
  50

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX
  - ACCOUNTS

  	
   

  	
  50

  
	
  Section 9.01.

  	
  General

  	
   

  	
  50

  
	
  Section 9.02.

  	
  Deposit Account:
  withdrawals

  	
   

  	
  51

  
	
  Section 9.03.

  	
  DSRA Account: withdrawals

  	
   

  	
  51

  
	
  Section 9.04.

  	
  Application

  	
   

  	
  51

  
	
  Section 9.05.

  	
  Charging

  	
   

  	
  51

  
	
  Section 9.06.

  	
  Representations and
  warranties

  	
   

  	
  52

  
	
   

  	
   

  	
   

  
	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE
  1 - DEFINITIONS AND GUIDELINES FOR FRAUD AND CORRUPTION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHECULE
  2 - LIST OF NEGATIVE PRODUCTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE
  3 - BSTDB FORMAT FOR ANNUAL ENVIRONMENTAL,

  	
   

  	
   

  



 


ii

















 


	
                            HEALTH
  AND SAFETY REPORTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT A
   -  FORM OF DISBURSEMENT
  APPLICATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT B
   -  FORM OF CERTIFICATE OF
  INCUMBENCY AND AUTHORITY

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT C
   -  FORM OF LETTER TO
  AUDITORS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT D
   -  FORM OF SECURITY
  CERTIFICATE

  	
   

  	
   

  



 


 


 


iii

















 


LOAN AGREEMENT


 


LOAN
AGREEMENT (this “Agreement”)
dated 31 August 2010 between VELTI
SOFTWARE PRODUCTS AND RELATED PRODUCTS AND SERVICES S.A. a société
anonyme organised and existing under the laws of the Hellenic Republic (the “Borrower”)
with its registered office at 44 Kifissias Avenue, 151 25 Marousi, Athens,
Greece, and the BLACK SEA TRADE AND
DEVELOPMENT BANK (the “Bank”).


 


ARTICLE I - DEFINITIONS


 


Section 1.01.        Definitions


 


Wherever used in this
Agreement (including the Exhibits and any Schedules), unless the context
otherwise requires, the following terms have the following meanings:


 


	
  “Account Bank”

  	
   

  	
  means Alpha Bank A.E., a
  company incorporated in the Hellenic Republic with its registered office at
  40 Stadiou Street, GR-10252, Athens, Hellenic Republic, acting for the
  purposes of this Agreement through its branch No. 146 at 60 Kifissias
  Avenue, Marousi, GR-15125, Athens, Hellenic Republic and includes its
  successors in title.

  
	
   

  	
   

  	
   

  
	
  “Accounts”

  	
   

  	
  means, together, the DSRA
  Account and the Deposit Account and “Account” means either of them.

  
	
   

  	
   

  	
   

  
	
  “Affiliate”

  	
   

  	
  means, with respect to any
  person, any other person, directly or indirectly, controlling, controlled by,
  or under common control with, such person.

  
	
   

  	
   

  	
   

  
	
  “Anti-Corruption Guidelines”

  	
   

  	
  means the Bank’s
  Definitions and Guidelines for Fraud and Corruption attached hereto as Schedule
  1.

  
	
   

  	
   

  	
   

  
	
  “Auditors”

  	
   

  	
  means such firm of
  independent accountants as the Borrower or, as the case may be, the Ultimate
  Parent may from time to time appoint as its auditors in accordance with
  Section 5.02.

  
	
   

  	
   

  	
   

  
	
  “Authorisation”

  	
   

  	
  means any consent, registration,
  filing, agreement, notarisation, certificate, license, approval, permit, authority
  or exemption from, by or with any Governmental Authority, whether given or
  withheld by express action or deemed given or withheld by failure to

  



 


1

















 


	
   

  	
   

  	
  act within any specified
  time period and all corporate, creditors’ and shareholders’ approvals or
  consents.

  
	
   

  	
   

  	
   

  
	
  “Bank Account Pledges”

  	
   

  	
  means, together, the
  Deposit Account Pledge and the DSRA Account Pledge and “Bank Account Pledge” means
  either of them.

  
	
   

  	
   

  	
   

  
	
  “Borrower Group”

  	
   

  	
  means, together, the
  Ultimate Parent, the Parent, the Borrower and their respective Subsidiaries
  and “member of the Borrower Group” shall be construed accordingly.

  
	
   

  	
   

  	
   

  
	
  “Business Day”

  	
   

  	
  means a day on which
  commercial banks are open for the transaction of general business (including
  dealings in foreign exchange and foreign currency deposits) in London, UK,
  Thessaloniki, Hellenic Republic and Athens, Hellenic Republic, and which is a
  TARGET Day.

  
	
   

  	
   

  	
   

  
	
  “Cash and Cash
  Equivalents”

  	
   

  	
  means at any time:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (a)

  	
  cash in hand or in an
  account or on deposit with any bank;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)

  	
  certificates of deposit,
  maturing within 12 months of such time, issued by a bank;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (c)

  	
  any investment in
  marketable obligations issued or guaranteed by the government of an OECD
  country or by an instrumentality or agency of the government of an OECD
  country having a credit rating equivalent to that country’s sovereign rating;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (d)

  	
  commercial papers or other
  debt securities issued by an issuer rated at least A-1 by Standard &
  Poor’s Corporation Ratings Group, a Division of the McGraw-Hill
  Companies, Inc. or P-1 by Moody’s Investors Service, Inc., with a
  maturity of less than 12 months and for which a recognised active market
  exists; or

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (e)

  	
  any other instrument,
  security or investment approved in writing by the Bank as forming part of the
  Cash and Cash Equivalents for the purposes of this Agreement (in each case as
  shown in the most recent consolidated Financial Statements of the Ultimate
  Parent and its Subsidiaries as of such date in accordance with US GAAP).

  



 


2

















 


	
  “Charter”

  	
   

  	
  means, in respect of any
  company, corporation, partnership, enterprise or other entity, its charter,
  founding act, articles of incorporation and bylaws, memorandum and articles
  of association, statutes or similar instrument.

  
	
   

  	
   

  	
   

  
	
  “Commitment Period”

  	
   

  	
  means:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (a)

  	
  in respect of Tranche 1,
  the period commencing on the date of this Agreement and terminating on the
  earlier of (i) the date nine months from the date of this Agreement and
  (ii) the date the obligation of the Bank to make Disbursements hereunder in
  respect of Tranche 1 terminates in accordance with the terms of this
  Agreement; and

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)

  	
  in respect of Tranche 2,
  the period commencing on the earlier of (i) the date Tranche 2 is
  declared available by the Bank and (ii) 1 July 2011 and terminating
  on the earlier of (i) the date six months thereafter and (ii) the
  date the obligation of the Bank to make Disbursements hereunder in respect of
  Tranche 2 terminates in accordance with the terms of this Agreement.

  
	
   

  	
   

  	
   

  	
   

  
	
  “Country of Operation”

  	
   

  	
  means the Hellenic
  Republic.

  
	
   

  	
   

  	
   

  
	
  “Debt”

  	
   

  	
  means, with respect to any
  person, all obligations of such person, whether incurred as principal or
  surety and whether present, future, actual or contingent, for the payment or
  repayment of money, including:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (a)     any amounts payable by such person under leases or similar
  arrangements over their respective periods;

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)     any credit to such person from a supplier of goods or under
  any instalment purchase or other similar arrangement; and

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (c)     any liabilities and obligations of third parties to the extent
  that they are guaranteed by such person or such person has otherwise assumed
  or become liable for the payment of such liabilities or obligations or to the
  extent that they are secured by any Lien upon property owned by such person
  whether or not such person has assumed or become liable for the payment of
  such liabilities or obligations.

  



 


3

















 


	
  “Default”

  	
   

  	
  means any Event of Default
  or any event which, with the giving of notice, the passage of time or the
  making of any determination, or any combination thereof, would become an
  Event of Default.

  
	
   

  	
   

  	
   

  
	
  “Default Interest

  	
   

  	
   

  
	
  Determination Date”

  	
   

  	
  means the date two
  Business Days prior to the first day of the relevant Default Interest Period
  (or, at the Bank’s option, the first day of such Default Interest Period).

  
	
   

  	
   

  	
   

  
	
  “Default Interest Period”

  	
   

  	
  means, with respect to any
  amount overdue under this Agreement, a period commencing on the day on which such
  payment becomes due or, as the case may be, on the last day of the previous
  Default Interest Period with respect to such overdue amount, and ending on a
  Business Day selected by the Bank.

  
	
   

  	
   

  	
   

  
	
  “Deposit Account”

  	
   

  	
  means an interest bearing
  Euro account of the Borrower opened by the Borrower with the Account Bank
  with account number 146 00 2320 013 710 and includes any sub-accounts thereof
  and any other account designated in writing by the Bank to be the Deposit
  Account for the purposes of this Agreement.

  
	
   

  	
   

  	
   

  
	
  “Deposit Account Pledge”

  	
   

  	
  means the instrument
  pursuant to which the Borrower grants to the Bank a first ranking security
  interest in the Deposit Account, together with the notices and acknowledgements
  and consents in the forms attached thereto, which instrument shall be in form
  and substance satisfactory to the Bank.

  
	
   

  	
   

  	
   

  
	
  “Disbursement”

  	
   

  	
  means the disbursement of any
  portion of the Loan from time to time pursuant to Section 3.02 or, as
  the context may require, the principal amount thereof from time to time
  outstanding.

  
	
   

  	
   

  	
   

  
	
  “DSRA Account”

  	
   

  	
  means an interest bearing
  Euro account of the Borrower opened by the Borrower with the Account Bank
  with account number 146 00 2320 013 728 and includes any sub-accounts thereof
  and any other account designated in writing by the Bank to be the DSRA
  Account for the purposes of this Agreement.

  
	
   

  	
   

  	
   

  
	
  “DSRA Account Pledge”

  	
   

  	
  means the instrument
  pursuant to which the Borrower grants to the Bank a first ranking security
  interest in the DSRA Account, together with the notices and acknowledgements
  and consents in the forms attached thereto, which instrument shall be in form
  and substance satisfactory to the Bank.

  



 


4

















 


	
  “EBIT”

  	
   

  	
  means Operating EBITDA but
  including the effect of depreciation and amortisation.

  
	
   

  	
   

  	
   

  
	
  “Environmental and Social Law”

  	
   

  	
  means any applicable law
  or regulation which relates to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (a)      pollution
  or protection of the environment, including related laws or regulations
  relating to public access to information and participation in
  decision-making;

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)      labour
  and employment conditions;

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (c)      occupational
  health and safety;

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (d)      public
  health, safety and security;

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (e)      indigenous
  peoples;

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (f)      cultural
  heritage; or

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (g)      resettlement
  or economic displacement of persons.

  
	
   

  	
   

  	
   

  
	
  “Environmental and Social
  Matter”

  	
   

  	
  means any matter that is
  the subject of any Environmental and Social Law.

  
	
   

  	
   

  	
   

  
	
  “Euro”, “EUR” or “€”

  	
   

  	
  means the lawful currency
  of the member states of the European Union that adopt the single currency in accordance
  with the Treaty Establishing the European Community, as amended by the Treaty
  on European Union and the Treaty of Amsterdam.

  
	
   

  	
   

  	
   

  
	
  “Event of Default”

  	
   

  	
  means any one of the
  events or occurrences specified in Section 7.01.

  
	
   

  	
   

  	
   

  
	
  “Financial Debt”

  	
   

  	
  means, with respect to any
  person, any Debt of such person for or in respect of (and without double
  counting):

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (a)      moneys
  borrowed;

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)      any
  amount raised by acceptance under any acceptance credit facility;

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (c)      any
  amount raised pursuant to any note purchase facility or the issue of bonds,
  notes, debentures, loan stock or any similar instrument (other than
  promissory notes in the ordinary course of trading);

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (d)      the
  amount of any liability in respect of any lease or hire purchase contract
  which would in accordance with US GAAP, be treated as

  



 


5

















 


	
   

  	
   

  	
  a finance or capital
  lease;

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (e)      receivables
  sold or discounted (other than any receivables to the extent they are sold on
  a non-recourse basis);

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (f)      any
  amount raised under any other transaction (including any forward sale or
  purchase agreement) having the commercial effect of borrowing;

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (g)      any
  derivative transaction entered into in connection with protection against or
  benefit from fluctuation in any rate or price (and, when calculating the
  value of any derivative transaction, only the marked to market value shall be
  taken into account);

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (h)      any
  counter-indemnity obligation in respect of a guarantee, indemnity, bond,
  standby or documentary letter of credit or any other instrument issued by a
  bank or financial institution (excluding any guarantees issued in favour of
  any governmental authority in respect of taxes of such person); and

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (i)      the
  amount of any liability in respect of any guarantee or indemnity for any of
  the items referred to in paragraphs (a) to (h) above (excluding any
  guarantees issued in favour of any governmental authority in respect of taxes
  of such person).

  
	
   

  	
   

  	
   

  
	
  “Financial Statements”

  	
   

  	
  means the consolidated and
  unconsolidated financial statements (including balance sheet, income
  statement, statement of changes in equity, cash flow statement and notes,
  comprising a summary of significant accounting policies and other explanatory
  notes) of (a) the Borrower and its Subsidiaries prepared in accordance
  with Generally Accepted Accounting Principles and (b) of the Ultimate Parent
  and its Subsidiaries prepared in accordance with US GAAP.

  
	
   

  	
   

  	
   

  
	
  “Financial Year”

  	
   

  	
  means the period
  commencing each year on 1 January and ending on the following 31
  December, or such other period as the Borrower or, as the case may be, the
  Ultimate Parent may, with the Bank’s consent, from time to time designate as
  the accounting year of the Borrower or the Ultimate Parent or its Subsidiaries,
  respectively.

  
	
   

  	
   

  	
   

  
	
  “Financing Agreements”

  	
   

  	
  means:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (a)      this
  Agreement,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)      the
  Parent Guarantee,

  



 


6














 


	
   

  	
   

  	
  (c)               the Ultimate Parent
  Guarantee,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (d)              the Share Retention
  Agreement,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (e)               the Security Documents,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (f)                 the Letter of Information,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (g)              the Disbursement
  applications referred to in Section 3.02, and

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (h)              any other agreements
  entered into between the Borrower or any other member of the Borrower Group
  or any other party and the Bank and notices, certificates and applications
  issued by the Borrower or any other member of the Borrower Group or any other
  party to the Bank in each case in connection with this Agreement or the transactions
  contemplated by this Agreement.

  
	
   

  	
   

  	
   

  
	
  “First Principal Repayment

  	
   

  	
   

  
	
  Date for Tranche 2”

  	
   

  	
  means the Interest Payment
  Date immediately preceding the date falling twenty four months after the date
  of the first Disbursement for Tranche 2.

