Exhibit 10.9


 


AMENDMENT AND
RESTATEMENT DEED


 


14  OCTOBER 2009


 


BETWEEN


 


VELTI PLC

and others


 


and


 


THOR LUXEMBOURG
SARL


as Security Agent


 


relating to a
facilities agreement originally dated 26 June 2009


(as amended,
varied, restated, supplemented and novated from time to time) 



















 


CONTENTS


	
  Clause

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1.

  	
  Interpretation

  	
  3

  
	
  2.

  	
  Amendments and Accession of Newco

  	
  5

  
	
  3.

  	
  Representations and warranties

  	
  5

  
	
  4.

  	
  Incorporation

  	
  8

  
	
  5.

  	
  Guarantee

  	
  8

  
	
  6.

  	
  Security

  	
  8

  
	
  7.

  	
  Termination

  	
  9

  
	
  8.

  	
  Miscellaneous

  	
  9

  
	
  9.

  	
  Governing law

  	
  10

  
	
   

  	
   

  	
   

  
	
  Schedule

  	
   

  
	
   

  	
   

  
	
  The Parties

  	
  11

  
	
  The Borrowers

  	
  11

  
	
  The Guarantors

  	
  11

  
	
  Amended and Restated Facilities Agreement

  	
  12

  
	
  Conditions Precedent Documents

  	
  155

  
	
   

  	
   

  
	
  Signatories

  	
  157

  
				



 

















 


THIS DEED is
dated  14 
October 2009


 


BETWEEN:


 


(1)                                  VELTI PLC (registered in England
under number 5552480) (the Parent);


 


(2)                                  THE COMPANIES listed
in Part 1 (The Borrowers) of Schedule 1 (The Parties) as borrowers (in
this capacity, the Borrowers);


 


(3)                                  THE COMPANIES listed in Part 2 (The
Guarantors) of Schedule 1 (The Parties) as guarantors (in this capacity, the Guarantors);


 


(4)                                  ZELUS PLC (Registered in Jersey under
number 103899) as an Additional Guarantor and Obligor (Newco);


 


(5)                                  THOR LUXEMBOURG SARL as
lender (the Lender).


 


BACKGROUND:


 


(A)                              This
Deed is supplemental to and amends and restates a facilities agreement
originally dated 26 June 2009  between,
inter alios, the Parent and the Lender as amended, varied, restated,
supplemented and novated from time to time (the Facilities
Agreement).


 


(B)                                The
parties to this Deed have agreed to supplement and amend and restate the
Facilities Agreement on the terms set out below and Newco has agreed to accede
to the Facilities Agreement as a guarantor.


 


IT IS AGREED as
follows:


 


1.                                      INTERPRETATION


 


1.1                               Definitions


 


Amended Facilities Agreement means
the Facilities Agreement in its form set out in Schedule 2 (Amended and
Restated Facilities Agreement).


 


Consent
Letter means the letter dated on or around the date of
this Deed whereby the Lender has provided written confirmation of, amongst
other things, its consent to a proposed redomiciliation and reorganisation of
the Group.


 


Effective
Date means the later of (i) the date on which the  Scheme becomes
effective in accordance with its terms (including any modification, addition or
condition of the Scheme approved or imposed by the High Court of Justice of
England and Wales) and (ii) the date on which the Lender
notifies the Parent that it has received all of the documents and evidence set 


 

















 


out in Schedule 5
(Conditions Precedent Documents) in form and substance satisfactory to the
Lender.


 


Finance
Documents means the “Finance Documents” as such term is
defined in the Facilities Agreement.


 


Newco
Board Observer Side Letter means a Board Observer Side
Letter  entered into between Newco
and the Lender in a form agreed to by Newco and the Lender.


 


Newco
Documents means the Newco Security Documents and the Newco
Board Observer Side Letter.


 


Newco
Debenture means a debenture governed by English law entered
into between Newco and the Lender in a form agreed to by Newco and the Lender
and including the grant of security over the entire issued share capital of
Velti plc.


 


Newco
Irish Debenture means a  debenture governed by Irish law entered into
between Newco and the Lender in a form agreed to by Newco and the Lender.


 


Newco
Security Documents means the Newco Debenture
and the Newco Irish Debenture.


 


Obligors
means an “Obligor” as such term is defined in the Amended Facilities Agreement
and, for the avoidance, shall, with effect from but not before the Effective
Date, include Newco in its capacity as a Guarantor.


 


Scheme
means the scheme of arrangement proposed to be made
under Part 26 of the Companies Act 2006 between the Parent and its
shareholders.


 


Supplemental
Documents means this Deed, the Consent Letter and the
Newco Documents.


 


1.2                               Construction


 


(a)                                  Capitalised
terms defined in the Amended Facilities Agreement have, unless expressly
defined in this Deed, the same meaning in this Deed.


 


(b)                                 References
in the Amended Facilities Agreement to “this Agreement” or similar terms (as
applicable) shall, with effect from the Effective Date and unless the context
otherwise requires, be references to that document as amended and restated by
this Deed and words such as “herein”, “hereof”, “hereunder”, “hereafter”, “hereby”
and “hereto”, where they appear in the Amended Facilities Agreement shall be
construed accordingly.


 


1.3                               Incorporation


 


The provisions of
clauses 1.2 (Construction), 1.3 (Third party rights) and 35 (Enforcement) of
the Amended Facilities Agreement apply to this Deed as though they were set out
in full in this Deed, except that references to “this Agreement” are to be
construed as references to this Deed.


 


4

















 


1.4                               Effect
as a Deed


 


This Deed shall
take effect as a deed in respect of those parties which execute it as such,
notwithstanding that some other parties may have executed it under hand only.


 


2.                                      AMENDMENTS AND ACCESSION OF NEWCO


 


The parties to
this Deed agree for themselves and for their successors, transferees and
assigns that upon the occurrence of the Effective Date:


 


(i)                                     the
Facilities Agreement will be supplemented and amended and restated by this Deed
so that it shall be in the form set out in Schedule 2 (Amended and Restated Facilities
Agreement); and


 


(ii)                                  Newco
shall become an Additional Guarantor and be bound by the terms of the Amended
Facilities Agreement and the other Finance Documents as an Additional Guarantor
pursuant to Clause 23.4 (Additional Guarantors)
of the Amended Facilities Agreement and, in respect of such accession, this
Deed shall take effect as an Accession Deed for the purposes of the Amended
Facilities Agreement.


 


3.                                      REPRESENTATIONS AND WARRANTIES


 


3.1                               General


 


(a)                                  The
Lender has entered into this Deed in reliance on the representations and
warranties set out in this Clause 3 and each Obligor makes, on the date of this
Deed, the representations and warranties set out in this Clause 3 to the
Lender.


 


(b)                                 Each
representation and warranty (other than as expressly stated in this Clause), is
deemed to be made by each Obligor on the Effective Date by reference to the
facts and circumstances existing on the Effective Date.


 


3.2                               Status


 


(a)                                  It
is a limited liability corporation, duly incorporated and validly existing under
the law of its jurisdiction of incorporation, other than Velti US Holdings, Inc.
and AdInfuse Inc which are corporations, duly incorporated and validly existing
under the laws of their jurisdictions of incorporation and Velti SA which is a
societe anonyme, duly incorporated and validly existing under the law of its
jurisdiction of incorporation.


 


(b)                                 It
has the power to own its assets and carry on its business as it is being
conducted.


 


3.3                               Binding
Obligations


 


Subject to the
Legal Reservations:


 


(a)                                  the
obligations expressed to be assumed by it in each Transaction Document to which
it is a party are legal, valid, binding and enforceable obligations; and


 


(b)                                 (without
limiting the generality of paragraph (a) above), each Transaction Security
Document to which it is a party (including for the avoidance of doubt and from
the Effective Date, in respect of Newco, each 
Newco Security Document) creates the 


 


5

















 


security
interests which that document purports to create and those security interests
are valid and effective.


 


3.4                               Non-conflict
with other obligations


 


The entry into
and performance by it of, and the transactions contemplated by, the
Supplemental Documents do not and will not conflict with:


 


(a)                                  any
law or regulation applicable to it;


 


(b)                                 the
constitutional documents of any member of the Group; or


 


(c)                                  any
agreement or instrument binding upon it or any member of the Group or any of
its or any member of the Group’s assets or constitute a default or termination
event (however described) under any such agreement or instrument, in each case,
to an extent which could reasonably be expected to have a Material Adverse
Effect.


 


3.5                               Power
and Authority


 


(a)                                  It
has the power to enter into, perform and deliver, and has taken all necessary
action to authorise its entry into, performance and delivery of, the
Supplemental Documents and the transactions contemplated by the Supplemental
Documents.


 


(b)                                 No
limit on its powers will be exceeded as a result of the borrowing, grant of
security or giving of guarantees or indemnities contemplated by the
Supplemental Documents to which it is a party.


 


3.6                               Validity
and admissibility in evidence


 


(a)                                  All
Authorisations including but not limited to any shareholder authorisations required:


 


(i)                                     to
enable it lawfully to enter into, deliver, exercise its rights, perform and
comply with its obligations in the Supplemental Documents to which it is a
party; and


 


(ii)                                  to
make the Supplemental Documents to which it is a party admissible in evidence
in its Relevant Jurisdictions,


 


have been
obtained or effected and are in full force and effect except any Authorisation
referred to in Clause 3.10 (No filing or stamp taxes).


 


(b)                                 All
Authorisations necessary for the conduct of the business, trade and ordinary
activities of members of the Group have been obtained or effected and are in
full force and effect except, if failure to obtain or to effect those
Authorisations would be reasonably likely to have a Material Adverse Effect.


 


3.7                               Documents


 


As at the date of
their delivery and as of the Effective Date, the documents delivered to the
Lender under this Deed by or on behalf of any Obligor at or prior to the
Effective Date are genuine (or, in the case of copy documents, are true,
complete and accurate copies of originals which are genuine) and are up-to-date
and in full force and effect (or, if a copy, the original is up-to-date and in
full force and effort).


 


6






 










 


3.8                               Governing
law and enforcement


 


The choice of
governing law of the Supplemental Documents to which it is party will be
recognised and enforced in its Relevant Jurisdictions.


 


3.9                               No
filing or stamp taxes


 


Under the laws of
its Relevant Jurisdictions it is not necessary that the Supplemental Documents
be filed, recorded or enrolled with any court or other authority in that
jurisdiction or that any stamp, registration, notarial or similar Taxes or fees
be paid on or in relation to the Supplemental Documents or the transactions
contemplated by the Supplemental Documents save as specified in clause 17.9 of
the Amended Facilities Agreement.


 


3.10                        Insolvency


 


(a)                                  No:


 


(i)                                     corporate
action, legal proceeding or other procedure or step described in paragraph (a) of
Clause 21.7 (Insolvency proceedings)
of the Amended Facilities Agreement;


 


(ii)                                  creditors’
process described in Clause 21.8 (Creditors’
process) of the Amended Facilities Agreement; or


 


has been taken
or, to the knowledge of the Parent, threatened in relation to a member of the
Group.


 


(b)                                 None
of the circumstances described in clause 21.6 (Insolvency)
of the Amended Facilities Agreement applies to any member of the Group.


 


3.11                        No
default


 


(a)                                  No
Event of Default or Default is continuing or is likely to result from the entry
into, the performance of, or any transaction contemplated by, any Supplemental
Document; and


 


(b)                                 no
other event or circumstance is outstanding which constitutes a default or
termination event (however described) under any other agreement or instrument
which is binding on it or any of its Subsidiaries or to which its (or any of
its Subsidiaries’) assets are subject which has or is reasonably likely to have
a Material Adverse Effect.


 


3.12                        Newco


 


(a)                                  Zelus
plc’s administrative details for the purposes of the Facilities Agreement and/
or the Amended Facilities Agreement are as follows:


 


	
  Address:

  	
  22
  Grenville Street

  
	
   

  	
  St
  Helier

  
	
   

  	
  Jersey

  
	
   

  	
  JE4
  8PX

  
	
   

  	
   

  
	
  Fax No.:

  	
  +353
  (0)1 234 2400

  



 


7

















 


Attention:              Finance Director


 


3.13                        Ranking


 


Subject to the
Legal Reservations, once dated and delivered, the Newco Debenture and Newco
Irish Debenture have or will have first ranking priority and are not subject to
any prior ranking or pari passu
ranking Security save to the extent that such other security may be permitted
in accordance with the terms of the Amended Facilities Agreement.


 


4.                                      INCORPORATION


 


(a)                                  This
Deed is a Finance Document.


 


(b)                                 Subject
to the terms hereof, the Facilities Agreement and other Finance Documents will
remain in full force and effect, and the Amended Facilities Agreement and the
applicable provisions of this Deed will, on and from the Effective Date, be
read and construed as one document.


 


5.                                      GUARANTEE


 


On the Effective
Date, each Obligor:


 


(a)                                  confirms
its acceptance of the Amended Facilities Agreement;


 


(b)                                 agrees
that it is bound as an Obligor by the terms of the Amended Facilities
Agreement; and


 


(c)                                  confirms
that its guarantee:


 


(i)                                     subject
to the Legal Reservations, continues in full force and effect on the terms of
the Amended Facilities Agreement; and


 


(ii)                                  extends
to the obligations of the Obligors under the Finance Documents (including the
Amended Facilities Agreement),


 


in each case,
subject to any limitations set out in clause 16 (Guarantee and indemnity) of
the Amended Facilities Agreement.