  
	
   

  	
   

  	
   

  
	
  “Generally Accepted

  	
   

  	
   

  
	
  Accounting Principles”

  	
   

  	
  means accounting
  principles generally accepted in the Hellenic Republic and consistently
  applied.

  
	
   

  	
   

  	
   

  
	
  “Guarantees”

  	
   

  	
  means, together, the
  Parent Guarantee and the Ultimate Parent Guarantee and “Guarantee” means
  either of them.

  
	
   

  	
   

  	
   

  
	
  “Guarantors”

  	
   

  	
  means, together, the
  Parent and the Ultimate Parent and “Guarantor” means either of them.

  
	
   

  	
   

  	
   

  
	
  “Governmental Authority”

  	
   

  	
  means the government of
  any country, or of any political subdivision thereof, whether state, regional
  or local, and any agency, authority, branch, department, regulatory body,
  court, central bank or other entity exercising executive, legislative,
  judicial, taxing, regulatory or administrative powers or functions of or
  pertaining to government or any subdivision thereof (including any supra-national
  bodies), and all officials, agents and representatives of each of the
  foregoing.

  



 


7

















 


	
  “Interbank Rate”

  	
   

  	
  means:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (a)               for the first Interest
  Period of each Disbursement, the offered rate per annum for deposits in the
  Loan Currency which appears on the Reference Page as of 11:00 a.m.,
  Brussels time, on the relevant Interest Determination Date for the period
  which equals the duration of such Interest Period (or if no such rate appears
  on the Reference Page for a period equal to the duration of such
  Interest Period but rates (“Reference Rates”) do appear on the Reference
  Page both for a period that is shorter than and for a period that is
  longer than the duration of such Interest Period, the Interbank Rate shall be
  the rate (rounded upward, if necessary, to four decimal places) that would be
  applicable for a period equal to the duration of such Interest Period as determined
  through the use of straight-line interpolation by reference to the Reference
  Rate that appears on the Reference Page for the period that is the next
  shorter in length than the duration of such Interest Period and the Reference
  Rate that appears on the Reference Page for the period that is the next
  longer in length than the duration of such Interest Period); and

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)              for each subsequent
  Interest Period, the offered rate per annum for deposits in the Loan Currency
  which appears on the Reference Page as of 11:00 a.m., Brussels time,
  on the relevant Interest Determination Date for the period which is closest
  to the duration of such Interest Period (or, if two periods are equally close
  to the duration of such Interest Period, the average of the two relevant rates);

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  provided that if, for any
  reason, the Interbank Rate cannot be determined at such time by reference to
  the Reference Page, the Interbank Rate for such Interest Period shall be the
  rate per annum which the Bank determines to be the arithmetic mean (rounded
  upward, if necessary, to four decimal places) of the offered rates per annum
  for deposits in the Loan Currency in an amount comparable to the portion of
  the Loan scheduled to be outstanding during such Interest Period for a period
  equal to such Interest Period which are quoted to leading banks in the
  Euro-zone interbank market as advised to the Bank by at least three major
  banks active in the Euro-zone interbank market selected by the Bank.

  
	
   

  	
   

  	
   

  
	
  “Interest Determination
  Date”

  	
   

  	
  means, for any Interest
  Period, the date two Business Days prior to the first day of such Interest
  Period.

  



 


8

















 


	
  “Interest Payment Date”

  	
   

  	
  means the date falling
  three months after the first Disbursement for Tranche 1 and each subsequent
  date falling at three monthly intervals thereafter; provided, however, that,
  if any Interest Payment Date would otherwise fall on a day which is not a
  Business Day, such Interest Payment Date shall be changed to the next succeeding
  Business Day in the same calendar month or, if there is no succeeding
  Business Day in the same calendar month, the immediately preceding Business
  Day.

  
	
   

  	
   

  	
   

  
	
  “Interest Period”

  	
   

  	
  means, for any
  Disbursement, the period commencing on the date of such Disbursement and
  ending on the next Interest Payment Date and each period of three months thereafter
  commencing on an Interest Payment Date and ending on the next Interest
  Payment Date; provided that, if such Disbursement is made less than 15
  Business Days prior to the next Interest Payment Date, the first Interest Period
  for such Disbursement shall commence on the date of such Disbursement and end
  on the Interest Payment Date following the next Interest Payment Date.

  
	
   

  	
   

  	
   

  
	
  “Letter of Information”

  	
   

  	
  means the letter of information
  dated 2 June 2010 and any and all letters or documents referred to
  therein whether dated or received by the Bank prior to such date, from the Borrower
  to the Bank, containing the Borrower’s representations, warranties and
  undertakings regarding all material facts concerning the use of the Loan, the
  organisation, status, operations, affiliations, liabilities and assets of the
  Borrower and other matters incident to the transactions contemplated by this
  Agreement and any amendment or supplemental to such letter which is accepted
  by the Bank.

  
	
   

  	
   

  	
   

  
	
  “Lien”

  	
   

  	
  means any mortgage,
  pledge, charge, privilege, priority, hypothecation, encumbrance, assignment,
  lien, attachment, set-off or other security interest of any kind or any other
  agreement or arrangement having the effect of conferring security upon or
  with respect to, or any segregation of or other preferential arrangement with
  respect to, any present or future assets, revenues or rights, including, any
  designation of loss payees or beneficiaries or any similar arrangement under
  any insurance policy.

  
	
   

  	
   

  	
   

  
	
  “Loan”

  	
   

  	
  means, collectively,
  Tranche 1 and Tranche 2 or, as the context may require, the principal amount
  thereof from time to time outstanding.

  
	
   

  	
   

  	
   

  
	
  “Loan Currency”

  	
   

  	
  means the currency in
  which the Loan is denominated as set forth in Section 3.01.

  



 


9

















 


	
  “Long-term Debt”

  	
   

  	
  means, as of any date with
  respect to any person, any Financial Debt of such person all or part of
  which, or the final payment of which, is due more than one year after such
  date.

  
	
   

  	
   

  	
   

  
	
  “Margin”

  	
   

  	
  means six per cent per
  annum, provided that:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (a)

  	
  (as calculated by the Bank
  pursuant to Section 3.05(c)) in respect of each Margin Period:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (i)

  	
  if no Default shall have
  occurred and be continuing and if during the Measurement Period preceding
  such Margin Period the ratio of Net Debt to Operating EBITDA of the Ultimate
  Parent and its Subsidiaries for such Measurement Period shall be less than
  0.5:1.0, “Margin” for such Margin Period means 4% per annum;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (ii)

  	
  if no Default shall have
  occurred and be continuing and if during the Measurement Period preceding
  such Margin Period the ratio of Net Debt to Operating EBITDA of the Ultimate
  Parent and its Subsidiaries for such Measurement Period shall be equal to or
  more than 0.5:1.0 but less than 1.49:1.0, “Margin” for such Margin Period
  means 4.5% per annum;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (iii)

  	
  if no Default shall have
  occurred and be continuing and if during the Measurement Period preceding
  such Margin Period the ratio of Net Debt to Operating EBITDA of the Ultimate
  Parent and its Subsidiaries for such Measurement Period shall be equal to or
  more than 1.50:1.0 but less than 2.49:1.0, “Margin” for such Margin Period
  means 5.50% per annum;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (iv)

  	
  if no Default shall have
  occurred and be continuing and if during the Measurement Period preceding
  such Margin Period the ratio of Net Debt to Operating EBITDA of the Ultimate
  Parent and its Subsidiaries for such Measurement Period shall be equal to or
  more than 2.50:1.0 but less than 3.00:1.0, “Margin” for such Margin Period
  means 6.50% per annum; or

  



 


10

















 


	
   

  	
   

  	
   

  	
  (v)

  	
  if no Default shall have
  occurred and be continuing and if during the Measurement Period preceding
  such Margin Period the ratio of Net Debt to Operating EBITDA of the Ultimate
  Parent and its Subsidiaries for such Measurement Period shall be more than
  3.00:1.0, “Margin” for such Margin Period means 7% per annum;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)

  	
  if a Default shall have
  occurred and whilst it is continuing, “Margin” means the higher of
  (i) 6% per annum, (ii) the rate determined pursuant to paragraphs
  (a)(iv) and (a)(v) above and (iii) the rate per annum
  applicable as “Margin” under this Agreement immediately before such Default
  occurring; and

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (c)

  	
  while the Borrower is in
  breach of any of Sections 9.01(c) to 9.01(e) inclusive, an
  additional 0.5% per annum shall be added to the rate per annum applicable as
  Margin at the time.

  
	
   

  	
   

  	
   

  
	
  “Margin Reset Date”

  	
   

  	
  means, for each calendar
  year after 2010, the first day of the Interest Period falling immediately
  after the date of such calendar year on which the Borrower advises the Bank
  of the ratio of Net Debt to Operating EBITDA of the Ultimate Parent and its
  Subsidiaries for the Financial Year of the Ultimate Parent and its
  Subsidiaries ending on the last day of the calendar year before.

  
	
   

  	
   

  	
   

  
	
  “Margin Period”

  	
   

  	
  means each period
  commencing on a Margin Reset Date and ending on the day prior to the
  subsequent Margin Reset Date and “Margin Periods” means any or all of them.

  
	
   

  	
   

  	
   

  
	
  “Market Disruption Event”

  	
   

  	
  means:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (a)               on the Interest
  Determination Date for the relevant Interest Period or the Default Interest
  Determination Date for the relevant Default Interest Period, the Reference Page is
  not available and fewer than three major banks active in the Euro-zone
  interbank market supply a rate to the Bank to determine the Interbank Rate
  for the Loan Currency for the relevant Interest Period or the default interest
  rate for the Loan Currency for the relevant Default Interest Period, as the
  case may be; or

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)              before close of business
  in London on the Interest Determination Date for the relevant Interest Period
  or the

  



 


11

















 


	
   

  	
   

  	
  Default Interest Determination
  Date for the relevant Default Interest Period, the Bank determines that the
  cost to the Bank of obtaining matching deposits in the Euro-zone interbank
  market would be in excess of the Interbank Rate.

  
	
   

  	
   

  	
   

  
	
  “Material Adverse Effect”

  	
   

  	
  means a material adverse
  effect on:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (a)               the ability of the
  Borrower, each Guarantor or each Shareholder to perform or comply with any of
  its obligations under any Financing Agreement;

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)              the rights and remedies of
  the Bank in respect of any Security;

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (c)               the legality, validity,
  enforceability and binding nature of any Financing Agreement or the legal
  rights, remedies and priorities of the Bank under any of the Financing
  Agreements; or

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (d)              the Borrower’s or a
  Guarantor’s business, operations, financial condition or prospects.

  
	
   

  	
   

  	
   

  
	
  “Measurement Period”

  	
   

  	
  means:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (a)               in relation to the first
  Margin Period, the Financial Year ending 31 December 2010; and

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)              in relation to each
  subsequent Margin Period, the Financial Year ending on the last day of the
  calendar year immediately preceding such Margin Period.

  
	
   

  	
   

  	
   

  
	
  “Member States”

  	
   

  	
  means the Republic of
  Albania, the Republic of Armenia, the Republic of Azerbaijan, the Republic of
  Bulgaria, Georgia, Hellenic Republic, the Republic of Moldova, Romania, the
  Republic of Turkey, the Russian Federation and the Ukraine.

  
	
   

  	
   

  	
   

  
	
  “Nasdaq”

  	
   

  	
  means the National
  Association of Securities Dealers Inc. Automated Quotations System

  
	
   

  	
   

  	
   

  
	
  “Net Debt”

  	
   

  	
  means the consolidated
  Financial Debt of the Ultimate Parent and its Subsidiaries minus the
  consolidated Cash and Cash Equivalents of the Ultimate Parent and its Subsidiaries.

  
	
   

  	
   

  	
   

  
	
  “Net Interest Expense”

  	
   

  	
  means the difference
  between interest income and interest expense as such terms are interpreted
  under US GAAP

  



 


12

















 


	
   

  	
   

  	
  calculated based on the
  consolidated Financial Statements of the Ultimate Parent and its
  Subsidiaries.

  
	
   

  	
   

  	
   

  
	
  “Operating EBITDA”

  	
   

  	
  means earnings before
  interest, taxes, gain or loss in equity investments, realised or unrealised
  foreign exchange gains or losses, depreciation and amortisation, excluding
  extraordinary and exceptional or non-recurring items, share-based
  compensation expense, any profit or loss arising on disposal of fixed assets
  as disclosed in the consolidated Financial Statements of the Ultimate Parent and
  its Subsidiaries.

  
	
   

  	
   

  	
   

  
	
  “Parent”

  	
   

  	
  means Velti Limited of 2
  Paris Garden, Bastille Court, SE1 8ND, London, UK and includes its successors
  in title.

  
	
   

  	
   

  	
   

  
	
  “Parent Guarantee”

  	
   

  	
  means the irrevocable
  guarantee by the Parent of all amounts owing to the Bank under the Financing Agreements,
  which guarantee shall be in form and substance satisfactory to the Bank.

  
	
   

  	
   

  	
   

  
	
  “Permitted Liens”

  	
   

  	
  means the Liens referred
  to in Sections 6.02(1) to 6.02(4) inclusive.

  
	
   

  	
   

  	
   

  
	
  “Pound”, “GBP” or “£”

  	
   

  	
  means the lawful currency
  for the time being of the United Kingdom.

  
	
   

  	
   

  	
   

  
	
  “Prohibited Practice”

  	
   

  	
  means any Corrupt Practice
  or Fraudulent Practice, as such terms are defined and outlined in the
  Anti-Corruption Guidelines.

  
	
   

  	
   

  	
   

  
	
  “Required DSRA Balance”

  	
   

  	
  means, at any relevant
  day, an amount at least equal to the maximum amount of principal, interest,
  fees and any other amounts scheduled to become due and payable under this Agreement
  during the six month period commencing on such day.

  
	
   

  	
   

  	
   

  
	
  “Reference Page”

  	
   

  	
  means the display of
  Euro-zone interbank offered rates of major banks for deposits in the Loan
  Currency designated as page EURIBOR01 on Reuters services (or such other
  page as may replace page EURIBOR01 on Reuters services for the
  purpose of displaying Euro-zone interbank offered rates for deposits in the
  Loan Currency).

  
	
   

  	
   

  	
   

  
	
  “Security”

  	
   

  	
  means the security
  created, expressed to be created or agreed to be created pursuant to any of
  the Security Documents to secure all amounts owing to the Bank under the
  Financing Agreements.

  
	
   

  	
   

  	
   

  
	
  “Security Documents”

  	
   

  	
  means, together, the Bank
  Account Pledges and the Shares Pledge and “Security Document” means any of
  them.

  



 


13

















 


	
  “Shares Pledge”

  	
   

  	
  means the instrument
  pursuant to which the Parent pledges in favour of the Bank all of the issued
  and outstanding shares of the Borrower, which instrument shall be in form and
  substance satisfactory to the Bank, together with the original share
  certificates representing all such shares and instruments of transfer in
  respect of all such shares executed in blank.

  
	
   

  	
   

  	
   

  
	
  “Share Retention Agreement”

  	
   

  	
  means the agreement
  between the Shareholders, the Ultimate Parent and the Bank pursuant to which
  the Shareholders agree not to effect any change in their equity interest in,
  or transfer any of 3,750,000 ordinary shares they hold in aggregate in the
  capital of the Ultimate Parent without the prior written consent of the Bank,
  under the terms and conditions set out therein, which agreement shall be in
  form and substance satisfactory to the Bank.

  
	
   

  	
   

  	
   

  
	
  “Shareholders”

  	
   

  	
  means, together,
  Alexandros Moukas, Christos Kaskavelis and Menelaos Scouloudis and
  “Shareholder” means each of them

  
	
   

  	
   

  	
   

  
	
  “Shareholders Equity”

  	
   

  	
  means the total equity of
  the Ultimate Parent and its Subsidiaries as it appears on the consolidated
  balance sheet of the Ultimate Parent and its Subsidiaries prepared in
  accordance with US GAAP.

  
	
   

  	
   

  	
   

  
	
  “Subordinated Debt”

  	
   

  	
  means Debt of the Borrower
  which is subordinated on terms satisfactory to the Bank, to the payment of
  all amounts payable to the Bank under the Financing Agreements.

  
	
   

  	
   

  	
   

  
	
  “Subsidiary”

  	
   

  	
  means, with respect to any
  entity, any other entity over 50% of whose capital is owned, directly or
  indirectly, by such entity or which is otherwise effectively controlled by such
  entity.

  
	
   

  	
   

  	
   

  
	
  “TARGET Day”

  	
   

  	
  means any day on which the
  Trans-European Automated Real-time Gross Settlement Payment System (TARGET) is
  open for the settlement of payments in Euro.

  
	
   

  	
   

  	
   

  
	
  “Tax” or “Taxes”

  	
   

  	
  means any tax, royalty,
  stamp or other duty, assessment, levy, charge, value added tax, or impost of
  any nature whatsoever (including any related penalty or interest) imposed
  under any law.

  
	
   

  	
   

  	
   

  
	
  “Total Liabilities”

  	
   

  	
  shall have the meaning
  given to that term under US GAAP calculated based on the consolidated
  Financial Statements of the Ultimate Parent and its Subsidiaries.

  



 


14

















 


	
  “Tranche 1”

  	
   

  	
  means the maximum
  principal amount of the loan provided for in Section 3.01(1) or, as
  the context may require, the principal amount thereof from time to time outstanding.

  
	
   

  	
   

  	
   

  
	
  “Tranche 2”

  	
   

  	
  means the maximum
  principal amount of the loan provided for in Section 3.01(2) or, as
  the context may require, the principal amount thereof from time to time outstanding.

  
	
   

  	
   

  	
   

  
	
  “Ultimate Parent”

  	
   

  	
  means Velti PLC of 22
  Grenville Street, St Helier, Jersey JE4 8PX, Channel Islands and having a tax
  residency address at 28-32 Upper Pembroke Street, Dublin 2, Republic of
  Ireland and includes its successors it title.

  
	
   

  	
   

  	
   

  
	
  “Ultimate Parent
  Guarantee”

  	
   

  	
  means the irrevocable
  guarantee by the Ultimate Parent of all amounts owing to the Bank under the
  Financing Agreements, which guarantee shall be in form and substance
  satisfactory to the Bank.

  
	
   

  	
   

  	
   

  
	
  “US GAAP”

  	
   

  	
  means accounting
  principles generally accepted in the United States of America and
  consistently applied, as set forth in the opinions and pronouncements of the Accounting
  Principles Board of the American Institute of Certified Public Accounting Standard
  Board or any successor organisation.

  



 


Section 1.02.                         Interpretation


 


(a)               In this Agreement, unless
the context otherwise requires, words denoting the singular include the plural
and vice versa.


 


(b)              In this Agreement, a
reference to a specified Article, Section, Schedule or Exhibit shall be
construed as a reference to that specified Article or Section of, or
Schedule or Exhibit to, this Agreement.


 


(c)               In this Agreement, a
reference (i) to an amendment or to an agreement being amended includes a
supplement, variation, assignment, novation, restatement or re-enactment, and (ii) to
an agreement shall be construed as a reference to such agreement as it may be
amended from time to time.


 


(d)              In this Agreement, the
headings and the Table of Contents are inserted for convenience of reference
only and shall not affect the interpretation of this Agreement. 


 


(e)               In this Agreement, “control”
(including, with correlative meanings, the terms “controlled by” and “under
common control with”), as used with respect to any person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such person, whether through the
ownership of voting shares, by contract or otherwise.


 


15

















 


(f)                 In this Agreement, a Default
is outstanding or continuing until it has been remedied or waived by the Bank
in writing.


 


(g)              In this Agreement, a
reference to a document being “in the Agreed Form” means that the form of such
document has been agreed by the parties hereto and that a copy thereof has been
initialled for the purpose of identification by the Bank and the Borrower.


 


(h)              In this Agreement, any
reference to “law” means any law (including, any common or customary law) and
any treaty, constitution, statute, legislation, decree, normative act, rule,
regulation, judgement, order, writ, injunction, determination, award or other
legislative or administrative measure or judicial or arbitral decision in any
jurisdiction which has the force of law or the compliance with which is in
accordance with general practice in such jurisdiction.


 


(i)                  In this Agreement, any
reference to a provision of law, is a reference to that provision as from time
to time amended or re-enacted.


 


(j)                  In this Agreement, a
reference to a “person” includes any person, natural or juridical entity, firm,
company, corporation, government, state or agency of a state or any
association, trust or partnership (whether or not having separate legal
personality) or two or more of the foregoing and references to a “person”
include its successors in title, permitted transferees and permitted assigns.


 


(k)               In this Agreement, “Euro-zone”
is a reference to the region comprised of the member states of the European
Union that adopt the single currency in accordance with the Treaty Establishing
the European Community, as amended by the Treaty on European Union and the
Treaty of Amsterdam.


 


(l)                  In this Agreement, “including”
and “include” shall be deemed to be followed by “without limitation” where not
so followed.


 


ARTICLE II - REPRESENTATIONS AND WARRANTIES


 


Section 2.01.                         Representations Regarding the Borrower


 


The Borrower represents and
warrants as follows:


 


(a)               Incorporation. The Borrower
is a société anonyme, duly organised, validly existing, and, if applicable, in
good standing under the laws of the Hellenic Republic and registered, to the
extent required in accordance with applicable law, with all relevant
registration bodies in any jurisdiction in which it carries on business or owns
assets and has full power to own the properties which it owns and to carry out
the businesses which it carries out.


 


(b)              Subsidiaries.
The Borrower has no Subsidiaries other than 99.99% of Velti Center of
Innovation S.A. (VCI S.A.) and 100% of Velti North America Inc. (VNA Inc.) and
each of its Subsidiaries is duly organised, validly existing, and, if
applicable,


 


16














 


in good standing under the
laws of the jurisdiction in which it is organised and registered, to the extent
required in accordance with applicable law, with all relevant registration
bodies in any jurisdiction in which it carries on business or owns assets and
has full power to own the properties which it owns and to carry out the
businesses which it carries out].


 


(c)     Share
Capital. The Borrower has an authorised capital of EUR
13,409,291.50 (Thirteen Million Four Hundred Nine Thousand Two Hundred Ninety One
Euros and Fifty Cents) consisting of 4,576,550 common registered shares with a
nominal value of EUR 2.93 (Two Euros and Ninety Three Cents) each. The
following is a list of all shareholders in the Borrower, with their respective
shareholdings, as of the date of this Agreement:


 


	
  Shareholder

  	
   

  	
  Number of Shares

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  VELTI
  LIMITED

  	
   

  	
  4,576,550

  	
   

  	
  100

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
   

  	
   

  	
  100

  	
   

  



 


All of the shares listed
above have been validly issued and are fully paid and all in-kind capital
contributions by such shareholders have been made for full commercial value.
There are no options, warrants or instruments convertible into shares or other
agreements relating to the existing shares of the Borrower or for the issuance
of additional shares of any class or description of the Borrower. No person has
any right (other than as a shareholder) to share in the profits of the
Borrower.


 


(d)     Directors
and Officers. As of the date of this Agreement, the board of
directors of the Borrower consists of Chris Kaskavelis (President of the board
of directors), Alex Moukas (Managing Director) and Menelaos Scouloudis
(Director). The Finance Director of the Borrower is Evangelos Angelides and the
Chief Accountant of the Borrower is Stylianos Georgaroudakis.


 


(e)     Financial
Statements. The consolidated balance sheet of the Borrower and
the Ultimate Parent and its Subsidiaries as at 31 December 2009 and the
related consolidated income statement, statement of changes in equity, cash
flow statement and notes, comprising a summary of significant accounting
policies and other explanatory notes, of the Borrower, the Ultimate Parent and
its Subsidiaries for the Financial Year ending on that date, certified by the
relevant Auditors, present fairly the consolidated financial position,
financial performance and cash flows of the Borrower, the Ultimate Parent and
its Subsidiaries as of the date of such balance sheet and for the period
covered by such income statement, statement of changes in equity and cash flow
statement and were prepared in accordance with Generally Accepted Accounting
Principles, as regards the Borrower’s financial statements, and US GAAP as
regards the financial statements of the Ultimate Parent and its Subsidiaries.
Neither the Borrower nor the Borrower Group had, as of the date of each such
balance sheet, any material contingent obligations, liabilities for Taxes or
unusual forward or long term commitments, other than agreements entered into
with customers in the ordinary course of the Borrower’s or the Borrower’s Group’s
business, not disclosed by, or reserved against in, such balance sheet or the
notes thereto. Since the date of such balance sheet,


 


17

















 


neither the Borrower nor the
Borrower Group has suffered any Material Adverse Effect, incurred any
substantial or unusual loss or liability or undertaken or agreed to undertake
any substantial or unusual obligation except under the Financing Agreements.


 


(f)      Title to
Assets. The Borrower owns and has good and marketable title
to all of the assets, the ownership of which is reflected in its most recent
balance sheet referred to in Section 2.02(e) or which are referred to
in the Security Documents. Such assets are free from any restrictions or
covenants which might have a Material Adverse Effect. The Borrower’s assets are
not subject to any Lien, and the Borrower is not subject to any contract,
arrangement or law, whether conditional or unconditional, pursuant to which any
Lien on its assets may be created, except for Permitted Liens.


 


(g)     Material
Contracts. Except as disclosed in the Letter of Information, as
of the date of this Agreement, the Borrower is not a party to, or committed to
enter into, any agreement for the incurring of new Financial Debt, other than
the Financing Agreements.


 


(h)     Compliance
with Law. The Borrower is not in violation of any law
applicable to it and presently in effect. To the best of the Borrower’s
knowledge, no law has been proposed or is expected which may have a Material
Adverse Effect. All tax returns and reports of the Borrower required by law to
be filed have been duly filed and all Taxes upon the Borrower, its properties
and its income, which are due and payable, have been paid, other than those
currently payable without penalty or interest. The Borrower is in compliance
with all applicable laws concerning money laundering. Neither the Borrower nor
the Guarantors nor any officers, directors, authorised employees, Affiliates,
agents or representatives of the Borrower or a Guarantor has committed or engaged
in, with respect to any transactions contemplated by this Agreement, any
Prohibited Practice.


 


(i)      No Default.
The Borrower is not in default under any agreement, obligation or duty
to which it is a party or by which it or any of its properties or assets is
bound and there exists no Default under this Agreement.


 


(j)      Environmental
and Social Compliance. The Borrower and its businesses, operations,
assets, equipment, property, leaseholds and other facilities are, in all
material respects, in compliance with the provisions of all Environmental and
Social Laws. The Borrower has been issued all required Authorisations relating
to, and has received no complaint, order, directive, claim, citation or notice
from any Governmental Authority or other person with respect to: (1) air
emissions, (2) discharges to surface water or ground water, (3) noise
emissions, (4) solid or liquid waste disposal, (5) the use,
generation, storage, transportation or disposal of toxic or hazardous substances,
(6) labour and employment conditions, (7) occupational health and
safety, (8) public health, safety and security, (9) indigenous
peoples, (10) cultural heritage and (11) resettlement or economic
displacement of persons.


 


(k)     Litigation.
Neither the Borrower nor any member of the Borrower Group is engaged
in, or, to the best of its knowledge, threatened by, any litigation,
arbitration or administrative proceeding, the outcome of which might have a
Material Adverse Effect.


 


(l)      Letter of
Information. Without prejudice to any of the foregoing
representations


 


18

















 


and warranties herein and
subject to Section 2.03(a), the Borrower represents and warrants that the
information contained in the Letter of Information remains true, accurate and
complete in all respects.


 


Section 2.02.        Representations
Regarding the Financing Agreements


 


The Borrower represents and
warrants as follows:


 


(a)     Corporate
Power. The Borrower and each Guarantor has the corporate power to enter into,
and perform its obligations under, the Financing Agreements to which it is a
party.


 


(b)     Due
Authorisation; Enforceability; No Conflict. The Financing Agreements to
which the Borrower is a party have been duly authorised by the Borrower. This
Agreement has been duly executed by the Borrower and this Agreement
constitutes, and the other Financing Agreements to which the Borrower is a
party, when executed and delivered, will constitute, valid and legally binding
obligations of the Borrower, enforceable in accordance with their respective
terms. The making of the Financing Agreements and the compliance with the terms
thereof:


 


(1)         will not result in violation
of the Borrower’s Charter or any provision contained in any law applicable to
the Borrower;


 


(2)         will not conflict with or result
in the breach of any provision of, or require any consent under, or result in
the imposition of any Lien under, any agreement or instrument to which the
Borrower is a party or by which the Borrower or any of its assets is bound; and



 


(3)         will not constitute a
default or an event which, with the giving of notice, the passage of time or
the making of any determination (or any combination thereof), would constitute
a default under any such agreement or instrument.


 


(c)     Governmental
Authorisations. No Authorisations from any Governmental Authority
are required for the due execution, delivery or performance by the Borrower of
any Financing Agreement, or the validity or enforceability thereof, or the
carrying on of the business of the Borrower as it is carried on or is
contemplated to be carried on. 


 


(d)     Pari Passu  Ranking. The Borrower’s payment obligations
under the Financing Agreements rank at least pari passu with claims of all of
its other creditors, except for claims mandatorily preferred by laws applicable
to companies generally.