 


6.                                      SECURITY


 


6.1                               Confirmation


 


On the Effective
Date, each Obligor confirms that:


 


(a)                                  any
Transaction Security extends to the obligations of the Obligors under the
Finance Documents (including the Amended Facilities Agreement) subject to any
limitations set out in the Transaction Security Documents;


 


(b)                                 the
obligations of the Obligors arising under the Amended Facilities Agreement are
included as secured liabilities (or such other similar term as is used in the
relevant Transaction Security Documents) in the Transaction Security Documents,
subject to any limitations set out in the Transaction Security Documents; and


 


8

















 


(c)                                  subject
to the Legal Reservations, the Transaction Security continues in full force and
effect on the terms of the respective Transaction Security Documents.


 


7.                                      TERMINATION


 


If the Scheme
shall not have become effective by midnight on 31 March 2010, this Deed
shall terminate automatically and shall have no further force or effect.


 


8.                                      MISCELLANEOUS


 


8.1                               Incorporation
of certain provisions


 


The provisions of
clauses 30 (Amendments and waivers) and 26 (Notices) of the Amended Facilities
Agreement shall apply to this Deed as though they were set out in this Deed in
full, but as if references in those clauses to “this Agreement” were references
to this Deed.


 


8.2                               Additional
Guarantors


 


The provisions of
this Deed shall regulate the manner in which Newco shall become an Additional
Guarantor in substitution to the provisions of Clause 23.4 (Additional
Guarantors) of the Facilities Agreement and/ or the Amended Facilities
Agreement.


 


8.3                               Satisfaction
of conditions precedent


 


The Lender (or
its solicitors) shall promptly notify the Parent when the Lender has received
all of the documents and evidence set out in Schedule 5 (Conditions Precedent
Documents) of this Deed in form and substance satisfactory to the Lender.  For the avoidance of doubt, in respect of
Newco, the documents and evidence set out in Schedule 3 (Conditions Precedent
Documents) of this Deed apply in substitution of the documents and evidence set
out in Schedule 2, Part II (Conditions Precedent to be delivered by an
Additional Obligor) of the Amended Facilities Agreement.


 


8.4                               Process
Agent


 


Newco confirms
that, with effect from the Effective Date, it appoints (in accordance with
Clause 35.2 (Service of Process) of the Facilities Agreement and/ or the
Amended Facilities Agreement) the Parent as its agent for service of process in
relation to any proceedings before the English courts in connection with any
Finance Document and the Parent by its execution of this Deed, accepts that
appointment.


 


8.5                               Counterparts


 


This Deed may be
executed in any number of counterparts, and this has the same effect as if the
signatures on the counterparts were on a single copy of this Deed.


 


8.6                               Agreement
to be bound


 


(a)                                  Failure
by one or more parties (Non-Signatory)
to execute this Deed on the date of this Deed will not invalidate the provisions
of this Deed as between the other parties who do execute this Deed.


 


9

















 


(b)                                 Any
Non-Signatory may execute this Deed (or a counterparty of this Deed) on a
subsequent date and will thereupon become bound by its provisions.


 


8.7                               Finance
Documents


 


With effect from
the date it is entered into, each of the Supplemental Documents shall be
designated Finance Documents.


 


8.8                               Overriding provision


 


Notwithstanding
any contrary provision in this Deed, Newco shall have no obligations to the
Lender until the Effective Date.


 


8.9                               Scheme becoming effective


 


The Parent shall deliver to the Lender (or to its
solicitors, Kirkland & Ellis International LLP) a copy of each of the
order of the Court sanctioning the Scheme under section 899 of the Act and the
order under section 648 of the Companies Act 2006 confirming the reduction of
capital provided for by the Scheme and the statement of capital under section
649 of the Companies Act 2006 before or promptly following their delivery to
the Registrar of Companies.


 


9.                                      GOVERNING LAW


 


This Deed and any
non-contractual obligations arising in connection with this Deed is governed by
English law.


 


IN
WITNESS WHEREOF this Deed has been executed
and delivered as a deed on the date stated at the beginning of this Deed.


 


10

















 


SCHEDULE 1


 


THE PARTIES


 


PART 1


 


THE BORROWERS


 


	
  Velti PLC

  
	
   

  
	
  Velti SA

  



 


PART 2


 


THE GUARANTORS


 


	
  Velti PLC

  
	
   

  
	
  Velti dR
  Limited

  
	
   

  
	
  Velti
  M-Telecom Limited

  
	
   

  
	
  Velti US
  Holdings Inc

  
	
   

  
	
  Velti
  Platforms and Services Limited

  
	
   

  
	
  Velti SA

  
	
   

  
	
  Ad Infuse,
  Inc

  



 


11






 


 


 










 


SCHEDULE 2


 


AMENDED AND RESTATED FACILITIES AGREEMENT


 


[Follows]


 


12

















 


Date:  Originally Dated 26 June 2009


 


FACILITIES AGREEMENT


 


as amended and restated pursuant to an amendment and
restatement agreement dated October 2009 


 


for


 


VELTI PLC


 


by


 


THOR LUXEMBOURG SARL


 


13

















 


CONTENTS


 


	
  Clause

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1.

  	
  Definitions And Interpretation

  	
   

  	
  1

  
	
  2.

  	
  The Facilities

  	
  33

  
	
  3.

  	
  Purpose

  	
  34

  
	
  4.

  	
  Conditions Of Utilisation

  	
  35

  
	
  5.

  	
  Utilisation - Loans

  	
  36

  
	
  6.

  	
  Repayment

  	
  38

  
	
  7.

  	
  Illegality, Voluntary Prepayment And Cancellation

  	
  39

  
	
  8.

  	
  Mandatory Prepayment

  	
  40

  
	
  9.

  	
  Restrictions

  	
  43

  
	
  10.

  	
  Interest

  	
  47

  
	
  11.

  	
  Interest Periods

  	
  47

  
	
  12.

  	
  Tax Gross Up And Indemnities

  	
  49

  
	
  13.

  	
  Other Indemnities

  	
  56

  
	
  14.

  	
  Mitigation By The Lenders

  	
  57

  
	
  15.

  	
  Costs And Expenses

  	
  58

  
	
  16.

  	
  Guarantee And Indemnity

  	
  60

  
	
  17.

  	
  Representations

  	
  66

  
	
  18.

  	
  Information Undertakings

  	
  76

  
	
  19.

  	
  Financial Covenants

  	
  80

  
	
  20.

  	
  General Undertakings

  	
  89

  
	
  21.

  	
  Events Of Default

  	
  102

  
	
  22.

  	
  Changes To The Lenders

  	
  109

  
	
  23.

  	
  Changes To The Obligors

  	
  109

  
	
  24.

  	
  Payment Mechanics

  	
  114

  
	
  25.

  	
  Set-Off

  	
  116

  
	
  26.

  	
  Notices

  	
  116

  
	
  27.

  	
  Calculations And Certificates

  	
  118

  
	
  28.

  	
  Partial Invalidity

  	
  119

  
	
  29.

  	
  Remedies And Waivers

  	
  119

  
	
  30.

  	
  Amendments And Waivers

  	
  119

  
	
  31.

  	
  Confidentiality

  	
  120

  
				



 


1

















 


	
  32.

  	
  Counterparts

  	
  122

  
	
  33.

  	
  Governing Law

  	
  123

  
	
  34.

  	
  Enforcement

  	
  123

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 1 THE ORIGINAL PARTIES

  	
  125

  
	
  Part I The Original Obligors

  	
  125

  
	
  Part II The Original Lender

  	
  126

  
	
   

  	
   

  
	
  SCHEDULE 2 CONDITIONS PRECEDENT

  	
  127

  
	
  Part I Conditions precedent

  	
  127

  
	
  Part II Conditions precedent required to be
  delivered by an Additional Obligor

  	
  131

  
	
  Part II Conditions precedent required to be
  delivered by an Additional Obligor

  	
  131

  
	
  SCHEDULE 3 REQUESTS

  	
  134

  
	
  Utilisation Request Loans

  	
  134

  
	
  SCHEDULE 4 FORM OF ACCESSION DEED

  	
  136

  
	
  SCHEDULE 5 FORM OF RESIGNATION LETTER

  	
  139

  
	
  SCHEDULE 6 FORM OF COMPLIANCE CERTIFICATE

  	
  141

  
	
  SCHEDULE 7 EXISTING DEBT

  	
  142

  
	
  SCHEDULE 8 MATERIAL COMPANIES

  	
  144

  
	
  SCHEDULE 9 FORM OF BUDGET

  	
  145

  
	
  SCHEDULE 10 FORM OF BORROWING BASE CERTIFICATE

  	
  146

  
	
  SCHEDULE 11 AGREED SECURITY PRINCIPLES

  	
  148

  



 


2






 


 


 


 


 










 


THIS AGREEMENT originally dated 26 June 2009
is amended and restated by an amendment and restatement agreement dated October 2009
and made between:


 


(1)                                 VELTI PLC (the “Parent”);


 


(2)                                 THE PARENT as an original borrower (the “Original Borrower”);


 


(3)                                  THE
SUBSIDIARIES of the Parent listed in Part I of Schedule 1 (The Original
Parties) as original guarantors (together with the Parent, the “Original Guarantors”); and


 


(4)                                 THE ENTITY listed in Part II of
Schedule 1 (The Original Parties) as lender (the “Original Lender”).


 


IT
IS AGREED
as follows:


 


SECTION 1


 


INTERPRETATION


 


1.                                       DEFINITIONS AND
INTERPRETATION


 


1.1                                 Definitions


 


In this
Agreement:


 


“Accession Deed” means a document substantially in the form
set out in Schedule 4 (Form of Accession
Deed).


 


“Accounting Principles” means IFRS.


 


“Accounting Reference Date” means 31
December.


 


“Additional
Borrower”
means a company which becomes a Borrower in accordance with Clause 23.2 (Additional Borrowers).


 


“Additional Guarantor” means a company which becomes a Guarantor
in accordance with Clause 23 (Changes to the Obligors).


 


“Additional Obligor” means an Additional Borrower or an
Additional Guarantor.


 


“AdInfuse Acquisition” means the acquisition
of the entire issued share capital of AdInfuse, Inc by Velti US Holdings, Inc.


 


“AdInfuse Acquisition Security” means the
Security granted by Velti US Holdings, Inc over the share capital of AdInfuse,
Inc as security for its obligations under the Velti US Loan Notes.


 


1

















 


“Affiliate” means, in relation to any person, a Subsidiary of
that person or a Holding Company of that person or any other Subsidiary of that
Holding Company.


 


“Agreed
Security Principles” means the principles set out in Schedule 11 (Agreed Security Principles).


 


“Announcement” means the announcement to be
made by the Parent concerning the Facilities, as required by the rules of
the AIM market of the London Stock Exchange.


 


“Anti-Terrorism Laws” means the Executive
Order, the Bank Secrecy Act (31 U.S.C. §§ 1956 et seq.), the USA Patriot Act,
the International Emergency Economic Powers Act (50 U.S.C. §§ 1701 et seq.),
the Trading with the Enemy Act (50 U.S.C. App. §§ 1 et seq.), any other law or
regulation administered by OFAC, and any similar law enacted in the United
States after the date of this Agreement.


 


“Arrangement Fee Shares” means the shares to
be issued by the Parent in accordance with the terms of clause 2.3 (Arrangement fee).


 


“Assignment Agreement” means an agreement in
a form agreed between the relevant assignor and assignee.


 


“Auditors” means one of Baker Tilly,
PricewaterhouseCoopers, Ernst & Young, KPMG or Deloitte &
Touche or any other firm approved in advance by the Lender (such approval not
to be unreasonably withheld or delayed).


 


“Authorisation” means an authorisation, consent, approval,
resolution, licence, exemption, filing, notarisation or registration.


 


“Availability Period” means:


 


(a)                                  in relation to each Term
Facility, the period from and including the date of this Agreement to and including
the date three Business Days after the date of this Agreement; and


 


(b)                                 in relation to the Revolving
Facility, the period from the date of this Agreement to and including the date
falling one month prior to the relevant Termination Date.


 


“Available Commitment” means, in relation to a Facility, the
Lender’s Commitment under that Facility minus (subject as set out below):


 


(a)                                  the amount of its
participation in any outstanding Utilisations under that Facility; and


 


2

















 


(b)                                 in relation to any proposed
Utilisation, the amount of its participation in any other Utilisations that are
due to be made under that Facility on or before the proposed Utilisation Date.


 


For the
purposes of calculating the Lender’s Available Commitment in relation to any
proposed Utilisation under the Revolving Facility only, the Lender’s
participation in any Revolving Facility Utilisations that are due to be repaid
or prepaid on or before the proposed Utilisation Date shall not be deducted
from the Lender’s Commitment:


 


“Available Facility” means, in relation to a Facility, the
aggregate for the time being of the Lender’s Available Commitment in respect of
that Facility.


 


“Base Currency” means US Dollars other than in relation to
the Revolving Facility for which the Base Currency is euro.


 


“Board” means the Board of Governors of the
Federal Reserve System of the United States (or any successor thereto).


 


“Board Observer Side Letter” means:


 


(a)                                  until the letter referred to
paragraph (b) below becomes effective, the board observer side letter
dated on or around the date of this Agreement between Lender and the Parent
governing the terms on which the Lender may appoint an observer to the board of
directors of the Parent; and


 


(b)                               thereafter, the board observer
side letter between Lender and the Ultimate Parent governing the terms on which
the Lender may appoint an observer to the board of directors of the Parent.


 


When the letter referred to in paragraph (b) becomes
effective, the Lender and the Parent shall cease to be bound by the terms of
the letter referred to in paragraph (a).


 


“Borrower” means an Original Borrower or an Additional
Borrower unless it has ceased to be a Borrower in accordance with Clause 23 (Changes to the Obligors).


 


“Borrowing Base Certificate” means a
borrowing base certificate in the form set out in Schedule 10 to this Agreement
or such form as may be agreed between the Lender and the Ultimate Parent but in
the event of the Lender and the Ultimate Parent not being able to agree on a
form, the form required by the Lender acting reasonably;


 


“Borrowings” has the meaning given to that
term in Clause 19.1 (Financial definitions).


 


3

















 


“Budget” means a budget delivered by the Ultimate Parent to
the Lender in respect of that period pursuant to Clause 18.4 (Budget).


 


“Business Day”
means a day (other than a Saturday or Sunday) on which banks are open for
general business in London, Athens and New York.


 


“Capital Expenditure” has the meaning given to that term in
Clause 19.1 (Financial definitions).


 


“Cash” means, at any time, cash denominated
in euro, USD or any currency used by an operating Subsidiary in the course of
its day to day business in hand or at bank and (in the latter case) credited to
an account in the name of an Obligor and to which an Obligor is alone (or
together with other Obligors) beneficially entitled and for so long as:


 


(a)                                  that cash is repayable on
demand;


 


(b)                                 repayment of that cash is not
contingent on the prior discharge of any other indebtedness of any Obligor or
of any other person whatsoever or on the satisfaction of any other condition;


 


(c)                                  there is no Security over that
cash except for Transaction Security constituted by a netting or set-off
arrangement entered into by any Obligor in the ordinary course of their banking
arrangements; and


 


(d)                                 the cash is freely and
immediately available to be applied in repayment or prepayment of the
Facilities.


 


“Cash Equivalent Investments” means at any
time:


 


(a)                                  certificates of deposit
maturing within one year after the relevant date of calculation and issued by
either (a) a bank of financial institution which has a rating for its long
term unsecured and non-credit enhanced debt obligations of A or higher by
Standard and Poor’s Rating Services or Fitch Ratings Limited or A2 or higher by
Moody’s Investor Services Limited or a comparable rating from an
internationally recognised credit agency or (b) any other bank or
financial institution approved by the Lender;


 


(b)                                 any investment in marketable
debt obligations issued or guaranteed by the government of the United States of
America, the United Kingdom, any member state of the European Economic Area or
any Participating Member State or by an instrumentality or agency of any of
them having an equivalent credit rating, maturing within one year after the
relevant date of calculation and not convertible or exchangeable to any other
security;


 


4

















 


(c)                                  commercial paper not
convertible or exchangeable to any other security:


 


(i)                                     for which a recognised trading
market exists;


 


(ii)                                  issued by an issuer
incorporated in the United States of America, the United Kingdom, any member
state of the European Economic Area or any Participating Member State;


 


(iii)                               which matures within one year
after the relevant date of calculation; and


 


(iv)                              which has a credit rating of
either A-1 or higher by Standard & Poor’s Rating Services or F1 or
higher by Fitch Ratings Ltd or P-1 or higher by Moody’s Investor Services
Limited, or, if no rating is available in respect of the commercial paper, the
issuer of which has, in respect of its long-term unsecured and non-credit
enhanced debt obligations, an equivalent rating;


 


(d)                                 sterling bills of exchange
eligible for rediscount at the Bank of England and accepted by either (a) a
bank of financial institution which has a rating for its long term unsecured
and non-credit enhanced debt obligations of A or higher by Standard and Poor’s
Rating Services or Fitch Ratings Limited or A2 or higher by Moody’s Investor
Services Limited or a comparable rating from an internationally recognised
credit agency or (b) any other bank or financial institution approved by
the Lender;


 


(e)                                  any investment in money market
funds which (i) have a credit rating of either A-1 or higher by Standard &
Poor’s Rating Services or F1 or higher by Fitch Ratings Ltd or P-1 or higher by
Moody’s Investor Services Limited, (ii) which invest substantially all
their assets in securities of the types described in paragraphs (a) to (d) above
and (iii) can be turned into cash on not more than 30 days’ notice; or


 


(f)                                    any other debt security
approved by the Lender (acting reasonably),


 


in each
case, (i) which matures not later than the Termination Date, (ii) denominated
in euro, sterling or USD and (iii) to which any Obligor is alone (or
together with other Obligors beneficially entitled at that time and which is
not issued or guaranteed by any member of the Group or subject to any Security
(other than Security arising under the Transaction Security Documents).


 


“Cashflow” has the meaning given to that term in Clause 19.1
(Financial definitions).


 


5

















 


“Change of Control” means any person or group of persons
acting in concert gains direct or indirect control of the Ultimate Parent.  For the purposes of this definition:


 


(a)                                  “control” of the Ultimate Parent means:


 


(i)                                     the power (whether by way of
ownership of shares, proxy, contract, agency or otherwise) to:


 


(A)                                             cast, or control the casting
of, more than 50% of the maximum number of votes that might be cast at a
general meeting of the Ultimate Parent; or


 


(B)                                               appoint or remove all, or the
majority, of the directors or other equivalent officers of the Ultimate Parent;
or


 


(C)                                               give directions with respect
to the operating and financial policies of the Ultimate Parent with which the
directors or other equivalent officers of the Ultimate Parent are obliged to
comply; and/or


 


(ii)                                  the holding beneficially of
more than 50% of the issued share capital of the Ultimate Parent (excluding any
part of that issued share capital that carries no right to participate beyond a
specified amount in a distribution of either profits or capital); and


 


(b)                                 “acting in concert” means, a group of persons who, pursuant to
an agreement or understanding (whether formal or informal), actively
co-operate, through the acquisition directly or indirectly of shares in the
Ultimate Parent by any of them, either directly or indirectly, to obtain or
consolidate control of the Ultimate Parent.


 


“Charged Property” means all of the assets of the Obligors
which from time to time are, or are expressed to be, the subject of the
Transaction Security.


 


“Commitment” means a Term Facility Commitment or Revolving
Facility Commitment.


 


“Compliance Certificate” means a certificate substantially in
the form set out in Schedule 6 (Form of Compliance
Certificate) and in form and substance satisfactory to the Lender
(acting reasonably).


 


“Confidential Information” means all information
relating to the Ultimate Parent, any Obligor, the Group, the Finance Documents
or a Facility in respect 


 


6

















 


of
which the Lender becomes aware or which is received by the Lender in relation
to the Finance Documents or a Facility from either:


 


(a)                                  any member of the Group or any
of its advisers, or


 


(b)                                 any other party, if the
information was obtained by the Lender directly or indirectly from any member
of the Group or any of its advisers,


 


in
whatever form, and includes information given orally and any document,
electronic file or any other way of representing or recording information which
contains or is derived or copied from such information but excludes information
that:


 


(i)                                     is or becomes public information
other than as a direct or indirect result of any breach by the Lender of Clause
31 (Confidentiality); or


 


(ii)                                  is identified in writing at
the time of delivery as non-confidential by any member of the Group or any of
its advisers; or


 


(iii)                               is known by the Lender before
the date the information is disclosed to it in accordance with paragraphs (a) or
(b) above or is lawfully obtained by the Lender after that date, from a
source which is, as far as the Lender is aware, unconnected with the Group and
which, in either case, as far as the Lender is aware, has not been obtained in
breach of, and is not otherwise subject to, any obligation of confidentiality.


 


“Confidentiality Undertaking” means a confidentiality
undertaking substantially in a recommended form of the LMA from time to time or
in any other form agreed between the Ultimate Parent and the Lender.


 


“Constitutional Documents” means an Obligor’s
certificate of incorporation, memorandum of association and articles of
association.


 


“Controlled Group” means an entity, whether
or not incorporated, which is under common control with an Obligor within the
meaning of Section 4001 of ERISA or is part of a group that includes an
Obligor and that is treated as a single employer under Section 414 of the
Internal Revenue Code. When any provision of this Agreement relates to a past
event, the term “member of the Controlled Group” includes any person that was a
member of the Controlled Group at the time of the past event.


 


“Default” means an Event of Default or any event or
circumstance specified in Clause 21 (Events of Default)
which would (with the expiry of a grace period, the giving of notice, the
making of any determination under the Finance Documents or any combination of
any of the foregoing) be an Event of Default.


 


7

















 


“Delegate” means any delegate, agent,
attorney or co-trustee appointed by the Lender.


 


“Designated Person” means a person or
entity:


 


(a)                                  listed in the annex to, or
otherwise subject to the provisions of the Executive Order;


 


(b)                                 named as a “Specially
Designated National and Blocked Person” on the most current list published by
OFAC at its official website or any replacement website or other replacement
official publication of such list; or


 


(c)                                  with which any Lender is
prohibited from dealing or otherwise engaging in any transaction by any
Anti-Terrorism Law.


 


“Downstream Loan Agreement” means the
English law intra-group loan agreement in a form that is acceptable to the
Lender and to be entered into between the Parent and Velti SA on or around the
Velti SA Accession Date whereby the Parent will make a term loan of $5,000,000
available to Velti SA, as the same may be amended, novated, restated or
supplemented from time to time and, in particular, as the same may be
transferred, assigned and/or novated to the Ultimate Parent whereby the
Ultimate Parent becomes, amongst other things, entitled to repayment of such
loan.


 


“Downstream Loan Security Documents” means
the Greek law security documentation in a form that is acceptable to the Lender
and to be entered into between the Parent and Velti SA on or around the Velti
SA Accession Date as the same may be amended, novated, restated or supplemented
from time to time and, in particular, as the same may be transferred, assigned
and/or novated to the Ultimate Parent whereby the Ultimate Parent becomes,
amongst other things, entitled to the benefit of the security or, if relevant,
any other Greek law security documentation provided by Velti SA in favour of
the Ultimate Parent as security for its obligations under the Downstream Loan
Agreement.


 


“Eligible Receivables” means all of the
receivables originated from time to time by the Obligors meeting the following
criteria:


 


(a)                                  the receivable has been
originated by the Obligor in the ordinary course of its business in accordance
with its credit and collection policies from the sale of goods and/or the
provision of services to a third party customer and the receivable has been
billed and is evidenced by an invoice;


 


(b)                                 the receivable is not subject
to any prior security and a first ranking and perfected security has been
granted by the relevant Obligor over such 


 


8

















 


receivable, its related rights and the account into which
the receivable will be paid in favour of the Lender and such security secured
the outstanding amounts under the Facilities;


 


(c)                                  the receivable is payable
within and has not been outstanding for more than a maximum period of 120 days
from the invoice date of such receivable;


 


(d)                                 the receivable arises out of a
valid and binding contract in accordance with its respective terms against the
corresponding customer and does not originate under contracts subject to public
procurement laws under which the corresponding customer under that receivable
is a government authority;


 


(e)                                  the contract under which any
obligation to make any payment in respect of the receivable complies with the
laws and regulations applicable in the jurisdiction of the governing law of
such contract;


 


(f)                                    the receivable constitutes
legal, valid and binding obligations on the corresponding customer, including,
without limitation, that of paying the amount due in respect of the receivable,
and such obligations are enforceable in accordance with their respective terms
subject only to the Legal Reservations and any other laws and regulations of
mandatory application in the event that such customer becomes insolvent and the
receivable represents a bona fide obligation of the customer to pay the stated
amount with no activity required to be performed by the applicable Obligor
other than to collect such receivable; and


 


(g)                                 to the best knowledge of
originating Obligor, it is not in default under the terms of the contract from
which the receivable arises,


 


but
excluding the Excluded Receivables.


 


“Employee Plan” means, at any time, an “employee
pension benefit plan” as defined in Section 3(2) of ERISA subject to
the provisions of Title IV of ERISA or Section 412 of the Internal Revenue
Code or Section 302 of ERISA (other than a Multiemployer Plan), then or at
any time during the previous five years maintained for, or contributed to (or
to which there is or was an obligation to contribute) on behalf of, employees
of any Obligor or ERISA Affiliate.


 


“ERISA” means the US Employee Retirement
Income Security Act of 1974 (or any successor legislation thereto) and the
regulations promulgated and rulings issued thereunder.


 


“ERISA Affiliate” means each person (as
defined in Section 3(9) of ERISA) that is a member of a Controlled
Group of any Obligor.


 


9

















 


“ERISA Event” means any of the following
events:


 


(a)                               any
reportable event, as defined in Section 4043(c) of ERISA and the
regulations promulgated under it, with respect to an Employee Plan as to which
the PBGC has not by regulation waived the requirement of Section 4043(a) of
ERISA that it be notified within thirty days of the occurrence of that event.
However, the existence with respect to any Employee Plan of an “accumulated
funding deficiency” (as defined in Section 302 of ERISA), or, on and after
the effectiveness of the Pension Act, a failure to meet the minimum funding
standard of Section 412 of the Internal Revenue Code or Section 302
of ERISA, shall be a reportable event for the purposes of this paragraph (a) regardless
of the issuance of any waiver;


 


(b)                              the
requirements of subsection (1) of Section 4043(b) of ERISA
(without regard to subsection (2) of that Section) are met with respect to
a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of an
Employee Plan and an event described in paragraph (9), (10), (11), (12) or (13)
of Section 4043(c) of ERISA is reasonably expected to occur with
respect to that Employee Plan within the following 30 days;


 


(c)                               the filing
under Section 4041(c) of ERISA of a notice of intent to terminate any
Employee Plan;


 


(d)                              the
termination of any Employee Plan under Section 4041(c) of ERISA;


 


(e)                               the
institution of proceedings under Section 4042 of ERISA by the PBGC for the
termination of, or the appointment of a trustee to administer, any Employee
Plan;


 


(f)                                 the failure
to make a required contribution to any Employee Plan that would result in the
imposition of an encumbrance under the Internal Revenue Code or ERISA;


 


(g)                              engagement
in a non-exempt prohibited transaction within the meaning of Section 4975
of the Internal Revenue Code or Section 406 of ERISA;


 


(h)                              a
determination that any Employee Plan is, or is expected to be, in at-risk
status (within the meaning of Title IV of ERISA); or


 


(i)                                  the receipt
by any Obligor or ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from any Obligor or ERISA Affiliate of any notice that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA, or, on and after the effectiveness of
the Pension Act, that a Multiemployer Plan is in endangered or critical status
(within the meaning of Section 305 of ERISA).