 


(e)     Security. Subject to
registration of the Shares Pledge in the shares’ and shareholders’ books of the
Borrower and at the Companies House in Cardiff, Wales, each Security Document
will, when executed and delivered, constitute a valid and perfected security
interest in the collateral covered by such Security Document, securing payment
of all principal, interest and other amounts payable to the Bank under the
Financing Agreements and ranking senior to all other Liens on such collateral.
The Borrower is not a party to any other security agreement or instrument
creating or purporting to create a Lien on such collateral. The Security is not
subject to avoidance on liquidation of the Borrower or in bankruptcy,
composition or other insolvency


 


19

















 


proceedings relating to the
Borrower.


 


(f)      Taxes. There is no Tax
of any Governmental Authority of the Hellenic Republic, the UK, the Republic of
Ireland or the Channel Islands to be imposed on or by virtue of the execution,
delivery or performance of any Financing Agreement or necessary to ensure the
legality, validity, enforceability or admissibility in evidence thereof in of
the Hellenic Republic, the UK, the Republic of Ireland or the Channel Islands.


 


Section 2.03.        Acknowledgement
and Repetition


 


(a)     The Borrower acknowledges
that it has made the representations and warranties contained in Sections 2.01
and 2.02 with the intention of inducing the Bank to enter into this Agreement
and that the Bank has entered into this Agreement on the basis of, and in full
reliance on, each of such representations and warranties. The Borrower warrants
that it has no knowledge of any additional facts or matters the omission of
which makes any of such representations and warranties misleading or which
would or might reasonably be expected to affect the judgement of a prospective
lender regarding lending to the Borrower. The Borrower shall notify the Bank of
any changes to the Letter of Information on the date of application for any
Disbursement to the extent necessary for the purpose of complying with
Section 2.01(l).


 


(b)     Any representation or
warranty given hereunder which specifies that such representation and warranty
is provided hereunder “as of the date of this Agreement” shall only be given on
the date of this Agreement and shall not be deemed to be repeated hereafter in
connection with any Disbursement made pursuant to this Agreement. In respect of
all other representations and warranties provided in this Article II, such
representations and warranties shall be deemed to be repeated on submission of
each Disbursement request and on each Disbursement date by reference to the
facts and circumstances then existing.


 


ARTICLE III - LOAN


 


Section 3.01.        Amount and
Currency


 


On and subject to the terms
and conditions of this Agreement, the Bank agrees to lend to the Borrower an
amount not to exceed EUR 15,000,000 (Fifteen Million Euros) consisting of:


 


(1)    Tranche 1 in an amount not
to exceed EUR 10,000,000 (Ten Million Euros); and 


 


(2)    Tranche 2 in an amount not
to exceed EUR 5,000,000 (Five Million Euros).


 


Section 3.02.        Disbursements


 


(a)     Subject to Section 3.03
and Article IV, both Tranche 1 and Tranche 2 shall be disbursed by the
Bank from time to time on any Business Day during the relevant Commitment
Period in one or more Disbursements upon request of the Borrower. The Borrower
may request a Disbursement by submitting to the Bank an original application


 


20

















 


for such Disbursement, in
the form of Exhibit A and in substance satisfactory to the Bank, at least
10 Business Days prior to the proposed date of such Disbursement. Such
application shall, unless the Bank otherwise agrees, be irrevocable and binding
on the Borrower.


 


(b)     Disbursements (other than a
Disbursement of the entire undisbursed amount of the Loan) shall be made in
amounts of not less than EUR 2,000,000 (Two Million Euros) and in integral
multiples of EUR 1,000,000 (One Million Euros).


 


Section 3.03.        Suspension
and Cancellation


 


(a)     From time to time, the Bank
may, by notice to the Borrower, suspend or cancel the right of the Borrower to
all or any portion of any further Disbursements:


 


(1)          if the first Disbursement of
Tranche 1 has not been made by the last day of the relevant Commitment Period
or such other date as may be agreed by the parties hereto;


 


(2)          if an Event of Default has
occurred and is continuing; or


 


(3)          if the Board of Governors of
the Bank has decided that access by the Country of Operation to the Bank
resources should be suspended or otherwise modified.


 


Upon the issuance of such
notice by the Bank, the right of the Borrower to further Disbursements shall be
suspended or cancelled as indicated in the notice. The exercise by the Bank of
the right of suspension shall not preclude the Bank from exercising its right
of cancellation as provided in this Section 3.03, either for the same or
another reason, and shall not limit any other rights of the Bank under the
Financing Agreements. 


 


(b)     The Borrower shall have the
right at any time, on not less than 30 days’ prior notice to the Bank, to
cancel in whole or in part any undisbursed portion of the Loan; provided that:


 


(1)          the Borrower shall pay to
the Bank at the same time all accrued commitment charges on the portion of the
Loan to be cancelled and all other amounts due and payable hereunder; 


 


(2)          in the case of a partial
cancellation of the undisbursed portion of the Loan, such cancellation shall be
in an amount of not less than EUR 1,000,000 (One Million Euros) and in an
integral multiple of EUR 500,000 (Five Hundred Thousand Euros); and 


 


(3)          the Borrower shall pay to
the Bank on the date of cancellation a cancellation fee of 2% of the principal
amount of the Loan to be cancelled.


 


Any such notice of
cancellation by the Borrower shall be irrevocable and binding on the Borrower.
On termination of the relevant Commitment Period, the Borrower shall be deemed
to have cancelled any then undisbursed portion of the Loan and shall not be
obliged on such date to pay the cancellation fee specified above. Amounts of
the Loan


 


21

















 


which are cancelled by the
Borrower may not be reinstated.


 


Section 3.04.        Charges and
Commissions


 


(a)     The Borrower shall pay to
the Bank during the relevant Commitment Period a commitment charge at the rate
of 1% per annum on so much of Tranche 1 as has not, from time to time, been
disbursed to the Borrower or cancelled and 1% per annum on so much of Tranche 2
as has not, from time to time, been disbursed to the Borrower or cancelled. The
commitment charge shall accrue from day to day, in the case of Tranche 1, from
the earlier of (i) the date which is 30 days after the date of this
Agreement and (ii) the date of the first Disbursement under Tranche 1 and,
in the case of an amount of Tranche 2, from the earlier of (i) the date
which is 15 days after the date that Tranche 2 has been declared available by
the Bank to the Borrower and (ii) the date of the fist Disbursement under
Tranche 2. The commitment charge payable shall be calculated on the basis of
the actual number of days elapsed in the relevant period and a 360-day year and
shall be due and payable in arrears on each Interest Payment Date (even though
no interest may be payable on such date) Provided however that if no
disbursement of the Loan has been made within the Commitment Period in respect
of Tranche 1, then the commitment charge shall be due and payable in arrears on
the last day of the Commitment Period in respect of Tranche 1.


 


(b)     The Borrower shall pay to
the Bank a front-end commission of EUR 100,000 (One Hundred Thousand Euros) in
respect of Tranche 1 and EUR 37,500 (Thirty Seven Thousand and Five Hundred
Euros) in respect of Tranche 2. Such front-end commission shall be due and
payable, in the case of Tranche 1, not later than the earlier of (i) the
date of the first Disbursement under Tranche 1 and (ii) the date which is
30 days after the date of this Agreement and in the case of Tranche 2, not later
than the earlier of (i) the date of the first Disbursement under Tranche 2
and (ii) the date which is 15 days after the date that Tranche 2 has been
declared available by the Bank to the Borrower.


 


(c)     The charges and commissions
referred to in this Section 3.04 are non-refundable and are exclusive of
any Tax which might be chargeable in connection with such charges or
commissions. If any such Tax becomes chargeable, the Borrower shall pay such
Tax to the Bank at the same time that the relevant charge or commission becomes
due and payable.


 


Section 3.05.        Interest


 


(a)     Except as provided in
Section 3.06, the Borrower shall pay interest on the principal amount of
each Disbursement from time to time outstanding during each Interest Period for
such Disbursement at a rate equal to the sum of the applicable Margin at the
time and, subject to Section 3.07, the Interbank Rate for such Interest
Period.


 


(b)     Interest shall:


 


(1)          accrue from and including
the first day of an Interest Period to but excluding the last day of such Interest
Period;


 


22

















 


(2)          be calculated on the basis
of the actual number of days elapsed and a 360-day year; and


 


(3)          be due and payable on the
Interest Payment Date which is the last day of the relevant Interest Period.


 


(c)     Except as otherwise provided
in Section 3.07, on each Interest Determination Date, the Bank shall
determine the interest rate applicable during the relevant Interest Period and
promptly give notice thereof to the Borrower. Each determination by the Bank of
the interest rate applicable to any portion of the Loan shall be final,
conclusive and binding upon the Borrower unless shown by the Borrower to the
satisfaction of the Bank that any such determination has involved manifest
error.


 


Section 3.06.        Default
Interest


 


(a)     If the Borrower fails to pay
when due any amount payable by it under this Agreement, the overdue amount
shall bear interest at a rate equal to the sum of:


 


(1)          2.0% per annum;


 


(2)          the applicable Margin at the
time; and


 


(3)          the interest rate per annum
offered in the Euro-zone interbank market on the Default Interest Determination
Date for a deposit in the Loan Currency of an amount comparable to the overdue
amount for a period equal to the relevant Default Interest Period or, if a
Market Disruption Event has occurred, the rate which expresses as a percentage
rate per annum the cost to the Bank of funding its respective portion of the
Loan from whatever source the Bank may reasonably select (or at the option of
the Bank, the relevant Interbank Rate, if available).


 


(b)     Default interest shall:


 


(1)          accrue from day to day from
the due date to the date of actual payment, after as well as before judgement,
if any;


 


(2)          be calculated on the basis
of the actual number of days elapsed and a 360-day year;


 


(3)          be compounded at the end of
each Default Interest Period; and


 


(4)          be due and payable forthwith
upon demand.


 


(c)     Each determination by the
Bank of the interest rates applicable to overdue amounts and of Default
Interest Periods shall be final, conclusive and binding upon the Borrower
unless shown by the Borrower to the satisfaction of the Bank that any such
determination has involved manifest error.


 


23

















 


Section 3.07.        Market
Disruption


 


(a)     If a Market Disruption Event
occurs, the Bank shall promptly notify the Borrower. If the Bank notifies the
Borrower of the occurrence of a Market Disruption Event, interest shall accrue
on the Loan at a rate equal to the sum of:


 


(1)          the applicable Margin at the
time; and


 


(2)          the rate which expresses as
a percentage rate per annum the cost to the Bank of funding its respective
portion of the Loan from whatever source the Bank may reasonably select (or, at
the option of the Bank, the relevant Interbank Rate, if available), as notified
by the Bank to the Borrower as soon as practicable and in any event before
interest is due to be paid in respect of the relevant Interest Period,


 


until the Bank has given
notice to the Borrower that the Market Disruption Event has ceased to exist.


 


(b)     If a Market Disruption Event
has occurred, the Bank shall have the right, in its discretion, to change the
duration of any relevant Interest Period by sending to the Borrower a written
notice thereof. Any such change to an Interest Period shall take effect on the
date specified by the Bank in such notice.


 


(c)     Notwithstanding
Section 3.07(a), if a Market Disruption Event occurs and the Bank or the
Borrower so requires, within five Business Days of the notification by the Bank
pursuant to Section 3.07(a) above, the Bank and the Borrower shall
enter into negotiations (for a period of not more than 30 days) with a view to
agreeing a substitute basis for determining the rate of interest applicable to
the Loan. Any alternative basis so agreed shall take effect in accordance with
its terms and replace the interest rate then in effect pursuant to
Section 3.07(a) above. If agreement cannot be reached, the Borrower
may prepay the Loan on the next Interest Payment Date in accordance with
Section 3.09, but without any prepayment fee.


 


Section 3.08.        Repayment


 


(a)     The Borrower shall repay
Tranche 1 on the following dates and in the following amounts:


 


	
  Date Payment Due

  	
   

  	
  Principal Amount Due

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  24
  months after the first Disbursement of Tranche 1

  	
   

  	
  EUR

  	
  1,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  27
  months after the first Disbursement of Tranche 1

  	
   

  	
  EUR

  	
  500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30
  months after the first Disbursement of Tranche 1

  	
   

  	
  EUR

  	
  200,000

  	
   

  



 


24

















 


	
  33 months after the first
  Disbursement of Tranche 1

  	
   

  	
  EUR

  	
  300,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  36 months after the first
  Disbursement of Tranche 1

  	
   

  	
  EUR

  	
  1,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  39 months after the first
  Disbursement of Tranche 1

  	
   

  	
  EUR

  	
  500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  42 months after the first
  Disbursement of Tranche 1

  	
   

  	
  EUR

  	
  200,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  45 months after the first
  Disbursement of Tranche 1

  	
   

  	
  EUR

  	
  300,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  48 months after the first
  Disbursement of Tranche 1

  	
   

  	
  EUR

  	
  1,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  51 months after the first
  Disbursement of Tranche 1

  	
   

  	
  EUR

  	
  500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  54 months after the first Disbursement
  of Tranche 1

  	
   

  	
  EUR

  	
  500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  57 months after the first
  Disbursement of Tranche 1

  	
   

  	
  EUR

  	
  500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  60 months after the first
  Disbursement of Tranche 1

  	
   

  	
  EUR

  	
  3,500,000

  	
   

  



 


If Tranche 1 is not drawn
down in full by the end of the relevant Commitment Period, the amount of each
repayment instalment of Tranche 1 shall be reduced proportionately.


 


(b)     The Borrower shall repay
Tranche 2 on the following dates and in the following amounts:


 


	
  Date Payment Due

  	
   

  	
  Principal Amount Due

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  First
  Principal Repayment Date for Tranche 2

  	
   

  	
  EUR

  	
  500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3
  months after the First Principal Repayment Date for Tranche 2

  	
   

  	
  EUR

  	
  250,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6
  months after the First Principal Repayment Date for Tranche 2

  	
   

  	
  EUR

  	
  100,000

  	
   

  



 


25

















 


	
  9
  months after the First Principal Repayment Date for Tranche 2

  	
   

  	
  EUR

  	
  150,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  12
  months after the First Principal Repayment Date for Tranche 2

  	
   

  	
  EUR

  	
  500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  15
  months after the First Principal Repayment Date for Tranche 2

  	
   

  	
  EUR

  	
  250,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  18
  months after the First Principal Repayment Date for Tranche 2

  	
   

  	
  EUR

  	
  100,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  21
  months after the First Principal Repayment Date for Tranche 2

  	
   

  	
  EUR

  	
  150,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  24
  months after the First Principal Repayment Date for Tranche 2

  	
   

  	
  EUR

  	
  500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  27
  months after the First Principal Repayment Date for Tranche 2

  	
   

  	
  EUR

  	
  250,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30
  months after the First Principal Repayment Date for Tranche 2

  	
   

  	
  EUR

  	
  250,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  33
  months after the First Principal Repayment Date for Tranche 2

  	
   

  	
  EUR

  	
  250,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  36
  months after the first Disbursement of Tranche 2

  	
   

  	
  EUR

  	
  1,750,000

  	
   

  



 


If Tranche 2 is not drawn
down in full by the end of the relevant Commitment Period, the amount of each
repayment instalment of Tranche 2 shall be reduced proportionately. 