 


10














 


“EUR”, “euro” and “€” means the single currency unit of the
Participating Member States.


 


“Event of Default” means any event or circumstance specified
as such in Clause 21 (Events of Default).


 


“Excluded Investment” means any Investment
by any member of the Group in respect of which there exists a shareholders
agreement or similar arrangement which restricts the grant of Transaction
Security over such Investment by the relevant member of the Group and any other
Investment which:


 


(a)                                  at any time on or prior to the First
Restatement Date, the Lender and the Parent agree is to be an Excluded
Investment; and


 


(b)                                 at any time after the First Restatement
Date, the Lender and the Ultimate Parent agree is to be an Excluded Investment.


 


“Excluded
Receivables” means:


 


(a)                                  any  Eligible
Receivable which is factored, sold or assigned to any other person in connection with Permitted Financial
Indebtedness or is to be factored, sold or assigned pursuant to the terms of
any arrangement entered into with a third party in connection with
Permitted Financial Indebtedness (other than pursuant to any floating security
granted in favour of HSBC Bank plc);


 


(b)                                 any receivable falling due under any
contract against which an Obligor has raised Financial Indebtedness from time
to time (other than any contract pursuant to which floating security has been
granted in favour of HSBC Bank plc), provided such Financial Indebtedness
constitutes Permitted Financial Indebtedness; and


 


(c)                                  without limiting paragraphs (a) and (b) above, any receivable
identified by Velti SA as providing Security to any lender of Permitted
Financial Indebtedness in accordance with the arrangements surrounding any such
Permitted Financial Indebtedness.


 


“Executive Order” means the US Executive Order No. 13224
on Blocking Property and Prohibiting Transactions with Persons who Commit,
Threaten to Commit, or Support Terrorism, which came into effect on 24 September 2001,
as amended.


 


“Existing Debt” means the financial
indebtedness owing or to be owed to each Existing Debt Lender from time to time
and listed in Schedule 7 in an amount or amounts not to exceed the maximum
committed amount or amounts set out therein.


 


11

















 


“Existing Debt Lender” means the lenders of
the Existing Debt listed in Schedule 7.


 


“Existing  Unicredit
Debt” means the Existing Debt owing to Unicredit Bank or Bayerische
Hypo-und Vereinsbank AG on the date of this Agreement.


 


“Facility” means the Term Facility or the Revolving Facility.


 


“Facility Office” means the office or offices notified by the
Lender as the office or offices through which it will perform its obligations
under this Agreement.


 


“Finance Document” means this Agreement, any Accession Deed,
any Compliance Certificate, the Board Observer Side Letter, the Downstream Loan
Agreement, the HSBC Consent Letter, any UniCredit Consent Letter the
Redomiciliation Side Letter, any Resignation Letter, any Transaction Security
Document, any Utilisation Request and any other document designated in writing
as a “Finance Document” by:


 


(a)           at any time on or prior to the First
Restatement Date, the Lender and the Parent; and


 


(b)           at any time after the First
Restatement Date, the Lender and the Ultimate Parent.


 


“Financial Indebtedness” means any indebtedness
for or in respect of:


 


(a)                                  moneys borrowed and debit
balances at banks or other financial institutions;


 


(b)                                 any acceptance under any
acceptance credit or bill discounting facility (or dematerialised equivalent);


 


(c)                                  any note purchase facility or
the issue of bonds, notes, debentures, loan stock or any similar instrument;


 


(d)                                 the amount of any liability in
respect of Finance Leases;


 


(e)                                  receivables sold or discounted
(other than any receivables to the extent they are sold on a non-recourse basis
and meet any requirement for de-recognition under the Accounting Principles);


 


(f)                                    any Treasury Transaction (and,
when calculating the value of that Treasury Transaction, only the marked to
market value (or, if any actual amount is due as a result of the termination or
close-out of that Treasury Transaction, that amount) shall be taken into
account);


 


12

















 


(g)                                 any counter-indemnity
obligation in respect of a guarantee, bond, standby or documentary letter of
credit or any other instrument issued by a bank or financial institution;


 


(h)                                 any amount raised by the issue
of redeemable shares which are redeemable (other than at the option of the
issuer) before the Termination Date or are otherwise classified as borrowings
under the Accounting Principles);


 


(i)                                     any amount of any liability
under an advance or deferred purchase agreement if one of the primary reasons
behind entering into the agreement is to raise finance or to finance the
acquisition or construction of the asset or service in question;


 


(j)                                     any amount raised under any
other transaction (including any forward sale or purchase, sale and sale back
or sale and leaseback agreement) having the commercial effect of a borrowing or
otherwise classified as borrowings under the Accounting Principles; and


 


(k)                                  the amount of any liability in
respect of any guarantee for any of the items referred to in paragraphs (a) to
(j) above.


 


“Financial Quarter” has the meaning given to that term in
Clause 19.1 (Financial definitions).


 


“Financial Year” has the meaning given to
that term in Clause 19.1 (Financial
definitions).


 


“First Amendment and Restatement Agreement”
means an amendment and restatement agreement dated     October 2009 and entered into
between, amongst others, the Parent and the Lender.


 


“First Restatement Date” means the Effective
Date as such term is defined in the First Amendment and Restatement Agreement.


 


“Fraudulent Transfer Law” means any applicable US Bankruptcy
Law or any applicable US state fraudulent transfer or conveyance law.


 


“Group” means the Ultimate Parent and each of its
Subsidiaries for the time being.


 


“Group Structure Chart” means the group structure chart in
the agreed form.


 


“Guarantor” means an Original Guarantor or an Additional
Guarantor, unless it has ceased to be a Guarantor in accordance with Clause 23
(Changes to the Obligors).


 


13

















 


“Highest Lawful Rate” means the maximum lawful interest rate,
if any, that at any time or from time to time may be contracted for, charged,
or received under the laws applicable to any Obligor or the Lender which are
presently in effect or, to the extent allowed by law, under such applicable
laws which may hereafter be in effect and which allow a higher maximum non-usurious
interest rate than applicable laws now allow.


 


“Holding Account” means an account:


 


(a)                                  held in England or Wales by a
member of the Group;


 


(b)                                 identified as a Holding
Account in a letter between the Parent and the Lender prior to and on the First
Restatement Date or between the Ultimate Parent and the Lender after the First
Restatement Date; and


 


(c)                                  subject to Security in favour
of the Lender which Security is in form and substance satisfactory to the
Lender,


 


(as the same
may be redesignated, substituted or replaced from time to time).


 


“Holding Company” means, in relation to a company or
corporation, any other company or corporation in respect of which it is a
Subsidiary.


 


“HSBC Bond Loan”  means
the bond loan entered into between HSBC Bank and Velti SA as listed in the
first row of the table set out in Schedule 7.


 


“HSBC Consent Letter” means the consent
letter from HSBC Bank dated on or prior to the Velti SA Accession Date.


 


“IFRS” means international accounting
standards within the meaning of IAS Regulation 1606/2002 to the extent
applicable to the financial statements of the Parent.


 


“Intellectual Property” means:


 


(a)                                  any patents, trade marks,
service marks, designs, business names, copyrights, database rights, design
rights, domain names, moral rights, inventions, confidential information,
knowhow and other intellectual property rights and interests (which may now or
in the future subsist), whether registered or unregistered; and


 


(b)                                 the benefit of all
applications and rights to use such assets of each Obligor (which may now or in
the future subsist).


 


“Interest Period” means, in relation to a Loan, each period
determined in accordance with Clause 11 (Interest Periods)
and, in relation to an Unpaid Sum, each period determined by the Lender (acting
reasonably).


 


14

















 


“Internal Revenue Code”
means the United States Internal Revenue Code of 1986 (26 U.S.C. §§ 1 et seq.),
as amended from time to time.


 


“Investments” means:


 


(a)                                  any shares,
stocks, debentures, certificates of deposit, securities, bonds or other
securities;


 


(b)                                 all interests in
collective investment schemes;


 


(c)                                  all warrants,
options and other rights to subscribe or acquire any investment referred to in
paragraph (a) or (b) in each case whether held directly by the Lender
or by an Obligor, depositary, custodian, nominee, fiduciary, investment manager
or clearing system on its behalf


 


provided
that no such items referred to in paragraphs (a) to (c) above shall
constitute an Investment if that Investment is an Excluded Investment.


 


“IRS” means the United States Internal Revenue Service (or
any successor thereto).


 


“ITA” means the Income Tax Act 2007.


 


“Joint Venture” means any joint venture entity, whether a
company, unincorporated firm, undertaking, association, joint venture or
partnership or any other entity.


 


“Key-man Policy” means a key-man life assurance policy (in
form and substance reasonably satisfactory to the Lender and with such insurer
as the Lender may (acting reasonably) approve) taken out and maintained by the
Parent or the Ultimate Parent in respect of the death or disability or critical
illness of the following individuals if required by the Lender their
replacements from time to time and in not less than the following respective
amounts:


 


	
  Name of Individual

  	
   

  	
  Amount (€)

  	
   

  
	
  Alexandros Moukas

  	
   

  	
  1,000,000

  	
   

  
	
  Chris Kaskavelis

  	
   

  	
  1,000,000

  	
   

  
	
  Menelaos Scouloudis

  	
   

  	
  1,000,000

  	
   

  



 


“Legal Reservations” means:


 


(a)                                  the principle that equitable
remedies may be granted or refused at the discretion of a court and the
limitation of enforcement by laws relating to 


 


15

















 


insolvency, reorganisation and other laws generally
affecting the rights of creditors;


 


(b)                                 the time barring of claims
under the Limitation Acts, the possibility that an undertaking to assume
liability for or indemnify a person against non-payment of UK stamp duty may be
void and defences of set-off or counterclaim;


 


(c)                                  the possibility that the
courts may recharacterise any security purporting to be a fixed charge as a
floating charge;


 


(d)                                 similar principles, rights and
defences under the laws of any Relevant Jurisdiction;


 


(e)                                  any other matters which are or
would, as a matter of common practice, be set out as qualifications or
reservations as to matters of law of general application in any legal opinion
obtained by the Lender which relates to the Facility; and


 


(f)                                    in respect of the Structural
Intra-Group Documents, the operation of art 23a(b)/L2190/20 of Greek law;


 


(g)                                 in respect of the
representation set out at clause 17.3, any operation of art 293 of the Greek
Civil Code.


 


“Lender” means:


 


(a)                                  the Original Lender; and


 


(b)                                 any bank, financial
institution, trust, fund or other entity which has become a Party as a Lender
in accordance with Clause 22 (Changes to the Lenders),


 


which in each
case has not ceased to be a Lender in accordance with the terms of this
Agreement.


 


“Lender’s Spot Rate of Exchange” means the spot rate of
exchange of HSBC Bank plc for the purchase of the relevant currency with the
Base Currency in the London foreign exchange market at or about 11:00 a.m.
on a particular day.


 


“Limitation Acts” means the Limitation Act
1980 and the Foreign Limitation Periods Act 1984.


 


“LMA” means the Loan Market Association.


 


“Loan” means the Term Loan or a Revolving Facility Loan.


 


16

















 


“Mandatory Prepayment Account” means an interest-bearing
account:


 


(a)                                  held in England or Wales by a
Borrower;


 


(b)                                 identified in a letter between
the Parent and the Lender prior to and on the First Restatement Date or between
the Ultimate Parent and the Lender from the First Restatement Date as a
Mandatory Prepayment Account;


 


(c)                                  subject to Security in favour
of the Lender which Security is in form and substance satisfactory to the
Lender; and


 


(d)                                 from which no withdrawals may
be made by any members of the Group except as contemplated by this Agreement,


 


(as the same
may be redesignated, substituted or replaced from time to time).


 


“Margin” means:


 


(a)                                  in relation to any Term
Facility Loan 15 per cent. per annum;


 


(b)                                 in relation to the Revolving
Facility Loan 8.5 per cent. per annum;


 


(c)                                  in relation to any Unpaid Sum
relating or referable to a Facility, the rate per annum specified above for
that Facility; and


 


(d)                                 in relation to any other
Unpaid Sum, the highest rate specified above.


 


“Margin Stock” means “margin stock” or “margin security”
within the meaning of Regulation U or X.


 


“Material Adverse Effect” means in the reasonable opinion of
the Lender  a material adverse effect on:


 


(a)                                  the business, operations,
property or financial condition of the Group taken as a whole; or


 


(b)                                 the ability of an Obligor to
perform its payment obligations under the Finance Documents; or


 


(c)                                  the validity or enforceability
of, or the effectiveness or ranking of any Security granted or purporting to be
granted pursuant to any of, the Finance Documents or the rights or remedies of
the Lender under any of the Finance Documents.