 


(c)     The dates for payment of
principal of the Loan are intended to coincide with Interest Payment Dates. If
any Interest Payment Date is affected by the proviso to the definition of “Interest
Payment Date”, then the corresponding date for payment of principal shall be
changed to coincide with such Interest Payment Date. Amounts of the Loan repaid
may not be reborrowed.


 


Section 3.09.        Prepayment


 


The Borrower shall have the
right at any time, on not less than 30 days’ prior notice to the Bank, to prepay
on any Interest Payment Date all or any part of the principal amount of the
Loan then outstanding; provided that:


 


(1)          the Borrower shall pay to
the Bank at the same time all accrued interest and other amounts payable on the
principal amount of the Loan to be prepaid and all other amounts due and
payable hereunder;


 


(2)          in the case of a partial
prepayment, such prepayment shall be in an amount


 


26














 


of not less than EUR
1,000,000 (One Million Euros), shall be applied pro rata between Tranche 1 and
Tranche 2 in proportion to the respective principal amounts thereof then
outstanding and shall be applied to prepay the outstanding repayment
instalments of the Loan in direct order of maturity; and 


 


(3)                             the Borrower
shall pay to the Bank on the date of prepayment a prepayment fee equal to:


 


a)              in respect of a
prepayment of Tranche 1 or any part thereof:


 


i)                 if such
prepayment is made during the first 24 months from the first Disbursement of
Tranche 1, 2% of the principal amount of Tranche 1 to be prepaid;


 


ii)              if such
prepayment is made after the first 24 months from the first Disbursement of
Tranche 1 but on or before the last day of the period ending 36 months from the
first Disbursement of Tranche 1, 1.5% of the principal amount of Tranche 1 to
be prepaid;


 


iii)           if such
prepayment is made after the first 36 months from the first Disbursement of
Tranche 1 but on or before the last day of the period ending 48 months from the
first Disbursement of Tranche 1, 1% of the principal amount of Tranche 1 to be
prepaid;


 


iv)          if such
prepayment is made after the first 48 months but on or before the last day of
the period ending 60 months from the first Disbursement of Tranche 1, 0.5% of
the principal amount of Tranche 1 to be prepaid;


 


b)             in respect of a
prepayment of Tranche 2 or any part thereof:


 


i)                 if such
prepayment is made during the first 24 months from the first Disbursement of
Tranche 2, 2% of the principal amount of Tranche 2 to be prepaid;


 


ii)              if such
prepayment is made after the first 24 months from the first Disbursement of
Tranche 2 but on or before the last day of the period ending 36 months from the
first Disbursement of Tranche 2, 1.5% of the principal amount of Tranche 2 to
be prepaid;


 


iii)           if such
prepayment is made after the first 36 months from the first Disbursement of
Tranche 2 but on or before the last day of the period ending 48 months from the
first Disbursement of Tranche 2, 1% of the principal amount of Tranche 2 to be
prepaid;


 


27

















 


iv)          if such
prepayment is made after the first 48 months but on or before the last day of
the period ending 60 months from the first Disbursement of Tranche 2, 0.5% of
the principal amount of Tranche 2 to be prepaid;


 


Any such notice of
prepayment by the Borrower shall be irrevocable and binding on the Borrower
and, upon delivery of such notice, the Borrower shall be obligated to prepay
the Loan in accordance with the terms thereof. Amounts of the Loan prepaid by
the Borrower may not be reborrowed.


 


Section 3.10.                         Payments


 


(a)               All payments of
principal, interest, charges, commissions, fees, expenses and any other amounts
due to the Bank under this Agreement shall be made, without set-off or
counterclaim, in the Loan Currency (or, in the case of costs and expenses of
the Bank, in the currency in which such costs and expenses were incurred), for
value on the due date, to such account and such place as the Bank may from time
to time designate by notice to the Borrower.


 


(b)              The sums to be
disbursed by the Bank to the Borrower hereunder shall be payable in the Loan
Currency for value, unless otherwise agreed by the Borrower and the Bank, on
the value date requested by the Borrower in its Disbursement application and to
such correspondent account as the Borrower may designate in its Disbursement
application (with instructions to transfer such sums, at the Borrower’s risk
and expense, to such account as the Borrower may designate in its Disbursement
application).


 


(c)               If the due date
for any payment under this Agreement would otherwise fall on a day which is not
a Business Day, then such payment shall instead be due on the next succeeding
Business Day in the same calendar month or, if there is no succeeding Business
Day in the same calendar month, the immediately preceding Business Day.


 


(d)              the Bank shall
have the right, to the fullest extent permitted by law, to set off any amount
owed by the Bank to the Borrower, whether or not matured, against any amount
then due and payable by the Borrower under any Financing Agreement, whether or
not the Bank has demanded payment by the Borrower of such amount and regardless
of the currency or place of payment of either such amount. the Bank shall have
the right, to the fullest extent permitted by law, to deduct from the proceeds
of any Disbursement any charges, commissions, fees, expenses and other amounts
then due and payable by the Borrower to the Bank under any Financing Agreement.


 


Section 3.11.
                      Insufficient Payments


 


(a)               If the Bank at any time
receives less than the full amount then due and payable to it under this
Agreement, the Bank shall have the right to allocate and apply the amount
received in any way or manner and for such purpose or purposes under this
Agreement as the Bank in its sole discretion determines, notwithstanding any
instruction that the Borrower may give to the contrary.


 


(b)              The Borrower shall indemnify
the Bank against any losses resulting from a


 


28

















 


payment being received, or a
claim being filed or an order or judgement being given, hereunder in a currency
or place other than the currency and place specified in Section 3.10(a) .
The Borrower shall pay such additional amount as is necessary to enable the
Bank to receive, after conversion to such currency at a market rate and
transfer to such place, the full amount due to the Bank hereunder in the
currency and at the place specified in Section 3.10(a) .


 


Section 3.12.                         Taxes


 


(a)               The Borrower shall pay or
cause to be paid, or reimburse the Bank on demand for, all present and future
Taxes, now or at any time hereafter levied or imposed by any Governmental
Authority of any jurisdiction out of which or through which payments hereunder
are made, on or in connection with the payment of any amounts due to the Bank
under this Agreement.


 


(b)              All payments of principal,
interest and other amounts due to the Bank under this Agreement shall be made
free and clear of, and without deduction or withholding for or on account of,
any Taxes; provided, however, that, in the event that the Borrower is prevented
by operation of law or otherwise from making such payments free and clear of
such deductions or withholdings, the principal, interest or other amount (as
the case may be) due under this Agreement shall be increased to such amount as
may be necessary to remit to the Bank the full amount it would have received
had such payment been made without such deductions or withholdings.


 


Section 3.13.                         Unwinding Costs


 


(a)               If, for any reason
(including, without limitation, an acceleration pursuant to Section 7.02),
any portion of the Loan becomes due and payable on a date other than the last
day of an Interest Period, the Borrower shall pay to the Bank on demand the
amount, if any, by which:


 


(1)                             the interest
which would have accrued on such portion of the Loan from the date on which
such portion of the Loan has become due and payable to the last day of the then
current Interest Period relevant to such portion of the Loan at a rate equal to
the Interbank Rate for such Interest Period;


 


exceeds:


 


(2)                             the interest
which the Bank would be able to obtain if it were to place an amount equal to
such portion of the Loan on deposit with a leading bank in the Euro-zone
interbank market for the period commencing on the date on which such portion of
the Loan has become due and payable and ending on the last day of the then
current Interest Period relevant to such portion of the Loan.


 


(b)              If any overdue amount is
paid on a date other than the last day of a Default Interest Period, the
Borrower shall pay to the Bank on demand the amount, if any, by which: 


 


(1)                             the interest
which would have accrued on such overdue amount from the


 


29

















 


date of receipt of such
overdue amount to the last day of the then current Default Interest Period at a
rate equal to the rate specified in Section 3.06(a)(3) for such
Default Interest Period;


 


exceeds:


 


(2)                             the interest
which the Bank would be able to obtain if it were to place an amount equal to
such overdue amount on deposit with a leading bank in the Euro-zone interbank
market for the period commencing on the Business Day immediately following the
date of receipt of such overdue amount and ending on the last day of the then
current Default Interest Period.


 


(c)               The Borrower shall forthwith
upon notice from the Bank reimburse the Bank for any costs, expenses and losses
incurred by the Bank, and not otherwise recovered by the Bank under Sections
3.13(a) and 3.13(b), as a result of the occurrence of an Event of Default,
prepayment of any portion of the Loan on a date other than the last day of an
Interest Period, failure by the Borrower to pay any amount when due hereunder,
failure by the Borrower to borrow in accordance with a Disbursement application
submitted pursuant to Section 3.02 or failure by the Borrower to make any
prepayment in accordance with a notice of prepayment delivered pursuant to Section 3.09.


 


(d)              A certificate of the Bank as
to any amount payable under this Section 3.13 shall be final, conclusive
and binding on the Borrower unless shown by the Borrower to the satisfaction of
the Bank to contain manifest error.


 


Section 3.14.                         Increased Costs


 


The Borrower shall, from time
to time within 15 Business Days following a demand of the Bank, reimburse the
Bank for any net incremental costs to the Bank of making or maintaining, or
committing to make, the Loan which result from the introduction of, or any
change in, any applicable law or any applicable guideline or policy (whether or
not having the force of law), or any change in the interpretation or
application thereof by any Governmental Authority charged with the
administration thereof, subsequent to the date of this Agreement. A certificate
of the Bank as to the amount of such net incremental costs shall be final,
conclusive and binding on the Borrower unless shown by the Borrower to the
satisfaction of the Bank to contain manifest error.


 


Section 3.15.                         Illegality


 


Notwithstanding anything in
this Agreement, if it is or becomes unlawful in any jurisdiction for the Bank
to make, maintain or fund the Loan or perform any of its obligations under this
Agreement, then:


 


(1)                             upon request by
the Bank, the Borrower shall, on the next Interest Payment Date or such earlier
date as the Bank may specify, prepay that portion of the principal amount of
the Loan which the Bank notifies to the Borrower as being affected by such
change, together with all accrued interest and other amounts payable thereon;
and


 


30

















 


(2)                             upon notice
from the Bank, any portion of the Loan which the Bank notifies to the Borrower
as being affected by such change and which has not theretofore been disbursed
shall be cancelled immediately.


 


Section 3.16.                         Loan Account


 


The Bank shall open and
maintain on its books an account in the Borrower’s name showing the
Disbursements and repayments thereof and the computation and payment of
interest, charges, commissions, fees and other amounts due and sums paid
hereunder. Such account shall be final, conclusive and binding on the Borrower
as to the amount at any time due from the Borrower hereunder, absent manifest
error.


 


ARTICLE IV - CONDITIONS PRECEDENT


 


Section 4.01.                         First Disbursement of Tranche 1


 


The obligation of the Bank
to make the first Disbursement of Tranche 1 shall be subject to the prior
fulfilment, in form and substance satisfactory to the Bank, or at the sole
discretion of the Bank the waiver, whether in whole or part and whether subject
to conditions or unconditional, of the following conditions precedent: 


 


(a)               Financing
Agreements. The Bank shall have received duly executed originals
of the following agreements:


 


(1)                             this Agreement;


 


(2)                             the Parent
Guarantee;


 


(3)                             the Ultimate
Parent Guarantee;


 


(4)                             the Share
Retention Agreement; and


 


(5)                             the Letter of
Information.


 


(b)              Security. The Security
shall have been validly created and perfected in a manner satisfactory to the
Bank and the Bank shall have received duly executed originals of the following
Security Documents, together with any document, recording, filing,
notification, registration, notarisation or other evidence required, in the
opinion of the Bank, for the creation, validity, perfection or priority of the
Liens of the Bank in or under such Security Documents:


 


(1)                             the Bank
Account Pledges; and


 


(2)                             the Shares
Pledge.


 


(c)               Charters. The Bank shall
have received certified copies of the Charters (and, if relevant, certificates
of registration and good standing) of the Borrower and each Guarantor and, at
the request of the Bank, any other parties to the Financing


 


31

















 


Agreements, each as amended
to date.


 


(d)              Corporate
Authorisations. The Bank shall have received certified copies of all
corporate (including, if required, shareholder) Authorisations necessary for
the due execution, delivery and performance of the Financing Agreements, and
any other documents in implementation thereof, by the Borrower and each
Guarantor and, at the request of the Bank, any other parties thereto and for
the transactions contemplated thereby, including the authorisations of the
persons signing the Financing Agreements to sign such documents and to bind the
respective parties thereby.


 


(e)               Specimen
Signatures. The Bank shall have received:


 


(1)                             a certificate
of incumbency and authority of the Borrower substantially in the form of Exhibit B;
and


 


(2)                             a certificate
of an appropriate officer of each Guarantor and, at the request of the Bank,
any other party to the Financing Agreements certifying the specimen signature
of each person authorised to sign, on behalf of such party, the Financing
Agreements to be entered into and performed by such party.


 


(f)                 Governmental
and Other Authorisations. The Bank shall have received
certified copies of all Authorisations, including creditors’ consents,
necessary for the execution, delivery and performance of the Financing
Agreements by the Borrower, each Guarantor, the Shareholders, and, at the
request of the Bank, any other parties thereto and for the transactions
contemplated thereby, including:


 


(1)                             the borrowing
by the Borrower under this Agreement;


 


(2)                             the creation of
the Security;


 


(3)                             the remittance
to the Bank of all monies payable in respect of the Financing Agreements; and


 


(4)                             the carrying on
of the business of the Borrower as it is presently carried on and is
contemplated to be carried on; 


 


other than any Authorisation
of a routine or minor nature which is not necessary at the time of the proposed
Disbursement and which is customarily granted in due course after timely
application, and in respect of which the Borrower is not aware of any reason
for it being unable to obtain in due course such Authorisation.


 


(g)              Auditors
Letter. The Bank shall have received a copy of a letter to
the Auditors from the Ultimate Parent substantially in the form of Exhibit C.


 


(h)              Process
Agent Appointments. The Bank shall have received written confirmation
from the agents for service of process appointed by the Borrower, each
Guarantor and the Shareholders, pursuant to the Financing Agreements of their
acceptances of such appointments.


 


(i)                  Legal
Opinions. The Bank shall have received the following legal
opinions regarding such matters incident to the transactions contemplated by
the Financing


 


32

















 


Agreements as the Bank
reasonably requests:


 


(1)                             the opinion of
Cocalis & Psarras, special Greek counsel to the Borrower;


 


(2)                             the opinion of
DLA Piper UK Limited, special English counsel to the Parent;


 


(3)                             the opinion of
Mourant Ozannes, special Jersey counsel to the Ultimate Parent;


 


(4)                             the opinion of
Walkers , special Jersey counsel to the Bank; and


 


(5)                             the opinion of
Norton Rose LLP, special English and Greek counsel to the Bank.