 


“Material Company” means, at any time:


 


(a)                                  an Obligor; or


 


(b)                                 a wholly-owned member of the
Group that holds shares in an Obligor; or


 


17

















 


(c)                                  a Subsidiary of the Ultimate
Parent which:


 


(i)                                     is listed in Schedule 8
(Material Companies); or


 


(ii)                                  is identified in the most
recently delivered Material Companies Certificate as having gross assets, net
assets or turnover (excluding intra-group items) representing 2.5 per cent., or
more of the gross assets, net assets or turnover of the Group, calculated on a
consolidated basis,


 


save that (i) Velti US
Holdings Inc shall be a Material Company, (ii) prior to the date falling
12 Months from the date of this Agreement neither Velti Mobile Marketing
Technology LLC nor Velti Ukraine Mobile Marketing Services LLC shall be a
Material Company and (iii) Velti
Centre for Innovation SA shall not be a Material Company, notwithstanding
their satisfaction of the conditions set out at paragraphs (a), (b) or (c) on
or at any time after the date of this Agreement.


 


“Material
Companies Certificate” means each certificate delivered pursuant
to Clause  18.6(b) (Information: Miscellaneous).


 


“Maximum
Third Party Borrowing Amount”  means the amount by which the
aggregate of paragraphs (a) and (b) of the definition of “Receivables
Ratio” exceeds the aggregate of paragraphs (c) and (d) of the
definition of “Receivables Ratio”.


 


“Month” means a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next calendar
month, except that:


 


(a)                                  (subject to paragraph (c) below)
if the numerically corresponding day is not a Business Day, that period shall
end on the next Business Day in that calendar month in which that period is to
end if there is one, or if there is not, on the immediately preceding Business
Day;


 


(b)                                 if there is no numerically
corresponding day in the calendar month in which that period is to end, that
period shall end on the last Business Day in that calendar month; and


 


(c)                                  if an Interest Period begins
on the last Business Day of a calendar month, that Interest Period shall end on
the last Business Day in the calendar month in which that Interest Period is to
end.


 


The above rules will
only apply to the last Month of any period. 
“Monthly” shall be construed accordingly.


 


“Multiemployer Plan” means, at any time, a multiemployer plan
(as defined in Section 4001(a)(3) of ERISA) then or at any time
during the previous five years 


 


18

















 


maintained
for, or contributed to (or to which there is or was an obligation to
contribute) on behalf of, employees of any Obligor or ERISA Affiliate.


 


“Obligor” means a Borrower or a Guarantor.


 


“Obligors’ Agent” means the Parent prior to
and on the First Restatement Date and the Ultimate Parent from the First
Restatement Date, then appointed to act on behalf of each Obligor in relation
to the Finance Documents pursuant to Clause 2.2 (Obligors’ Agent).


 


“OFAC” means the Office of Foreign Assets Control of the
United States Department of the Treasury.


 


“Original Financial Statements” means:


 


(a)                                  in relation to the Parent, the
preliminary consolidated audited financial statements of the Parent as
delivered to the Lender in accordance with Clause 4.1 (Initial conditions precedent);


 


(b)                                 in relation to each Original
Obligor other than the Parent, its preliminary financial statements for its
Financial Year ended 31 December 2008; and


 


(c)                                  in relation to any other
Obligor, its financial statements delivered to the Lender as required by Clause
23 (Changes to the Obligors).


 


“Original Obligor” means an Original Borrower or an Original
Guarantor.


 


“Participating Member State” means any member state of the
European Communities that adopts or has adopted the euro as its lawful currency
in accordance with legislation of the European Community relating to Economic
and Monetary Union.


 


“Party” means a party to this Agreement.


 


“PBGC” means the
Pension Benefit Guaranty Corporation of the USA established pursuant to Section 4002
of ERISA (or any entity succeeding to all or any of its functions under ERISA).


 


“Pension Act” means the United States Pension Protection Act
of 2006, as amended.


 


“Permitted Disposal” means any sale, lease, licence, transfer
or other disposal which, except in the case of paragraph (b), is on arm’s
length terms:


 


(a)                                  of trading stock or cash made
by any member of the Group in the ordinary course of trading of the disposing
entity;


 


(b)                                 of any asset by a member of
the Group (the “Disposing Company”) to another
member of the Group (the “Acquiring Company”),
but if:


 


19

















 


(i)                                     the Disposing Company is an
Obligor, the Acquiring Company must also be an Obligor; and


 


(ii)                                  the Disposing Company had
given Security over the asset, the Acquiring Company must give equivalent
Security over that asset;


 


(c)                                  of assets (other than shares,
businesses, Real Property or Intellectual Property) in exchange for other
assets comparable or superior as to type, value and quality;


 


(d)                                 of obsolete or redundant
vehicles, plant and equipment for cash;


 


(e)                                  of Cash Equivalent Investments
for cash or in exchange for other Cash Equivalent Investments;


 


(f)                                    constituted by a licence of
intellectual property rights permitted by Clause 20.22 (Intellectual Property);


 


(g)                                 to a Joint Venture, to the
extent permitted by Clause 20.7 (Joint
ventures);


 


(h)                                 arising as a result of any
Permitted Security; and


 


(i)                                     of assets (other than shares)
for cash where the higher of the market value, the book value and net
consideration receivable (when aggregated with the higher of the market value,
book value and net consideration receivable for any other sale, lease, licence,
transfer or other disposal not allowed under the preceding paragraphs) does not
exceed €2,000,000 (or its equivalent) in total during the term of this
Agreement;


 


(j)                                     of any Excluded Receivables;
and


 


(k)                                  any other disposal with the
prior written consent of the Lender.


 


“Permitted Distribution”
means the payment of a dividend by any member of the Group (other than the
Ultimate Parent) so long as such payment is ultimately distributed to an
Obligor or, to the extent that such payment is not ultimately distributed to an
Obligor, it does not exceed (when aggregated with loans permitted by
sub-paragraph (e) of the definition of Permitted Loan) €1,000,000 (or its
equivalent in other currencies) in aggregate in any Financial Year.


 


“Permitted Financial Indebtedness” means Financial
Indebtedness:


 


(a)                                  arising under any Existing
Debt;


 


(b)                                arising pursuant to the Velti
US Loan Notes;


 


20

















 


(c)                                 arising under a Permitted Loan
or a Permitted Guarantee or as permitted by Clause 20.25 (Treasury Transactions);


 


(d)                                 of any person acquired by a
member of the Group after the date of this Agreement which is incurred under
arrangements in existence at the date of acquisition, but not incurred or
increased or having its maturity date extended in contemplation of, or since,
that acquisition, and outstanding only for a period of one month following the
date of acquisition;


 


(e)                                  raised pursuant to factoring
or similar arrangements provided the amount of such Financial Indebtedness does
not exceed the Maximum Third Party Borrowing Amount;


 


(f)                                    of any member of the Group in
respect of which no Security or Quasi-Security is to be granted in favour of
the party advancing the Financial Indebtedness;


 


(g)                                 under finance or capital
leases of vehicles, plant, equipment or computers, provided that the aggregate
capital value of all such items so leased under outstanding leases by members
of the Group does not exceed €1,500,000 (or its equivalent in other currencies)
at any time; and


 


(h)                                 not permitted under any of the
preceding paragraphs or as a Permitted Transaction and the outstanding
principal amount of which does not exceed €500,000 (or its equivalent in other
currencies) in aggregate for the Group at any time;


 


(i)                                     any other Financial
Indebtedness with the prior written consent of the Lender.


 


provided that the Financial Indebtedness arising or incurred under
this definition shall, save where agreed by the Lender:


 


(i)                                     not result in a breach of any
of the Financial Covenants or the Security Covenant; and


 


(ii)                                  be subordinated to the Lender’s
right of payment and rights under the Finance Documents and any guarantees by
way of an intercreditor agreement or priority deed entered into by the provider
of such Financial Indebtedness on terms acceptable to the Lender other than in
respect of:


 


(A)                              Financial Indebtedness which falls within
paragraphs (b), (e), (f) or (g) above;


 


(B)                                Existing Debt.


 


21














 


“Permitted Guarantee” means:


 


(a)                                  the endorsement of negotiable
instruments in the ordinary course of trade;


 


(b)                                 any performance or similar
bond or guarantee guaranteeing performance by a member of the Group under any
contract entered into in the ordinary course of trade;


 


(c)                                  any guarantee of a Joint
Venture to the extent permitted by Clause 20.7 (Joint ventures);


 


(d)                                 any guarantee permitted under
Clause 20.16 (Financial Indebtedness);


 


(e)                                  any guarantee given in respect
of the netting or set-off arrangements permitted pursuant to paragraph (b) of
the definition of Permitted Security;


 


(f)                                    any guarantee given in respect
of Permitted Financial Indebtedness;


 


(g)                                 the guarantee given by the
Parent in relation to Velti US Loan Notes; or


 


(h)                                 any indemnity given in the
ordinary course of the documentation of an acquisition or disposal transaction
which is not prohibited by the terms of this Agreement, which indemnity is in a
customary form and subject to customary limitations.


 


“Permitted Loan” means:


 


(a)                                  any trade credit extended by
any member of the Group to its customers on normal commercial terms and in the
ordinary course of its trading activities;


 


(b)                                 Financial Indebtedness which
is referred to in the definition of, or otherwise constitutes, Permitted Financial
Indebtedness (except under paragraph (c) of that definition);


 


(c)                                  a loan made to a Joint Venture
to the extent permitted under Clause 20.7 (Joint
ventures);


 


(d)                                 a loan made by an Obligor to
another Obligor or made by a member of the Group which is not an Obligor to
another member of the Group;


 


(e)                                  a loan made by an Obligor to
any member of the Group which is not an Obligor or to any entity in which an
Obligor holds shares, provided that the aggregate principal amount of such
loans does not (when aggregated with Permitted
Distributions) exceed €1,000,000 (or its equivalent in 


 


22

















 


other currencies) at any time (for the avoidance of
doubt any amounts payable by any member of the Group which is not an Obligor to
an Obligor at a future date in respect of services provided or products
supplied by an Obligor to a member of the Group which is not an Obligor shall
not amount to a “loan” for the purposes of this definition); and


 


(f)                                    any other arrangement with the
prior written consent of the Lender.


 


“Permitted Security” means:


 


(a)                                  any set-off or lien arising by
operation of law and in the ordinary course of trading and not as a result of
any default or omission by any member of the Group;


 


(b)                                 any netting or set-off
arrangement entered into by any member of the Group with a bank or financial
institution in the ordinary course of its banking arrangements for the purpose
of netting debit and credit balances of members of the Group but only so long
as (i) such arrangement does not permit credit balances of Obligors to be
netted or set off against debit balances of members of the Group which are not
Obligors and (ii) such arrangement does not give rise to other Security
over the assets of Obligors in support of liabilities of members of the Group
which are not Obligors;


 


(c)                                  any Security or Quasi-Security
over or affecting any asset acquired by a member of the Group after the date of
this Agreement if:


 


(i)                                     the Security or Quasi-Security
was not created in contemplation of the acquisition of that asset by a member
of the Group;


 


(ii)                                  the principal amount secured
has not been increased in contemplation of or since the acquisition of that
asset by a member of the Group; and


 


(iii)                               the Security or Quasi-Security
is removed or discharged within three months of the date of acquisition of such
asset;


 


(d)                                 any Quasi-Security arising as
a result of a disposal which is a Permitted Disposal;


 


(e)                                  any Security in existence as
at the date of this Agreement securing Permitted Financial Indebtedness;


 


(f)                                    any Security which is granted
pursuant to factoring or similar arrangements in relation to receivables which
originate under contracts 


 


23

















 


subject to public procurement laws under which the corresponding customer under
that receivable is a government authority;


 


(g)                                 any Security over cash paid into an escrow account pursuant to any
purchase price retention arrangement as part of any disposal or acquisition by
a member of the Group which is not prohibited by this Agreement;


 


(h)                                 any Security arising on any rental deposits in connection with the
occupation of leasehold premises by any member of the Group in the ordinary
course of business;


 


(i)                                     the AdInfuse Acquisition
Security;


 


(j)                                     the Downstream Loan Security
Documents; and


 


(k)                                  any other Security with the
prior written consent of the Lender.


 


“Permitted Transaction” means:


 


(a)                                  any disposal required,
Financial Indebtedness incurred, guarantee, indemnity or Security or
Quasi-Security given, or other transaction arising, under the Finance
Documents;


 


(b)                                 the solvent liquidation or
reorganisation of any member of the Group which is not an Obligor so long as
any payments or assets distributed as a result of such liquidation or
reorganisation are distributed to other members of the Group;


 


(c)                                  transactions (other than (i) any
sale, lease, license, transfer or other disposal and (ii) the granting or
creation of Security or the incurring or permitting to subsist of Financial
Indebtedness) conducted in the ordinary course of trading on arm’s length
terms;


 


(d)                                 any factoring arrangements
entered into by a member of the Group in relation to receivables which
originate under contracts subject to public procurement laws under which the
corresponding customer under that receivable is a government authority; and


 


(e)                                  any other transaction with the
prior written consent of the Lender.


 


“Quarter Date” means the last day of a
Financial Quarter.


 


“Quasi-Security” has the meaning given to
that term in Clause 20.10 (Negative pledge).


 


“Real Property” means:


 


(a)                                  any freehold, leasehold or
immovable property; and


 


24

















 


(b)                                 any buildings, fixtures,
fittings, fixed plant or machinery from time to time situated on or forming
part of that freehold, leasehold or immovable property.


 


“Receivables Ratio” means (A +B+C) : (C+D)
where:


 


(a)                                  A is the aggregate amount of invoiced or
billed Eligible Receivables originated by the Obligors from time to time;


 


(b)                                 B is the aggregate Cash held by the
Obligors in bank accounts that are subject to Transaction Security from time to
time plus an amount
equal to the sums standing to the credit of any bank account of an Obligor
incorporated in Greece;


 


(c)                                  C is the aggregate amount of invoiced or
billed receivables originated by the Obligors that is subject to any Security
other than Transaction Security; and


 


(d)                                 D is the aggregate amount of Loans
outstanding under this Agreement from time to time, the debt due to HSBC that
is the subject of the HSBC Bond Loan and all other debt or Financial
Indebtedness ranking pari passu
with or senior in priority to those Loans excluding Permitted Financial Indebtedness other than the debt due to
HSBC that is the subject of the HSBC Bond Loan.


 


“Receiver” means a receiver or receiver and manager or
administrative receiver of the whole or any part of the Charged Property.


 


“Redomiciliation” means a
procedure pursuant to which a new company is incorporated, a “cancellation”
scheme of arrangement is carried out pursuant to Part 26 of the Companies
Act 2006 and the shares in such new company are listed on the AIM market of the
London Stock Exchange (or another stock exchange).


 


“Redomiciliation Side Letter”  means the letter from the Lender to the Parent (in a form
acceptable to the Lender acting reasonably) concerning, amongst other things,
the Redomiciliation, dated on or about the date of this Agreement.


 


“Regulation D”, “Regulation T”, “Regulation U” or “Regulation X” means
Regulation D, T, U or X, as the case may be, of the Board, as from time to time
in effect and all official rulings and interpretations thereunder or thereof.


 


“Regulation D Cost” means, in relation to a Lender’s
participation in a Loan made to a Borrower (or deposits maintained by a Lender
to fund that participation), any amount certified by that Lender from time to
time to be the cost to it of complying with Regulation D (or any similar US
reserve requirement) in respect of that participation or deposit.  It is agreed that, for 


 


25

















 


purpose of
calculating any Regulation D Costs, the relevant participation or deposit shall
be deemed to constitute “Eurocurrency Liabilities” under Regulation D and to be
subject to such reserve requirements without the benefit of, or credit for,
proration, exceptions or offsets which may be available from time to time under
Regulation D.


 


“Relevant Jurisdiction” means, in relation to an Obligor:


 


(a)                                  its jurisdiction of
incorporation;


 


(b)                                 any jurisdiction where any
asset subject to or intended to be subject to the Transaction Security to be
created by it is situated;


 


(c)                                  any jurisdiction where it
conducts its business; and


 


(d)                                 the jurisdiction whose laws
govern the perfection of any of the Transaction Security Documents entered into
by it.


 


“Relevant
Parent”
means the Parent until such time as the Parent novates the Term Loan to the
Ultimate Parent when it shall mean the Ultimate Parent;


 


“Relevant Period” has the meaning given to
that term in Clause 19.1 (Financial
definitions).


 


“Repayment Date” means the Term Facility
Repayment Date, or the last day of an Interest Period for a Revolving Facility
Loan.


 


“Repeating Representations” means each of the representations
set out in Clause 17.2 (Status) to
Clause 17.7 (Governing law and enforcement),
Clause 17.11 (No default), paragraph (b) of
Clause 17.12 (No misleading information),
Clause 17.13 (Original Financial Statements), Clause 17.18 (Ranking)
to Clause 17.20 (Legal and beneficial ownership)
and Clause 17.26 (Centre of main interests
and establishments), 17.29 (Anti-Terrorism
Laws), 17.30 (US Regulation),
17.31 (Margin Regulations) and
17.32 (Employee Benefit Plans).


 


“Representative” means any delegate, agent,
manager, administrator, nominee, attorney, trustee or custodian.


 


“Resignation Letter” means a letter substantially in the form
set out in Schedule 5 (Form of Resignation
Letter).


 


“Revolving Facility” means the revolving credit facility made
available under this Agreement as described in paragraph (a)(iii) of
Clause 2.1 (The Facilities).


 


26

















 


“Revolving Facility Commitment” means the amount in euro set
out under the heading “Revolving Facility Commitment” in Part II of
Schedule 1 (The Original Lender), to the extent not
cancelled or reduced by it under this Agreement.


 


“Revolving Facility Loan” means a loan made or to be made
under the Revolving Facility or the principal amount outstanding for the time
being of that loan.


 


“Revolving Facility Utilisation” means a Revolving Facility
Loan.


 


“Rollover Loan” means one or more Revolving Facility Loans:


 


(a)                                  made or to be made on the same
day that a maturing Revolving Facility Loan is due to be repaid;


 


(b)                                 the aggregate amount of which
is equal to or less than the amount of the maturing Revolving Facility Loan;


 


(c)                                  in the same currency as the
maturing Revolving Facility Loan; and


 


(d)                                 made or to be made to the same
Borrower for the purpose of refinancing that maturing Revolving Facility Loan.


 


“Secured Parties” means the Lender and any Receiver or
Delegate.


 


“Security” means a mortgage, charge, pledge, lien or other
security interest securing any obligation of any person or any other agreement
or arrangement having a similar effect.


 


“Security Covenant” means the covenant set
out at Clause 19.2(e);


 


“Senior Management” means each and all of Alexandros Moukas,
Chris Kaskavelis or Menelaos Scouloudis and any other individual who undertakes
the roles undertaken by each of the aforementioned individuals from time to
time.


 


“Structural Intra-Group Documents” means the
Downstream Loan Agreement and the Downstream Loan Security Documents.


 


“Subsidiary” means a subsidiary undertaking within the
meaning of section 1162 of the Companies Act 2006 and, in the case of any entity incorporated in
Greece, within the meaning of paragraph 5 of art 42e of L 2190/1920.


 


“Tax” means any tax, levy, impost, duty or other charge or
withholding of a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the same).


 


“Taxes Act” means the Income and Corporation Taxes Act 1988.


 


27

















 


“Term Facility” means the term loan facility made available
under this Agreement as described in paragraph (a)(i) of Clause 2.1 (The Facilities).


 


“Term Loan” means a Term Facility Loan made or to be made
under the Term Facility or the principal amount outstanding for the time being
of that loan.


 


“Term Facility Commitment” means the amount in the Base
Currency set out under the heading “Term Facility Commitment” in Part II
of Schedule 1 (The Original Lender), to the
extent not cancelled or reduced by it under this Agreement.


 


“Term Facility Repayment Date” means the Termination Date in
respect of the Term Facility.


 


“Termination Date” means:


 


(a)                                  in relation to the Term
Facility the day falling two years and three months from the date of this
Agreement; and


 


(b)                                 in relation to the Revolving
Facility the day falling one year and nine months from the date of this
Agreement,


 


but in
each case where the relevant day is not a Business Day, the last Business Day
preceding that date.


 


“Total Commitments” means the aggregate of the Term Facility
Commitments and the Total Revolving Facility Commitments.


 


“Total Term Facility Commitments” means $10,000,000.


 


“Total Revolving Facility Commitments” means €2,750,000.


 


“Trade Instruments” means any performance
bonds, or advance payment bonds or documentary letters of credit issued in
respect of the obligations of any member of the Group arising in the ordinary
course of trading of that member of the Group.


 


“Transaction Documents” means the Finance Documents.


 


“Transaction Security” means the Security created or
expressed to be created in favour of the Lender pursuant to the Transaction
Security Documents.


 


“Transaction Security Documents” means each of the Downstream
Loan Security Documents and each of the documents listed as being a Transaction
Security Document in paragraph 2(d) of Part I of Schedule 2 (Conditions Precedent) and any document
required to be delivered to the Lender under paragraph 14 of Part II of
Schedule 2 (Conditions Precedent)
together with any other document entered into by any Obligor creating or
expressed to create any 


 


28

















 


Security over
all or any part of its assets in respect of the obligations of any of the
Obligors under any of the Finance Documents.


 


“Transfer Date” means, in relation to an assignment or
transfer, the later of:


 


(a)                                  the proposed Transfer Date
specified in the relevant Assignment Agreement; and


 


(b)                                 the date on which the Lender
executes the relevant Assignment Agreement.


 


“Treasury Transactions” means any derivative
transaction entered into in connection with protection against or benefit from
fluctuation in any rate or price.


 


“Ultimate Parent” means Zelus Plc (to be renamed
Velti Plc), registered in Jersey under number 103899.


 


“UniCredit Consent Letter” means any consent
or waiver letter in respect of the Existing UniCredit Debt that the Lender may
require (in a form that is acceptable to the Lender), by giving notice in
writing to the Parent, to be entered into between a member of the Group and
Unicredit Bank or Bayerische
Hypo-und Vereinsbank AG.


 


“Unpaid Sum” means any sum due and payable but unpaid by an
Obligor under the Finance Documents.


 


“US” and “United States” means the United States of America, its
territories and possessions.


 


“USA Patriot Act”
means the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 of
the United States, as amended.


 


“US Bankruptcy Law”
means the United States Bankruptcy Code of 1978 (Title 11 of the United States
Code) or any other United States federal or state bankruptcy, insolvency or
similar law.


 


“US Dollar,
US$, USD, $ and Dollar” each mean the lawful currency for the time
being of the United States of America.


 


“US Guarantor”
means a Guarantor that is a US Person.


 


“US Obligor”
means an Obligors that is a US Person.


 


“US Person” means a “United States Person” as defined in Section 7701(a)(30)
of the Internal Revenue Code and includes a US Person who is the sole owner of
any entity that is disregarded as being an entity separate from such owner for
US federal income tax purposes.


 


29

















 


“Utilisation” means a Loan.


 


“Utilisation Date” means the date on which a Utilisation is
made.


 


“Utilisation Request” means a notice substantially in the
relevant form set out in Schedule 3 (Utilisation  Request).


 


“VAT” means value added tax as provided for in the Value
Added Tax Act 1994 and any other tax of a similar nature.


 


“Velti SA Accession Date” means the earlier
of (i) the date that Velti SA accedes to this Agreement as an Additional
Borrower and (ii) 10 July 2009 (or such later date as may be agreed
between the Lender and the Parent).


 


“Velti SA Security” means:


 


(a)                                  Greek law Security over the
shares of Velti Centre for Innovations SA owned by Velti SA (such security to be in
respect of the obligations of Velti SA under the Finance Documents only); and


 


(b)                                 Greek law Security over Intellectual Property and
Eligible Receivables of Velti SA (such security to be in respect of the
obligations of Velti SA under the Finance Documents only).


 


“Velti SA Additional Documents” means:


 


(a)                                  the Structural Intra-Group
Documents executed by the members of the Group party to such documents;


 


(b)                                 a copy of all notices and
acknowledgements required to be sent under the Velti SA Security documents
executed by Velti SA;


 


(c)                                  all share certificates and
copies of all stock powers, transfers and stock transfer forms or equivalent
duly executed by Velti SA in blank in relation to the assets subject or
expressed to be subject to the Velti SA Security and other documents of title
to be provided under the Velti SA Security;


 


(d)                                 a legal opinion in respect of
Velti SA in relation to the due capacity and authority to enter into each
Finance Documents to which it is a party;


 


(e)                                  a certificate of the Parent
attaching copies of the  Structural Intra-Group
Loan Documents and
certifying that they are correct and complete copies and the documents  are, subject to the Legal
Reservations, in full force and effect  as at the date of the certificate.


 


“Velti US Loan Notes” means the series of
promissory notes issued by Velti US Holdings, Inc to the holders of shares of
series C preferred stock of AdInfuse, 


 


30

















 


Inc
representing part of the merger consideration in respect of the AdInfuse
Acquisition.


 


1.2                                 Construction


 


(a)                                  Unless a contrary indication appears, a
reference in this Agreement to:


 


(i)                                     any “Lender”, any “Obligor”, any “Party”, any “Secured Party” or any other person shall be construed so as
to include its successors in title, permitted assigns and permitted
transferees;


 


(ii)                                  a document in “agreed form”
is a document which is previously agreed in writing by or on behalf of the
Parent and the Lender prior to and on the First Restatement Date or by or on
behalf of the Ultimate Parent and the Lender from the First Restatement Date
or, if not so agreed, is in the form specified by the Lender;


 


(iii)                               “assets”
includes present and future properties, revenues and rights of every
description;


 


(iv)                              a “Finance Document”
or a “Transaction Document” or any other
agreement or instrument is a reference to that Finance Document or Transaction
Document or other agreement or instrument as amended, novated, supplemented,
extended or restated;


 


(v)                                 “guarantee”
means (other than in Clause 16 (Guarantee
and Indemnity)) any guarantee, letter of credit, bond, indemnity or
similar assurance against loss, or any obligation, direct or indirect, actual
or contingent, to purchase or assume any indebtedness of any person or to make
an investment in or loan to any person or to purchase assets of any person
where, in each case, such obligation is assumed in order to maintain or assist
the ability of such person to meet its indebtedness;


 


(vi)                              “indebtedness”
includes any obligation (whether incurred as principal or as surety) for the
payment or repayment of money, whether present or future, actual or contingent;


 


(vii)                           a “person”
includes any individual, firm, company, corporation, government, state or
agency of a state or any association, trust, joint venture, consortium or
partnership (whether or not having separate legal personality);


 


(viii)                        a “regulation”
includes any regulation, rule, official directive, request or guideline
(whether or not having the force of law) of any governmental, intergovernmental
or supranational body, 


 


31

















 


                                                agency, department or of any
regulatory, self-regulatory or other authority or organisation;


 


(ix)                                a provision of law is a reference to that
provision as amended or re-enacted;


 


(x)                                   a time of day is a reference to London
time; and


 


(xi)                                references to “the date of this Agreement”
shall mean 26 June 2009.