 


(j)                  Accounts. The Borrower
shall have opened the Accounts and deposited therein the amounts provided in Section 9.01.


 


Section 4.02.                         First Disbursement of Tranche 2


 


The obligation of the Bank
to make the first Disbursement of Tranche 2 shall be subject to the prior
fulfilment, in form and substance satisfactory to the Bank, or at the sole
discretion of the Bank the waiver, whether in whole or part and whether subject
to conditions or unconditional, of the following conditions precedent:


 


(a)               Tranche 1. The full
amount of Tranche 1 shall have been disbursed to the Borrower.


 


(b)              Financial
Statements. The Bank shall have received the consolidated
Financial Statements of the Ultimate Parent and its Subsidiaries for the
financial period ending on 30 June 2010 reviewed by the relevant Auditors
and evidencing such financial performance of the Ultimate Parent and its
Subsidiaries which is acceptable to the Bank. 


 


(c)               Financial
Covenants. The Bank shall have received a report by the
Borrower containing also details of calculations, certifying that on the basis
of the latest consolidated semi-annual Financial Statements of the Ultimate
Parent and its Subsidiaries:


 


(i)        the ratio of Net Debt to
Operating EBITDA, on a rolling 12 months basis, is not more than 2.50:1;


 


(ii)     the ratio of EBIT to Net
Interest Expense, is not less than 1.60:1; and


 


(iii)  the ratio of Total
Liabilities to Shareholders Equity, is not more than 2.00:1.


 


(d)              Other
Covenants. The Bank shall have received evidence satisfactory
to it that the Borrower is in compliance with all other covenants under this
Agreement.


 


(e)               Availability
Notice. The Bank shall have notified the Borrower in writing
that Tranche 2 has become available.


 


33

















 


Section 4.03.
                      All Disbursements


 


The obligation of the Bank
to make any Disbursement shall also be subject to the fulfilment, in form and
substance satisfactory to the Bank, or at the sole discretion of the Bank the
waiver, whether in whole or part and whether subject to conditions or
unconditional, of the conditions that, on the date of the Borrower’s
application for such Disbursement and on the date of such Disbursement: 


 


(a)               Continuing
Validity of Documents. All agreements, documents and instruments
delivered to the Bank pursuant to Section 4.01 shall be in full force and
effect and unconditional (except for this Agreement having become
unconditional, if that is a condition of any such agreement, document or
instrument).


 


(b)              Representations
and Warranties. The representations and warranties made or confirmed
by the Borrower, each Guarantor and each Shareholder in the Financing
Agreements shall be true on and as of such dates with the same effect as though
such representations and warranties had been made on and as of such dates.


 


(c)               No Default.
No Default shall have occurred and be continuing or shall, in the
reasonable opinion of the Bank, be imminent and the Borrower shall not, as a
result of such Disbursement, be in violation of its Charter, any provision
contained in any agreement or instrument to which the Borrower is a party
(including this Agreement) or by which the Borrower is bound or any law
applicable to the Borrower.


 


(d)              No Material
Adverse Change. Nothing shall have occurred which, in the
reasonable opinion of the Bank, might have a Material Adverse Effect.


 


(e)               Use of
Proceeds. The proceeds of such Disbursement shall be needed
by the Borrower for general corporate purposes and shall be used only in the
Member States, and the Bank shall have received such evidence as to the
proposed utilisation of the proceeds of such Disbursement and the utilisation
of the proceeds of any prior Disbursement as the Bank reasonably requests.


 


(f)                 Fees and
Expenses. The Bank shall have received payment of all amounts
due and owing to it under the Financing Agreements, including all fees and
expenses described in Section 3.04 and Section 5.09.


 


(g)              Disbursement
Application. The Bank shall have received an original of the
Borrower’s timely application for such Disbursement substantially in the form
of Exhibit A.


 


(h)              Accounts. The Borrower
shall have deposited in the relevant Account the amounts provided in Section 9.01
to be deposited therein prior to the relevant Disbursement.


 


34

















 


ARTICLE V - AFFIRMATIVE COVENANTS


 


Unless the Bank otherwise
agrees in writing:


 


Section 5.01.                         Maintenance and Continuity of Business


 


The Borrower shall maintain
its corporate existence in compliance with all applicable laws. The Borrower
shall conduct its business with due diligence and efficiency, in accordance
with sound engineering, financial and business practices and in compliance with
all applicable laws, including all money laundering, environmental, health and
safety laws. The Borrower shall use procurement methods and internal control
procedures which ensure a sound selection of goods and services at fair market
value and that the Borrower is making its capital investments in a cost
effective manner.


 


Section 5.02.                         Accounting


 


(a)               The Borrower shall maintain,
and shall procure that each Guarantor maintains, books of account and other
records adequate to present fairly the consolidated financial position,
financial performance and cash flows of (i) the Borrower and its
Subsidiaries and the results of its operations in conformity with Generally
Accepted Accounting Principles and (ii) the Ultimate Parent and its
Subsidiaries and the results of its operations in conformity with US GAAP.


 


(b)              The Borrower shall maintain,
and shall procure that the Ultimate Parent maintains, as its auditors a firm of
independent accountants acceptable to the Bank.


 


(c)               The Borrower shall procure
that the Ultimate Parent shall authorise, by a letter substantially in the form
of Exhibit C, the relevant Auditors to communicate directly with the Bank
at any time regarding the Borrower’s and the Ultimate Parent and its
Subsidiaries’ accounts and operations with the Borrower acting as a channel of
communication thereto.


 


Section 5.03.                         Continuing Governmental and Other Authorisations


 


The Borrower shall obtain
and maintain in force (or, where appropriate, renew) all Authorisations
required for the purposes described in Sections 4.01(d) and 4.01(f). The
Borrower shall perform and observe all the conditions and restrictions contained
in, or imposed on the Borrower by, such Authorisations.


 


Section 5.04.                         Security


 


The Borrower shall create,
perfect, maintain and, as appropriate, renew the Security in a manner
satisfactory to the Bank.


 


35

















 


Section 5.05.                         Compliance with Other Obligations


 


The Borrower shall comply in
all material respects with all agreements to which it is a party or by which it
or any of its properties or assets is bound.


 


Section 5.06.                         Taxes


 


(a)               The Borrower shall pay when
due all of its Taxes, including any Taxes against any of its properties, other
than Taxes which are being contested in good faith and by proper proceedings
and as to which adequate reserves have been set aside for the payment thereof. The
Borrower shall make timely filings of all Tax returns and governmental reports
required to be filed or submitted under any applicable law.


 


(b)              The Borrower shall pay all
Taxes payable on, or in connection with, the execution, issue, delivery,
registration or notarisation of any Financing Agreement or any other document
related to this Agreement. Upon notice from the Bank, the Borrower shall pay to
the Bank, or reimburse the Bank for, an amount equal to any such Taxes levied
on or paid by the Bank.


 


Section 5.07.                         Financial Ratios


 


(a)               Operating
EBITDA Ratio. The Borrower shall, at all times, not permit the
ratio of Net Debt to Operating EBITDA of the Ultimate Parent and its
Subsidiaries to exceed 3.00:1 on an annual basis.


 


(b)              Leverage
Ratio. The Borrower shall, at all times, not permit the ratio of Total
Liabilities of the Ultimate Parent and its Subsidiaries to Shareholders Equity,
to exceed 2.00:1 on an annual and semi-annual basis.


 


(c)               Interest
Cover Ratio. The Borrower shall, at all times, procure that the
Ultimate Parent maintains a ratio of EBIT of the Ultimate Parent and its
Subsidiaries to Net Interest Expense of the Ultimate Parent and its
Subsidiaries, of not less than 1.60:1 on an annual basis.


 


Without prejudice to the
Borrower’s obligations under Section 5.12, the Bank shall be entitled at
any time to request such financial and other information as it shall consider
appropriate to assess compliance with any or all of the covenants in Section 5.07.


 


Section 5.08.                         Further Documents


 


The Borrower shall execute
all such other documents and instruments and do all such other acts and things
as the Bank may determine are necessary or desirable to give effect to the
provisions of the Financing Agreements and to cause the Financing Agreements to
be duly registered, notarised and stamped in any applicable jurisdiction. The
Borrower hereby irrevocably appoints and constitutes the Bank as the Borrower’s
true and lawful attorney with right of substitution (in the name of the
Borrower or otherwise) to execute such documents and instruments and to do such
acts and things in the name of and on behalf of the Borrower in order to carry
out the provisions hereof.


 


36














 


Section 5.09.        Costs and
Expenses


 


(a)     The Borrower shall, whether
or not any Disbursement is made, pay to the Bank or as the Bank may direct,
within 30 days of the Bank furnishing to the Borrower the invoice thereof (but,
in any event, on or prior to the first Disbursement in the case of costs and
expenses incurred and invoiced to the Borrower prior to the date of the first
Disbursement):


 


(1)  all out-of-pocket costs and
expenses (including, travel expenses and the fees and expenses of outside
counsel, accountants and consultants to the Bank) incurred by the Bank in
connection with:


 


i)      the assessment, preparation,
negotiation and arrangement of the Loan by the Bank;


 


ii)     the preparation, review,
negotiation, execution and, where appropriate, registration and notarisation of
the Financing Agreements and the Security and any other documents related
thereto; and


 


iii)    the giving of any legal
opinions hereunder,


 


Provided however that the total
out-of-pocket expenses outlined in item (1) above shall not exceed the
equivalent of EUR 100,000 (One Hundred Thousand Euros) and that, if the said
expenses reach the equivalent of EUR 100,000 (One Hundred Thousand Euros), the
Bank will seek approval of the Borrower to incur additional expenses of up to a
further EUR 10,000 (Ten Thousand Euros) and similarly thereafter as each agreed
threshold is reached.


 


(b)     The Borrower shall pay all
out-of-pocket expenses (including travel expenses) incurred by the Bank in
connection with the administration and monitoring of the Financing Agreements
after the date of this Agreement until the full repayment of the Loan in an
amount foreseen not to exceed the equivalent of EUR 10,000 (Ten Thousand Euros)
per annum.


 


(c)     The Borrower shall pay to
the Bank or as the Bank may direct, on demand, all fees, costs and expenses
(including, legal fees and expenses) incurred by the Bank:


 


(1)     in the determination of
whether there has occurred a Default;


 


(2)     in respect of the
preservation or enforcement of any of its rights under any Financing Agreement
and the collection of any amount owing to the Bank; and 


 


(3)     in connection with the
assessment, preparation, review, negotiation, execution and, where appropriate,
registration and notarisation of any amendment to or waiver of any Financing
Agreement or any other document related thereto.


 


Section 5.10.        Ranking


 


The Borrower shall ensure
that its obligations under this Agreement shall at all times rank at least pari
passu with all its other present and future direct senior obligations of the
Borrower, other than obligations mandatorily preferred by law.


 


37

















 


Section 5.11.        Use of
proceeds


 


The Borrower shall:


 


(a)     Use the proceeds of the Loan
for general corporate purposes, including organic growth, capital investments,
working capital needs, including for the developmental purposes of Law
3299/2004 (as such law is published in Issue A 261 of 23 December 2004 of
the Government Gazette of the Hellenic Republic) as well as expansion through
mergers and/or acquisitions of appropriate target companies.


 


(b)     Ensure that the proceeds of
the Loan are used only in Member States.


 


(c)     Ensure that all uses of the
proceeds of the Loan by the Borrower are consistent with all applicable laws,
including local environmental, health, safety and employment regulations and
standards.


 


(d)     Comply with the Bank’s
Negative List of Products attached hereto as Schedule 2 as regards its business
and operations.


 


Section 5.12.        Furnishing
of Information


 


(a)     As soon as available but, in
any event, within 10 days after each Interest Payment Date, the Borrower shall
furnish to the Bank a report on the moneys standing to the credit of the
Deposit Account and the DSRA Account on such date, certified by an officer of
the Borrower.


 


(b)     As soon as available but, in
any event, within 90 days after the end of the first half of each Financial
Year, the Borrower shall furnish to the Bank:


 


(1)     two copies of the
consolidated Financial Statements of the Borrower, the Ultimate Parent and its
Subsidiaries, in each case, for such semi-annual period, the latter as reviewed
by the relevant Auditors in a form substantially similar to the Financial
Statements for the Financial Year and, if requested by the Bank, certified by
an officer of the Borrower or, in relation to the Ultimate Parent and its
Subsidiaries’ Financial Statements, an officer of the Ultimate Parent; 


 


(2)     a management discussion and
analysis of results for such semi-annual period, including a report on projects
which were financed or investments made in the Member States (including out of
the proceeds of the Loan) and including a report on any factors materially and
adversely affecting or which might materially and adversely affect the Ultimate
Parent and its Subsidiaries’ business, operations or financial condition or a
statement that there are no such factors in a format acceptable to the Bank;
and 


 


(3)     a report by the Borrower
certifying that the Ultimate Parent and its Subsidiaries were in compliance
with the financial covenants contained in Section 5.07 as at the end of
such period of such Financial Year or detailing any non-compliance, as the case
may be, and including details of the calculations of such financial covenants.


 


38

















 


(c)     As soon as available but, in
any event, within 150 days after the end of each Financial Year, the Borrower
shall furnish to the Bank:


 


(1)     two copies of the
consolidated Financial Statements of the Ultimate Parent and its Subsidiaries
for such Financial Year, together with a report of the relevant Auditors
thereon prepared in accordance with US GAAP; and


 


(2)     a copy of a report, in form
and substance satisfactory to the Bank, substantially following the template
provided in the attached hereto Schedule 3, on environmental, health and safety
issues arising in relation to the Borrower during such Financial Year.


 


(d)     As soon as available but, in
any event, within 60 days after the end of each Financial Year, the Borrower
shall furnish to the Bank a security certificate in the form of Exhibit D,
providing the Bank with an update of any property or rights owned or acquired
by the Borrower which are required to be provided as part of the Security and
confirming to the Bank that each of the Security Documents constitutes a valid
and perfected security interest in the collateral covered by such Security
Document.


 


(e)     The Borrower shall promptly
notify the Bank of any event or condition (including, any pending or threatened
litigation, arbitration or administrative proceeding) which might have a
Material Adverse Effect.


 


(f)      Immediately upon the
occurrence of any Default, the Borrower shall give the Bank notice thereof by
facsimile transmission specifying the nature of such Default and any steps the
Borrower is taking to remedy the same.


 


(g)     The Borrower shall furnish
promptly to the Bank a copy of all the decisions of its board of directors’
meetings and the resolutions of its shareholders’ meetings affecting the Loan.