 


(b)                                 Section, Clause and Schedule headings are
for ease of reference only.


 


(c)                                  Unless a contrary indication appears, a
term used in any other Finance Document or in any notice given under or in
connection with any  Finance Document has
the same meaning in that Finance Document or notice as in this Agreement.


 


(d)                                 A Default (other than an Event of Default)
is “continuing” if it has not been remedied
or waived and an Event of Default is “continuing” if
it has not been waived.


 


1.3                                 Third party rights


 


A person who
is not a Party has no right under the Contracts (Rights of Third Parties) Act
1999 to enforce or enjoy the benefit of any term of this Agreement.


 


(a)                                  Unless expressly provided to the contrary
in a Finance Document a person who is not a Party has no right under the
Contracts (Rights of Third Parties) Act 1999 (the “Third
Parties Act”) to enforce or enjoy the benefit of any term of this
Agreement.


 


(b)                                 Notwithstanding any term of any Finance
Document, the consent of any person who is not a Party is not required to
rescind or vary this Agreement at any time.


 


32






 


 


 










 


SECTION 2


 


THE
FACILITIES


 


2.             THE FACILITIES


 


2.1           The Facilities


 


(a)           Subject to the terms of this Agreement, the
Lender makes available:


 


(i)            a Base Currency term loan facility in an
aggregate amount equal to the Total Term Facility Commitments; and


 


(ii)           a euro revolving credit facility in an
aggregate amount equal to the lesser of  (i) the
Total Revolving Facility Commitments or (ii) 55 per cent. of the Eligible
Receivables from time to time (as specified in the most recent Borrowing Base
Certificate provided to the Lender).


 


(b)           The Term Facility will be available to the
Parent and the Revolving Facility will be available to Velti SA from and
including the date it becomes an Additional Borrower.


 


2.2           Obligors’ Agent


 


(a)           Each Obligor (other than the Ultimate
Parent) by its execution of the First Amendment and Restatement Agreement or an
Accession Deed irrevocably revokes the appointment of the Parent as Obligors
Agent and appoints the Ultimate Parent to act on its behalf as its agent in
relation to the Finance Documents and irrevocably authorises:


 


(i)            the Ultimate Parent on its behalf to supply
all information concerning itself contemplated by this Agreement to the Lender
and to give all notices and instructions (including, in the case of a Borrower,
Utilisation Requests), to execute on its behalf any Accession Deed, to make
such agreements and to effect the relevant amendments, supplements and
variations capable of being given, made or effected by any Obligor
notwithstanding that they may affect the Obligor, without further reference to
or the consent of that Obligor; and


 


(ii)           the Lender to give any notice, demand or
other communication to that Obligor pursuant to the Finance Documents to the
Ultimate Parent,


 


and in each case the Obligor shall be bound as though
the Obligor itself had given the notices and instructions (including, without
limitation, any 


 


33

















 


Utilisation Requests) or executed or made the
agreements or effected the amendments, supplements or variations, or received
the relevant notice, demand or other communication.


 


(b)           Every act, omission, agreement,
undertaking, settlement, waiver, amendment, supplement, variation, notice or
other communication given or made by the Obligors’ Agent or given to the
Obligors’ Agent under any Finance Document on behalf of another Obligor or in
connection with any Finance Document (whether or not known to any other Obligor
and whether occurring before or after such other Obligor became an Obligor
under any Finance Document) shall be binding for all purposes on that Obligor
as if that Obligor had expressly made, given or concurred with it. In the event
of any conflict between any notices or other communications of the Obligors’
Agent and any other Obligor, those of the Obligors’ Agent shall prevail.


 


2.3           Arrangement Fee


 


(a)           The Borrower shall pay to the Lender or
such other persons as the Lender may specify an arrangement fee (the “Arrangement Fee”).


 


(b)           Such Arrangement Fee shall be paid on or as
soon as reasonably practicable following the first Utilisation of the Facility in accordance with Clause 20.29(f) (Conditions Subsequent) and shall be satisfied by the
allotment and issue fully paid to the Lender or such persons in such
proportions as specified prior to the date of this Agreement by the Lender of
875,000 ordinary shares in the capital of the Parent.


 


3.             PURPOSE


 


3.1           Purpose


 


(a)           The Parent shall apply all amounts borrowed
by it under the Term Facility towards:


 


(i)            making the loan to Velti SA under and in
accordance with the terms of the Downstream Loan Agreement; and


 


(ii)           to the extent not applied towards purpose (i) above
to the general corporate and working capital purposes of the Group and for any
other purpose not prohibited by the terms of this Agreement.


 


(b)           Each Borrower shall apply all amounts
borrowed by it under the Revolving Facility towards the general corporate and
working capital purposes of the Group (but not towards acquisitions of
companies, businesses or undertakings or prepayment of the Term Loan).


 


34

















 


3.2           Monitoring


 


The
Lender is not bound to monitor or verify the application of any amount borrowed
pursuant to this Agreement.


 


4.             CONDITIONS OF UTILISATION


 


4.1           Initial conditions precedent


 


The
Lender will only be obliged to comply with Clause 5.5 (Making of a
Loan) in relation to any Utilisation if on or before the Utilisation
Date for such Utilisation the Lender is satisfied that on the proposed
Utilisation Date it has received (or against first Utilisation will have
received) or waived all of the documents and other evidence listed in Part I
of Schedule 2 (Conditions precedent)
in form and substance satisfactory to the Lender (acting reasonably).  The Lender shall notify the Parent promptly
upon being so satisfied.


 


4.2           Further conditions precedent


 


Subject
to Clause 4.1, the Lender will only be obliged to comply with Clause 5.5 (Making of a Loan) if on the date of the Utilisation Request
and on the proposed Utilisation Date:


 


(a)           in the case of a Rollover Loan, no Event of
Default is continuing or would result from the proposed Loan, and in the case
of any other Utilisation, no Default is continuing or would result from the
proposed Utilisation; and


 


(b)           in relation to any Utilisation on the date
of this Agreement, all the representations and warranties in Clause 17 (Representations) or, in relation to any other Utilisation,
the Repeating Representations to be made by each Obligor are true.


 


4.3           Maximum number of Utilisations


 


The Parent
may utilise the Term Facility on one occasion only.


 


35

















 


SECTION 3


 


UTILISATION


 


5.             UTILISATION - LOANS


 


5.1           Delivery of a Utilisation Request


 


(a)           The Parent may utilise the Term Facility by
delivery to the Lender of a duly completed Utilisation Request;


 


(b)           A Borrower (or the Ultimate Parent on its
behalf) may utilise the Revolving Facility by delivery to the Lender of a
Borrowing Base Certificate at least 7 Business Days prior to the proposed
Utilisation Date and a duly completed Utilisation Request.


 


5.2           Completion of a Utilisation Request for Loans


 


(a)           Each Utilisation Request for a Loan is
irrevocable and will not be regarded as having been duly completed unless:


 


(i)            it identifies the Facility to be utilised;


 


(ii)           the proposed Utilisation Date is, in the
case of the Term Facility Loan, a Business Day within the Availability Period
applicable to the Term Facility or, in the case of a Revolving Facility Loan,
the last Business Day of a Month within the Availability Period applicable to
the Revolving Facility;


 


(iii)          the currency and amount of the Utilisation
comply with Clause 5.3 (Currency and amount).


 


(b)           Only one Loan may be requested in a
Utilisation Request.


 


5.3           Currency and amount


 


(a)           The currency specified in a Utilisation
Request must be the relevant Base Currency applicable to the relevant Facility.


 


(b)           The amount of the proposed Utilisation must
be:


 


(i)            an amount equal to $10,000,000 for the Term
Facility; or


 


(ii)           for the Revolving Facility, a minimum of
€750,000 or, if less, the Available Facility.


 


36

















 


5.4           Limitations on Utilisations


 


(a)           The Revolving Facility shall not be
utilised unless the Term Facility has been utilised.


 


(b)           The Revolving Facility may not be utilised
until the Velti SA Accession Date.


 


5.5           Making of a Loan


 


If the
conditions set out in this Agreement have been met, the Lender shall make the
requested Loan to the Borrower on the Utilisation Date.


 


5.6           Cancellation of Commitment


 


(a)           The Term Facility Commitments which, at
that time, are unutilised shall be immediately cancelled at the end of the
Availability Period for the Term Facility.


 


(b)           The Revolving Facility Commitments which,
at that time, are unutilised shall be immediately cancelled at the end of the
Availability Period for the Revolving Facility.


 


37

















 


SECTION 4


 


REPAYMENT,
PREPAYMENT AND CANCELLATION


 


6.             REPAYMENT


 


6.1           Repayment of Term Loans


 


(a)           The Relevant Parent shall repay the Term
Facility Loan in full on the Termination Date in respect of the Term Facility.


 


(b)           Neither the Parent nor, for the avoidance
of doubt, the Ultimate Parent may reborrow any part of a Term Facility which is
repaid.


 


6.2           Repayment of Revolving Facility Loans


 


Each
Borrower which has drawn a Revolving Facility Loan shall repay that Loan on the
last day of its Interest Period.


 


6.3           Effect of cancellation and prepayment on repayments


 


(a)           If the Relevant Parent cancels the whole or
any part of the Term Facility Commitment or the Revolving Facility Commitment
in accordance with Clause 7.2 (Voluntary
cancellation) or if the Term Facility Commitment or the Revolving
Facility Commitment is cancelled under clause 7.1 (Illegality) then:


 


(i)            in the case of the Term Facility
Commitment, the amount of the Term Facility Loan to be repaid on the
Termination Date will reduce by the amount cancelled;


 


(ii)           in the case of the Revolving Facility
Commitment, the amount of the Revolving Facility Loan to be repaid on the last
day of its Interest Period will reduce by the amount cancelled.


 


(b)           If the Term Loan or a Revolving Facility
Loan is prepaid in accordance with Clause 7.3 (Voluntary
prepayment of Term Loans), Clause 7.4 (Voluntary prepayment of Revolving Facility Utilisations) or
Clause 8.2 (Disposal and Insurance Proceeds)
then:


 


(i)            in the case of the Term Facility, the
amount of the Term Facility Loan to be repaid on the Termination Date will
reduce by the amount prepaid;


 


(ii)           in the case of the Revolving Facility
Commitment, the amount of the Revolving Facility Loan to be repaid on the last
day of its Interest Period will reduce by the amount prepaid.


 


38

















 


7.             ILLEGALITY, VOLUNTARY
PREPAYMENT AND CANCELLATION


 


7.1           Illegality


 


If it
becomes unlawful in any applicable jurisdiction for the Lender to perform any
of its obligations as contemplated by this Agreement or to fund, issue or
maintain any Loan:


 


(a)           that Lender, shall promptly notify the
Borrower upon becoming aware of that event whereupon the Term Facility and
Revolving Facility will be immediately cancelled;


 


(b)           each Borrower shall repay the Loans made to
it on the last day of the Interest Period for each Loan occurring after the
Lender has notified the Ultimate Parent or, if earlier, the date specified by
the Lender in the notice delivered to the Ultimate Parent (being no earlier
than the last day of any applicable grace period permitted by law).


 


7.2           Voluntary cancellation


 


(a)           The Ultimate Parent may, if it gives the
Lender not less than 10 Business Days’ (or such shorter period as the Lender
may agree) prior notice, cancel the whole or any part (being a minimum amount
of $3,000,000) of the Term Facility.


 


(b)           The Ultimate Parent may, if it gives the
Lender not less than 10 Business Days’ (or such shorter period as the Lender
may agree) prior notice, cancel the whole or any part (being a minimum amount
of €750,000) of the Revolving Facility.


 


7.3           Voluntary prepayment of Term Loans


 


The
Relevant Parent may, if it gives the Lender not less than 10 Business Days’ (or
such shorter period as the Lender may agree) prior notice, prepay the whole or
any part of the Term Loan (but, if in part, being an amount that reduces the
amount of the Term Loan by a minimum amount of $3,000,000).


 


7.4           Voluntary prepayment of Revolving Facility Utilisations


 


A
Borrower to which a Revolving Facility Utilisation has been made may, if it or
the Ultimate Parent gives the Lender not less than 10 Business Days’ (or such shorter
period as the Lender may agree) prior notice, prepay the whole or any part of a
Revolving Facility Utilisation (but if in part, being an amount that reduces
the amount of the Revolving Facility Utilisation by a minimum amount of
€750,000).


 


39

















 


8.             MANDATORY PREPAYMENT


 


8.1           Exit


 


(a)           Upon the occurrence of:


 


(i)            a Change of Control; or


 


(ii)           the sale of all or substantially all of the
assets of the Group whether in a single transaction or a series of related
transactions,


 


the
Facilities will be cancelled and all outstanding Utilisations, together with
accrued interest, and all other amounts accrued under the Finance Documents,
shall become immediately due and payable.