 


(h)     The Borrower shall promptly
notify the Bank if the Borrower obtains any information regarding a violation
of Section 2.01(h) or Section 6.12 or if any international
financial institution has imposed any sanction on the Borrower or any other
member of the Borrower Group for any Prohibited Practice. If the Bank notifies
the Borrower or the Ultimate Parent or any of its Subsidiaries of its concern
that there has been a violation of Section 2.01(h) or Section 6.12,
the Borrower shall cooperate in good faith with the Bank and its
representatives in determining whether such a violation has occurred and shall
respond promptly and in reasonable detail to any such notice from the Bank and
shall furnish documentary support for such response upon the Bank’s request.


 


(i)      The Borrower shall furnish
promptly to the Bank such other information as the Bank may from time to time
reasonably request. The Borrower shall permit representatives of the Bank
(including, any consultants engaged by the Bank) to visit the premises where
the business of the Borrower is conducted and to have access to the books of
account and records of the Borrower, subject to three Business Days prior
notice and to the extent permitted by law.


 


39

















 


Section 5.13.        Systems


 


The Borrower shall maintain
satisfactory to the Bank accounting, cost control and management information
systems.


 


ARTICLE VI - NEGATIVE COVENANTS


 


Unless the Bank otherwise
agrees in writing:


 


Section 6.01.        Dividends


 


Except as expressly provided
herein, the Borrower shall not declare or pay any dividend, or make any
distribution on its share capital, or purchase, redeem or otherwise acquire any
shares of capital of the Borrower or any option over the same, or make any
payment of principal or interest on any Subordinated Debt. Notwithstanding the
foregoing, the Borrower may take any such action, but only if no Default has
occurred and is continuing at the time of such action or no Default will occur
as a result of such action.


 


Section 6.02.        Liens


 


The Borrower shall not
create or permit to exist any Lien on any property, revenues or other assets,
present or future, of the Borrower, except:


 


(1)     the Security;


 


(2)     any Tax or other
non-consensual Lien arising by operation of law or other statutory Lien arising
in the ordinary course of business, provided that such Lien (other than a Lien
for a sum which is not yet delinquent) is discharged within 60 days after the
date it is created or, if the validity or amount of such Lien or the sum
secured by such Lien is being contested in good faith and by proper proceedings
and adequate reserves have been set aside for the payment of such sum, within
60 days after final adjudication; 


 


(3)     any Lien existing and
disclosed in the Letter of Information, including any such Lien securing
underlying Financial Debt which may be extended on an annual basis; and 


 


(4)     any other Lien, provided
that the maximum aggregate amount secured by all such Liens does not exceed EUR
2,000,000 (Two Million Euros) (or the equivalent thereof in any other
currency).


 


Section 6.03.        Derivative
Transactions


 


The Borrower shall not enter
into any interest rate or currency swap, interest rate cap or collar, forward
rate agreement or other interest rate, currency or commodity


 


40

















 


hedge or similar derivative
transaction, except in the ordinary course of business for the purposes of
hedging in whole or in part its exposure in respect of its assets and its
liabilities.


 


Section 6.04.        Arm’s
Length Transactions


 


The Borrower shall not enter
into any transaction with any person except in the ordinary course of business,
on ordinary commercial terms and on the basis of arm’s-length arrangements, or
enter into any transaction whereby the Borrower would pay more than the
ordinary commercial price for any purchase or would receive less than the full
ex-works commercial price (subject to normal trade discounts) for its products
or services.


 


Section 6.05.        Profit-sharing
and Management Arrangements


 


(a)     The Borrower shall not enter
into any partnership, profit-sharing or royalty agreement or other similar
arrangement whereby the Borrower’s income or profits are, or might be, shared
with any other person Provided however that for the avoidance of doubt
any profit-sharing or revenue-sharing or royalty agreement or other similar
arrangement whereby the Borrower’s counterparty’s income or profits are, or
might be, shared with any other person (including, without limitation, the
Borrower), shall be exempt from the application of this Section 6.05(a).


 


(b)     The Borrower shall not enter
into any management contract or similar arrangement whereby its business or
operations are managed by any other person.


 


Section 6.06.        Investments


 


The Borrower shall not form
or have any Subsidiary other than those referred to in Section 2.01(b) hereof,
or make or permit to exist loans or advances to, or deposits (other than
deposits in the ordinary course of business with reputable banks) with, other
persons or investments in any person or enterprise, which such person or enterprise
is not a member of the Borrower Group; provided, however, that the Borrower
shall be at liberty to invest in short-term investment grade marketable
securities solely to give temporary employment to the Borrower’s idle
resources.


 


Section 6.07.        Financing
Agreements


 


The Borrower shall not
terminate, amend or grant any waiver in respect of any provision of any
Financing Agreement to which it is a party.


 


Section 6.08.        Changes in
Business, Capital and Charter


 


(a)     The Borrower shall not make
changes, or permit changes to be made, to the nature of its present business or
operations in any a manner which would prevent the Borrower from fulfilling its
obligations under any Financing Agreement.


 


41

















 


(b)     The Borrower shall not
decrease its capital.


 


(c)     The Borrower shall not make
changes, or permit changes to be made, to its Charter in any manner which would
be inconsistent with the provisions of any Financing Agreement.


 


(d)     The Borrower shall not take
any other action which in the reasonable opinion of the Bank may adversely
affect the Borrower’s ability to fulfil its obligations under any Financing
Agreement.


 


Section 6.09.        Prepayment
of Long-term Debt


 


The Borrower shall not
(whether voluntarily or involuntarily) make any prepayment, repurchase or early
redemption of any of its Long-term Debt or make any repayment of any of its
Long-term Debt pursuant to any provision of any agreement or note which
provides directly or indirectly for acceleration of repayment in time or
amount, unless in any such case, if the Bank so requires, the Borrower
contemporaneously makes a proportionate prepayment of the principal amount then
outstanding of the Loan in accordance with the provisions of Section 3.09
(except that there shall be no prepayment fee and no minimum amount or notice
period for such prepayment) Provided however that this Section 6.05
shall not apply to any prepayment, repurchase or early redemption of any
Long-term Debt of the Borrower or to any repayment of any Long-term Debt of the
Borrower pursuant to any provision of any agreement or note which provides
directly or indirectly for acceleration of repayment in time or amount, to the
extent made with funds raised by the Ultimate Parent by listing its shares on
Nasdaq.


 


Section 6.10.        Sale of
Assets; Merger


 


(a)     The Borrower shall not sell,
transfer, lease or otherwise dispose of any of its assets (whether in a single
transaction or in a series of transactions, related or otherwise) with carrying
value in excess of 20% of the Shareholders Equity, as provided in the relevant
Financial Statements for the financial year preceding such disposition of
assets.


 


(b)     The Borrower shall not
undertake or permit any merger, consolidation or reorganisation that would
affect more that 20% of the Shareholders Equity, as provided in the relevant
Financial Statements for the financial year preceding such merger,
consolidation or reorganisation.


 


Section 6.11.        Shareholding


 


The Borrower shall procure
that the Parent shall not sell, transfer, or otherwise dispose of any of its
shares (whether in a single transaction or in a series of transactions, related
or otherwise) in the Borrower.


 


42

















 


Section 6.12.        Fraud and
Corruption


 


The Borrower shall not, and
shall not authorise or permit any of its officers, directors, authorised
employees, Affiliates, agents or representatives to, engage in, with respect to
any transactions contemplated by this Agreement, any Prohibited Practice.


 


ARTICLE VII - EVENTS OF DEFAULT


 


Section 7.01.        Events of
Default


 


Each of the following events
and occurrences shall constitute an Event of Default under this Agreement: 


 


(a)     Payments. The Borrower
fails to pay when due any principal of, or interest on, the Loan as required by
this Agreement, except where both of the following conditions apply:


 


(1)     the failure to pay is due to
an administrative error of an account bank, other than an error caused by the
negligence or wilful misconduct of the Borrower; and


 


(2)     within three Business Days
after the due date full payment of the same is made in accordance with this
Agreement.


 


(b)     Covenants. The Borrower
or any other party (other than the Bank) fails to perform in a timely manner
any of its obligations under any Financing Agreement or any other agreement
between the Borrower and the Bank, the failure to perform such obligation is
not referred to elsewhere in this Section 7.01 and, if capable of remedy,
such failure to perform has continued for a period of 30 days after notice
thereof has been given to the Borrower by the Bank.


 


(c)     Representations. Any
representation or warranty made or confirmed by the Borrower, each Guarantor or
any Shareholder, in any Financing Agreement was false or misleading in any
material respect when made or repeated.


 


(d)     Nationalisation.
Any Governmental Authority condemns, nationalises, seizes or otherwise
expropriates all or any substantial part of the property or other assets of the
Borrower or of its share capital, or assumes custody or control of such
property or other assets or of the business or operations of the Borrower or of
its share capital, or acquires majority ownership of the Borrower, or takes any
action for the dissolution or disestablishment of the Borrower or any action
that would prevent the Borrower or its officers from carrying on its business
or operations or a substantial part thereof.


 


(e)     Bankruptcy. A decree or
order by a court is entered against the Borrower or each Guarantor adjudging
the Borrower, or such Guarantor bankrupt (in the case of the Ultimate Parent,
including as such term is defined in article 8 of the Interpretation (Jersey)
Law 1954) or insolvent or ordering the winding up or liquidation of its
affairs; or a petition is filed seeking reorganisation, administration,
arrangement, adjustment, composition or liquidation of or in respect of the
Borrower or a Guarantor under any applicable law other than any vexatious
procedure initiated by any third party and discharged within 60 days; or a
receiver, administrator, liquidator, assignee, trustee,


 


43

















 


sequestrator, secured
creditor or other similar official is appointed over or in respect of the
Borrower or a Guarantor or any substantial part of its property or assets; or
the Borrower or a Guarantor institutes proceedings to be adjudicated bankrupt
or insolvent, or consents to the institution of bankruptcy or insolvency
proceedings against it, or files a petition or answer or consent seeking
reorganisation, administration, relief or liquidation under any applicable law,
or consents to the filing of any such petition or to the appointment of a
receiver, administrator, liquidator, assignee, trustee, sequestrator, secured
creditor or other similar official of the Borrower or a Guarantor or of any
substantial part of its property, or makes an assignment for the benefit of
creditors, or admits in writing its inability to pay its debts generally as
they become due; or any other event occurs which under any applicable law would
have an effect analogous to any of the events listed in this Section.


 


(g)     Financial
Debt. Any payment on any Financial Debt of the Borrower of an amount higher
than EUR 2,000,000 (Two Million Euros) (other than the Loan) is not paid when
due nor within any originally applicable grace period; or a default of any
nature not otherwise provided for in this Section occurs under any
agreement evidencing any such Financial Debt of the Borrower and such default
continues beyond any applicable period of grace; or any such Financial Debt of
the Borrower becomes prematurely due and payable or is placed on demand.


 


(h)     Change of
Control. Any change of control of the Borrower or the Parent
or any change in the direct or indirect legal or beneficial ownership of the Borrower
occurs or the Parent ceases at any time to own directly or indirectly at least
100% of the issued and outstanding shares of the Borrower or the Ultimate
Parent ceases at any time to own directly or indirectly at least 100% of the
issued and outstanding shares of the Parent, in each case without the prior
written consent of the Bank.


 


(i)      Material Adverse Effect. Any circumstance or event
occurs which, in the reasonable opinion of the Bank, is likely to have a
Material Adverse Effect.


 


Section 7.02.        Consequences
of Default


 


If an Event of Default
occurs and is continuing, then the Bank may at its option, by notice to the
Borrower, declare all or any portion of the principal of, and accrued interest
on, the Loan (together with any other amounts accrued or payable under this
Agreement) to be, and the same shall thereupon become (anything in this
Agreement to the contrary notwithstanding), either:


 


(1)     due and payable on demand; or


 


(2)     immediately due and payable without any
further notice and without any presentment, demand or protest of any kind, all
of which are hereby expressly waived by the Borrower.


 


44

















 


ARTICLE VIII - MISCELLANEOUS


 


Section 8.01.        Term of
Agreement


 


This Agreement shall
continue in force until the date that the obligation of the Bank to make
Disbursements hereunder has terminated in accordance with the terms hereof or,
if later, until all moneys payable hereunder have been fully paid in accordance
with the provisions hereof; provided that the indemnities and warranties of the
Borrower and the provisions of Sections 3.10(a), 3.10(d), 8.04, 8.05, 8.08,
8.09, 8.10 and 8.11 shall survive repayment of the Loan and termination of this
Agreement.


 


Section 8.02.        Entire
Agreement; Amendment and Waiver


 


This Agreement and the
documents referred to herein constitute the entire obligation of the parties
hereto with respect to the subject matter hereof and shall supersede any prior
expressions of intent or understandings with respect to this transaction. Any
amendment to, waiver by the Bank of any of the terms or conditions of, or
consent given by the Bank under, this Agreement (including, this Section 8.02)
shall be in writing, signed by the Bank and, in the case of an amendment, by
the Borrower. The parties to this Agreement may by agreement rescind or vary
this Agreement without the consent of any person that is not a party to this
Agreement. In the event that the Bank waives a condition to any Disbursement,
the Borrower shall, by receiving the proceeds of such Disbursement, be deemed
to have agreed to all of the terms and conditions of such waiver.


 


Section 8.03.        Notices


 


Any notice, application or
other communication to be given or made under this Agreement to the Bank or to
the Borrower shall be in writing. Except as otherwise provided in this
Agreement, such notice, application or other communication shall be deemed to
have been duly given or made when it is delivered by hand, airmail or facsimile
transmission to the party to which it is required or permitted to be given or
made at such party’s address specified below or at such other address as such
party designates by notice to the party giving or making such notice,
application or other communication.


 


For the Borrower:


 


VELTI SOFTWARE PRODUCTS AND RELATED
PRODUCTS AND SERVICES S.A.


44 Kifissias Avenue,


151 25 Marousi,


Athens, Greece


 


	
  Attention:

  	
   

  	
  Mr. Menelaos
  Scouloudis

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +30 210 6378 883

  



 


For the Bank:


 


45

















 


BLACK SEA TRADE AND
DEVELOPMENT BANK


1 Komninon Street


546 24 Thessaloniki


Hellenic Republic


 


	
  Attention:

  	
   

  	
  Operation Leader, Energy
  and Infrastructure Department, Banking Division

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +20 2310 290 469

  



 


Section 8.04.        English
Language


 


All documents to be
furnished or communications to be given or made under this Agreement shall be
in the English language or, if in another language, shall be accompanied by a
translation into English certified by the Borrower, which translation shall be
the governing version between the Borrower and the Bank.


 


Section 8.05.        Financial
Calculations


 


All financial calculations
to be made under, or for the purposes of, this Agreement shall be made in
accordance with US GAAP and, except as otherwise required to conform to the
definitions contained in Article I or any other provisions of this
Agreement, shall be made using the then most recently issued annual
consolidated audited Financial Statements of the Ultimate Parent and its
Subsidiaries in respect of the financial covenants contained in Sections 5.07(a) and
5.07(c) and the annual consolidated audited and semi-annual consolidated
reviewed Financial Statements of the Ultimate Parent and its Subsidiaries in
respect of the financial covenant contained in Section 5.07(b) which
the Borrower is required to furnish to the Bank from time to time under Section 5.14;
provided, however, that:


 


(1)     if the relevant half-yearly
Financial Statements should be in respect of the last half-year of a Financial
Year then, at the Bank’s option, such calculations may instead be made from the
audited Financial Statements for the relevant Financial Year; and 


 


(2)     if there should occur any
material adverse change in the financial condition of the Borrower or, as the
case may be, the Ultimate Parent or any of its Subsidiaries after the end of
the period covered by the relevant Financial Statements, then such material
adverse change shall also be taken into account in calculating the relevant
figures.


 


Section 8.06.        Rights,
Remedies and Waivers


 


(a)     The rights and remedies of
the Bank in relation to any misrepresentations or breach of warranty on the
part of the Borrower shall not be prejudiced by any investigation by or on
behalf of the Bank into the affairs of the Borrower, by the execution or the
performance of this Agreement or by any other act or thing which may


 


46














 


be done by or on behalf of
the Bank in connection with this Agreement and which might, apart from this
Section, prejudice such rights or remedies.


 


(b)              No course of dealing or
waiver by the Bank in connection with any condition of Disbursement under this Agreement
shall impair any right, power or remedy of the Bank with respect to any other
condition of Disbursement or be construed to be a waiver thereof.


 


(c)               No action of the Bank in
respect of any Disbursement shall affect or impair any right, power or remedy
of the Bank in respect of any other Disbursement. Without limiting the
foregoing, the right of the Bank to require compliance with any condition under
this Agreement which may be waived by the Bank in respect of any Disbursement
is, unless otherwise notified to the Borrower by the Bank, expressly preserved
for the purposes of any subsequent Disbursement.


 


(d)              No course of dealing and no
delay in exercising, or omission to exercise, any right, power or remedy
accruing to the Bank upon any default under this Agreement or any other
agreement shall impair any such right, power or remedy or be construed to be a
waiver thereof or an acquiescence therein. No single or partial exercise of any
such right, power or remedy shall preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. No action of the
Bank in respect of any such default, or acquiescence by it therein, shall
affect or impair any right, power or remedy of the Bank in respect of any other
default.


 


(e)               The rights and remedies
provided in this Agreement and the other Financing Agreements are cumulative
and not exclusive of any other rights or remedies, whether provided by
applicable law or otherwise.


 


Section 8.07.                         Indemnification


 


(a)               The Borrower assumes full
liability for, and agrees to and shall indemnify and hold harmless the Bank and
its officers, directors, employees, agents and servants against and from, any
and all liabilities, obligations, losses, damages (compensatory, punitive or
otherwise), penalties, claims, actions, Taxes, suits, costs and expenses
(including, reasonable legal counsel’s fees and expenses and costs of
investigation) of whatsoever kind and nature, including, without prejudice to
the generality of the foregoing, those arising in contract or tort (including,
negligence) or by strict liability or otherwise, which are imposed on, incurred
by or asserted against the Bank or any of its officers, directors, employees,
agents or servants (whether or not also indemnified by any other person under
any other document) and which in any way relate to or arise out of, whether
directly or indirectly:


 


(1)                        any of the
transactions contemplated by any Financing Agreement or the execution, delivery
or performance thereof; 


 


(2)                        the operation
or maintenance of the Borrower’s facilities or the ownership, control or
possession thereof by the Borrower; 


 


(3)                        the exercise by
the Bank of any of its rights and remedies under any of the Financing
Agreements;


 


47

















 


(4)                        the occurrence
of any Event of Default; or


 


(5)                        any prepayment
of the Loan or part thereof being made under Section 3.15 otherwise that
on an Interest Payment Date,


 


Provided however that the Bank shall
not have any right to be indemnified hereunder for its own gross negligence or
wilful misconduct.


 


(b)              Without prejudice to the
Bank’s right to receive amounts under the indemnity in Section 8.07(a) on
behalf of itself and as agent and trustee of any of its officers, directors,
employees, servants and agents, any such officer, director, employee, servant
or agent may also bring an action pursuant to the Contracts (Rights of Third
Parties) Act 1999.


 


(c)               The Borrower acknowledges
that the Bank is entering into this Agreement, and has acted, solely as a lender,
and not as an advisor, to the Borrower. The Borrower represents and warrants
that, in entering into the Financing Agreements, it has engaged, and relied
upon advice given to it by, its own legal, financial and other professional
advisors and it has not relied on and will not hereafter rely on any advice
given to it by the Bank.


 


Section 8.08.                         Governing Law


 


This Agreement shall be
governed by and construed in accordance with English law. Any non-contractual
obligations arising out of or in connection with this Agreement shall be
governed by and construed in accordance with English law.


 


Section 8.09.                         Arbitration and Jurisdiction


 


(a)               Any dispute, controversy or
claim arising out of or relating to (1) this Agreement, (2) the
breach, termination or invalidity hereof or (3) any non-contractual
obligations arising out of or in connection with this Agreement shall be
settled by arbitration in accordance with the UNCITRAL Arbitration Rules as
at present in force. There shall be one arbitrator and the appointing authority
shall be LCIA (London Court of International Arbitration). The seat and place
of arbitration shall be London, England and the English language shall be used
throughout the arbitral proceedings. The parties hereby waive any rights under
the Arbitration Act 1996 or otherwise to appeal any arbitration award to, or to
seek determination of a preliminary point of law by, the courts of England. The
arbitral tribunal shall not be authorised to take or provide, and the Borrower
agrees that it shall not seek from any judicial authority, any interim measures
of protection or pre-award relief against the Bank, any provisions of the
UNCITRAL Arbitration Rules notwithstanding. The arbitral tribunal shall
have authority to consider and include in any proceeding, decision or award any
further dispute properly brought before it by the Bank (but no other party)
insofar as such dispute arises out of any Financing Agreement, but, subject to
the foregoing, no other parties or other disputes shall be included in, or
consolidated with, the arbitral proceedings. In any arbitral proceeding, the
certificate of the Bank as to any amount due to the Bank under any Financing
Agreement shall be prima facie
evidence of such amount.


 


48

















 


(b)              Notwithstanding Section 8.09(a),
this Agreement and the other Financing Agreements, and any rights of the Bank
arising out of or relating to this Agreement or any other Financing Agreement,
may, at the option of the Bank, be enforced by the Bank in the courts of the
Hellenic Republic or in any other courts having jurisdiction. For the benefit
of the Bank, the Borrower hereby irrevocably submits to the non-exclusive
jurisdiction of the courts of England with respect to any dispute, controversy
or claim arising out of or relating to this Agreement or any other Financing
Agreement, or the breach, termination or invalidity hereof or thereof. The
Borrower hereby irrevocably designates, appoints and empowers Velti Limited at
its registered office (being, on the date hereof, at 2 Paris Garden, Bastille Court,
SE1 8ND, London, England) to act as its authorised agent to receive service of
process and any other legal summons in England for purposes of any legal action
or proceeding brought by the Bank in respect of any Financing Agreement.
Failure by a process agent to notify the Borrower of the process will not
invalidate the proceedings concerned. The Borrower hereby irrevocably consents
to the service of process or any other legal summons out of such courts by
mailing copies thereof by registered airmail postage prepaid to its address
specified herein. The Borrower covenants and agrees that, so long as it has any
obligations under this Agreement, it shall maintain a duly appointed agent to
receive service of process and any other legal summons in England for purposes
of any legal action or proceeding brought by the Bank in respect of any
Financing Agreement and shall keep the Bank advised of the identity and
location of such agent. Nothing herein shall affect the right of the Bank to
commence legal actions or proceedings against the Borrower in any manner
authorised by the laws of any relevant jurisdiction. The commencement by the
Bank of legal actions or proceedings in one or more jurisdictions shall not preclude
the Bank from commencing legal actions or proceedings in any other
jurisdiction, whether concurrently or not. The Borrower irrevocably waives any
objection it may now or hereafter have on any grounds whatsoever to the laying
of venue of any legal action or proceeding and any claim it may now or
hereafter have that any such legal action or proceeding has been brought in an
inconvenient forum.


 


Section 8.10.                         Privileges and Immunities of the Bank


 


Nothing in this Agreement
shall be construed as a waiver, renunciation or other modification of any
immunities, privileges or exemptions of the Bank accorded under the Agreement
Establishing the Black Sea Trade and Development Bank, international convention
or any applicable law.


 


Section 8.11.                         Waiver of Sovereign Immunity


 


The Borrower represents and
warrants that this Agreement and the incurring by the Borrower of the Loan are
commercial rather than public or governmental acts and that the Borrower is not
entitled to claim immunity from legal proceedings with respect to itself or any
of its assets on the grounds of sovereignty or otherwise under any law or in
any jurisdiction where an action may be brought for the enforcement of any of
the obligations arising under or relating to this Agreement. To the extent that
the Borrower or any of its assets has or hereafter may acquire any right to
immunity from set-off, legal proceedings, attachment prior to judgement, other
attachment or execution of judgement on the grounds of sovereignty or
otherwise, the Borrower hereby irrevocably


 


49

















 


waives such rights to
immunity in respect of its obligations arising under or relating to this
Agreement.


 


Section 8.12.                         Successors
and Assigns; Third Party Rights


 


(a)               This Agreement shall bind
and inure to the benefit of the respective successors and assigns of the
parties hereto, except that the Borrower may not assign or otherwise transfer or
pledge all or any part of its rights or obligations under this Agreement
without the prior written consent of the Bank.


 


(b)              the Bank may sell, transfer,
assign, novate, sub-participate or otherwise dispose of all or part of its
rights or obligations under this Agreement and the other Financing Agreements,
Provided however that in the event that the Bank advises the Borrower that
it intends to sell or otherwise transfer its rights to a person other than a
financial institution having similar status and nature with that of the Bank
(World Bank, EBRD etc), then the Borrower shall have the right to prepay such
part of the Loan to be so sold or otherwise transferred upon 15 Business Days
prior notice and without payment of the fee contemplated in Section 3.09,
but otherwise in accordance with such Section.


 


(c)               Except as provided in Section 8.07(b),
Section 8.12(a) or Section 8.12(b), none of the terms of this
Agreement are intended to be enforceable by any third party under the Contracts
(Rights of Third Parties) Act 1999 or otherwise. Notwithstanding any term of
this Agreement, the consent of any third party is not required for any
variation (including any release or compromise of any liability under) or
termination of this Agreement.


 


Section 8.13.                         Disclosure


 


The Bank may disclose such
documents, information and records regarding the Borrower, the Borrower Group
and this transaction (including, copies of any Financing Agreements) as the
Bank deems appropriate in connection with any dispute involving the Borrower or
any other party to a Financing Agreement, for the purpose of preserving or
enforcing any of the Bank’s rights under any Financing Agreement or collecting
any amount owing to the Bank or any proposed sale, transfer, assignment,
novation, sub-participation or other disposal contemplated by Section 8.12.


 


Section 8.14.                         Counterparts


 


This Agreement may be
executed in several counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same agreement.


 


ARTICLE IX - ACCOUNTS


 


Section 9.01.                         General


 


The Borrower undertakes with
the Bank that it will:


 


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(a)               on or before
the date of this Agreement, open each of the Accounts;


 


(b)              at all times after the date
of the first Disbursement of Tranche 1, maintain in the Deposit Account an
amount in Euros not less than 15% of the Loan outstanding at any relevant time;



 


(c)               by the date of the first
Disbursement of Tranche 1, deposit in the DSRA Account the amount of EUR
300,000 (Three Hundred Thousand Euros); and 


 


(d)              following the deposit of EUR
300,000 (Three Hundred Thousand Euros) in the DSRA Account, make such further
deposits as necessary in order to reach the applicable Required DSRA Balance,
not later than 21 months after the date of the first Disbursement of Tranche 1;
and 


 


(e)               maintain in the DSRA Account
the Required DSRA Balance on each Interest Payment Date falling thereafter.


 


Section 9.02.
                      Deposit Account: withdrawals


 


So long as no Default shall
have occurred (whereupon the provisions of Section 9.04 shall apply), the
Borrower shall be entitled, subject to Section 9.01(b), to withdraw moneys
from the Deposit Account.


 


Section 9.03.                         DSRA Account: withdrawals


 


Subject to the proviso
hereto and so long as no Default shall have occurred (whereupon the provisions
of Section 9.04 shall apply), the Borrower shall be entitled to withdraw
moneys from the DSRA Account only for the purpose of paying the Loan and
interest falling due on the next Interest Payment Date provided that within the
next two months immediately following such Interest Payment Date, the amount
standing to the credit of the DSRA Account shall be not less than the
applicable Required DSRA Balance at the time.


 


Section 9.04.                         Application


 


At any time after the
occurrence of an Event of Default, the Bank may, without notice to the
Borrower, instruct the Account Bank to pay over to the Bank all moneys then
standing to the credit of the Accounts or either of them (together with
interest from time to time accruing or accrued thereon) for the Bank to apply
the same in or towards satisfaction of any sums due to the Bank under the
Financing Agreements.


 


Section 9.05.                         Charging


 


Each Account and all amounts
from time to time standing to the credit thereof shall be subject to the
security constituted and the rights conferred by the Account Pledges.


 


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Section 9.06.                         Representations and warranties


 


The Borrower hereby
represents and warrants to the Bank that:


 


(a)              it is the sole, absolute,
legal and beneficial owner of, and has good right and title to each Account;
and 


 


(b)             neither the Accounts nor any
part thereof is subject to any Lien save as constituted by the Bank Account
Pledges or otherwise permitted by the terms of this Agreement.


 


IN WITNESS
WHEREOF, the parties hereto, acting through their duly
authorised representatives, have caused this Agreement to be signed in their
respective names as of the date first above written.


 


VELTI SOFTWARE PRODUCTS  AND  RELATED  PRODUCTS  AND
SERVICES S.A.


 




	
  By:

  	
   

  	
  /s/ Menelaos Scouloudis

  	
   

  
	
   

  	
  Name:

  	
  Menelaos Scouloudis

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  






 


 


BLACK SEA
TRADE AND DEVELOPMENT BANK


 


 




	
  By:

  	
   

  	
  /s/ George Kottas

  	
   

  
	
   

  	
  Name:

  	
  George Kottas

  	
   

  
	
   

  	
  Title:

  	
  Secretary General

  	
   

  






 


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