 


8.2           Disposal and Insurance Proceeds


 


(a)           For the purposes of this Clause 8.2 (Disposal and Insurance Proceeds), Clause
8.3 (Application of mandatory prepayments)
and Clause 8.4 (Mandatory Prepayment
Accounts and Holding Accounts):


 


“Disposal” means a sale, lease, licence, transfer, loan or other
disposal by a person of any asset, undertaking or business (whether by a
voluntary or involuntary single transaction or series of transactions).


 


“Disposal Proceeds” means the consideration receivable by any
member of the Group (including any amount receivable in repayment of
intercompany debt) for any Disposal made by any member of the Group except for
Excluded Disposal Proceeds and after deducting:


 


(i)            any reasonable expenses which are incurred
by any member of the Group with respect to that Disposal to persons who are not
members of the Group; and


 


(ii)           any Tax incurred and required to be paid by
the seller in connection with that Disposal (as reasonably determined by the
seller, on the basis of existing rates and taking account of any available credit,
deduction or allowance).


 


“Excluded Disposal Proceeds” means


 


(i)            any Disposal Proceeds (other than from a
Disposal of intellectual property or shares) which are to be reinvested in
assets required for the business of the Group if those proceeds are applied as
soon as reasonably practicable (but in any event within 12 Months after
receipt);


 


40

















 


(ii)           any Disposal Proceeds which relate to any
Disposal which is permitted pursuant to paragraphs (a), (b), (c), (e) and (h) of
the definition of Permitted Disposal; and


 


(iii)          any Disposal Proceeds arising from any
factoring or other similar arrangement constituting Permitted Financial
Indebtedness.


 


“Excluded Insurance
Proceeds” means any proceeds of an insurance claim which the
Ultimate Parent notifies the Lender are, or are to be, applied:


 


(i)            to meet a third party claim;


 


(ii)           to cover operating losses in respect of
which the relevant insurance claim was made; or


 


(iii)          in the replacement, reinstatement and/or
repair of the assets or otherwise in amelioration of the loss in respect of
which the relevant insurance claim was made,


 


in each case as soon as possible (but in any event
within 12 Months, or such longer period as the Lender may agree) after receipt.


 


“Insurance Proceeds”
means the proceeds of any insurance claim under any insurance maintained by any
member of the Group except for Excluded Insurance Proceeds and after deducting
any reasonable expenses in relation to that claim which are incurred by any member
of the Group to persons who are not members of the Group.


 


(b)           The Parent shall ensure that the Borrowers
prepay Utilisations in the following amounts at the times and in the order of
application contemplated by Clause 8.3 (Application
of mandatory prepayments):


 


(i)            the amount of Disposal Proceeds; and


 


(ii)           the amount of Insurance Proceeds in excess
of €500,000.


 


8.3           Application of mandatory prepayments


 


(a)           Subject to (e) below, a prepayment
made under Clause 8.2 (Disposal and
Insurance Proceeds) shall be applied in the order selected by the
Ultimate Parent in:


 


(i)            prepayment of the Term Loan as contemplated
in paragraphs (b) to (d) inclusive below;


 


(ii)           in cancellation of Available Commitments
under the Revolving Facility; and


 


41

















 


(iii)          in prepayment of Revolving Facility
Utilisations  and cancellation of
Revolving Facility Commitments


 


(b)           Unless the Ultimate Parent makes an
election under paragraph (c) below, the Borrowers shall apply amounts of
Disposal Proceeds or Insurance Proceeds (as appropriate) to prepay Loans,
promptly upon receipt of those proceeds.


 


(c)           The Ultimate Parent may elect that any
prepayment under Clause 8.2 (Disposal and
Insurance Proceeds) be applied in prepayment of a Loan on the last
day of the Interest Period relating to that Loan.  If the Ultimate Parent makes that election
then a proportion of the Loan equal to the amount of the relevant prepayment
will be due and payable on the last day of its Interest Period.


 


(d)           If the Ultimate Parent has made an election
under paragraph (c) above but a Default has occurred and is continuing,
that election shall no longer apply and a proportion of the Loan in respect of
which the election was made equal to the amount of the relevant prepayment
shall be immediately due and payable (unless the Lender otherwise agrees in
writing).


 


(e)           No prepayment made by any Obligor
incorporated in Greece under Clause 8.2 (Disposal
and Insurance Proceeds) shall be applied in prepayment of the Term
Loan and any prepayment that would have been made by an Obligor incorporated in
Greece shall, at the election of such Obligor, either be applied in accordance
with (a)(ii) or (a)(iii) above or be transferred to an Obligor
incorporated in England (other than the Parent) and that Obligor shall, and the
Ultimate Parent shall procure that that Obligor shall, promptly apply that
amount as contemplated above.


 


8.4           Mandatory Prepayment Accounts and Holding Accounts


 


(a)           The Ultimate Parent shall ensure that:


 


(i)            Disposal Proceeds and Insurance Proceeds in
respect of which  the Ultimate Parent has
made an election under paragraph (c) of Clause 8.3 (Application of mandatory prepayments) are
paid into a Mandatory Prepayment Account as soon as reasonably practicable
after receipt by a member of the Group;


 


(ii)           all Excluded Disposal Proceeds or Excluded
Insurance Proceeds which are to be applied towards a specific purpose (as set
out in the relevant definition) are paid into a Holding Account as soon as
reasonably practicable after receipt by a member of the Group.


 


42

















 


(b)           The Ultimate Parent and each Borrower
irrevocably authorise the Lender to apply:


 


(i)            amounts credited to the Mandatory
Prepayment Account; and


 


(ii)           amounts credited to the Holding Account
which have not been reinvested in assets required for the business of the Group
within 6 months of receipt of the relevant proceeds (or such longer time as the
Lender may agree),


 


to pay amounts due and payable under Clause 8.3 (Application of mandatory prepayments) and
otherwise under the Finance Documents. 
The Ultimate Parent and each Borrower further irrevocably authorise the
Lender to so apply amounts credited to the Holding Account whether or not 6
months have elapsed since receipt of those proceeds if a Default has occurred
and is continuing.  The Ultimate Parent
and each Borrower also irrevocably authorise the Lender to transfer any amounts
credited to the Holding Account referred to in this paragraph (b) to the
Mandatory Prepayment Account pending payment of amounts due and payable under
the Finance Documents (but if all such amounts have been paid any such amounts
remaining credited to the Mandatory Prepayment Account may (unless a Default
has occurred) be transferred back to the Holding Account).


 


(c)           The Lender acknowledges and agrees that (i) interest
shall accrue at normal commercial rates on amounts credited to those accounts
and that the account holder shall be entitled to receive such interest (which
shall be paid in accordance with the mandate relating to such account) unless a
Default is continuing and (ii) each such account is subject to the
Transaction Security.


 


9.             RESTRICTIONS


 


9.1           Notices of Cancellation or Prepayment


 


Any
notice of cancellation, prepayment, authorisation or other election given by
any Party under Clause 7 (Illegality, voluntary
prepayment and cancellation), paragraph (d) of Clause 8.3 (Application of Mandatory Prepayments) or
Clause 8.4 (Mandatory Prepayment Accounts and Holding Accounts)
shall (subject to the terms of those Clauses) be irrevocable and, unless a
contrary indication appears in this Agreement, any such notice shall specify
the date or dates upon which the relevant cancellation or prepayment is to be
made and the amount of that cancellation or prepayment.


 


43














 


9.2           Interest and other amounts


 


Any prepayment
under this Agreement shall be made together with accrued interest on the amount
prepaid.


 


9.3           No reborrowing of Term Facilities


 


No Borrower
may reborrow any part of a Term Facility which is prepaid.


 


9.4           Reborrowing of Revolving Facility


 


Unless a
contrary indication appears in this Agreement, any part of the Revolving
Facility which is prepaid may be reborrowed in accordance with the terms of
this Agreement.


 


9.5           Prepayment in accordance with Agreement


 


No Borrower
shall repay or prepay all or any part of the Utilisations or cancel all or any
part of the Commitments except at the times and in the manner expressly
provided for in this Agreement.


 


9.6           No reinstatement of Commitments


 


No amount of
the Total Commitments cancelled under this Agreement may be subsequently
reinstated.


 


9.7           Effect of Repayment and Prepayment on
Commitments


 


If all or part
of a Utilisation under a Facility is repaid or prepaid and is not available for
redrawing (other than by operation of Clause 4.2 (Further conditions precedent)), an amount of the Commitments
(equal to the amount of the Utilisation which is repaid or prepaid) in respect
of that Facility will be deemed to be cancelled on the date of repayment or
prepayment.


 


9.8           Prepayment Penalties


 


(a)           In the event of prepayment or repayment of the
Facilities arising as a result of a Change of Control under Clause 8.1(a)(i),
any prepayment of the Term Facility Loan under Clause 7.3 or upon any notice
issued under Clause 21.19 (Acceleration), the Ultimate
Parent shall, on the date of such repayment or prepayment pay to the Lender:


 


(i)            where the prepayment occurs prior to and including the
day falling three calendar months from the date of this Agreement (but if that
day is not a Business Day, the next Business Day falling after that date), a
make-whole amount equal to the Margin which would have accrued on the Term Loan
had it been drawn 


 


44

















 


in full until the Termination Date of the Term
Facility up to a maximum of €2,351,250;


 


(ii)           where the prepayment occurs from the day falling three
calendar months from the date of this Agreement (but if that day is not a
Business Day, the next Business Day falling after that date) until and including
the date falling six calendar months from the date of this Agreement (but if
that day is not a Business Day, the next Business Day falling after that date),
a make-whole amount equal to the Margin which would have accrued on the Term
Loan had it been drawn in full until the Termination Date of the Term Facility
up to a maximum of €2,250,000; or


 


(iii)          where the prepayment occurs from the day falling six
calendar months from the date of this Agreement (but if that day is not a
Business Day, the next Business Day falling after that date) until and
including the date falling nine calendar months from the date of this Agreement
(but if that day is not a Business Day, the next Business Day falling after
that date), a make-whole amount equal to the Margin which would have accrued on
the Term Loan had it been drawn in full until the Termination Date of the Term
Facility up to a maximum of €1,687,500; or


 


(iv)          where the prepayment occurs from the day falling nine
calendar months from the date of this Agreement (but if that day is not a
Business Day, the next Business Day falling after that date) until and
including the date falling twelve calendar months from the date of this
Agreement (but if that day is not a Business Day, the next Business Day falling
after that date), an amount equal to fifteen per cent. of the amount prepaid up
to a maximum of €1,125,000; or


 


(v)           where the prepayment occurs from the day falling
twelve calendar months from the date of this Agreement (but if that day is not
a Business Day, the next Business Day falling after that date) until and
including the date falling fifteen calendar months from the date of this Agreement
(but if that day is not a Business Day, the next Business Day falling after
that date), an amount equal to fifteen per cent. of the amount prepaid up to a
maximum of €1,125,000; or


 


(vi)          where the prepayment occurs from the day falling
fifteen calendar months from the date of this Agreement (but if that day is not
a Business Day, the next Business Day falling after that date) until and
including the date falling eighteen calendar 


 


45

















 


months
from the date of this Agreement (but if that day is not a Business Day, the
next Business Day falling after that date), an amount equal to fifteen per
cent. of the amount prepaid up to a maximum of €937,500; or


 


(vii)         where the prepayment occurs from the day falling
eighteen calendar months from the date of this Agreement (but if that day is
not a Business Day, the next Business Day falling after that date) until and
including the date falling twenty one calendar months from the date of this
Agreement (but if that day is not a Business Day, the next Business Day falling
after that date), an amount equal to five per cent. of the amount prepaid up to
a maximum of €375,000; or


 


(viii)        where the prepayment occurs from the day falling twenty one calendar
months from the date of this Agreement (but if that day is not a Business Day,
the next Business Day falling after that date) until and including the date
falling twenty four calendar months from the date of this Agreement (but if
that day is not a Business Day, the next Business Day falling after that date),
an amount equal to five per cent. of the amount prepaid up to a maximum of
€375,000; or


 


(ix)           where the prepayment occurs from the day falling
twenty four calendar months from the date of this Agreement (but if that day is
not a Business Day, the next Business Day falling after that date) until and
including the date falling twenty seven calendar months from the date of this
Agreement (but if that day is not a Business Day, the next Business Day falling
after that date), an amount equal to five per cent. of the amount prepaid up to
a maximum of €187,500.


 


46

















 


SECTION 5


 


COSTS OF UTILISATION


 


10.           INTEREST


 


10.1         Calculation of interest


 


The rate of
interest on each Loan for each Interest Period is the relevant Margin.


 


10.2         Payment of interest


 


The Borrower
to which a Loan has been made (or to which a Loan has been novated) shall pay
accrued interest on that Loan on the last day of each Interest Period.


 


10.3         Default interest


 


(a)           If an Obligor fails to pay any amount payable by it
under a Finance Document on its due date, interest shall accrue on the overdue
amount from the due date up to the date of actual payment (both before and
after judgment) at the relevant Margin. 
Any interest accruing under this Clause 10.3 shall be immediately
payable by the Obligor on demand by the Lender.


 


(b)           Default interest (if unpaid) arising on an overdue
amount will be compounded with the overdue amount at the end of each Interest
Period applicable to that overdue amount (or annually where the Obligor is incorporated in Greece) but will
remain immediately due and payable.


 


11.           INTEREST PERIODS


 


11.1         Interest Periods and Terms


 


(a)           Subject to paragraph (e), the relevant Interest Period
applicable to Term Facility Loans and Revolving Facility Loans will be one
Month (or such other period agreed between the Ultimate Parent and the Lender).


 


(b)           An Interest Period for a Loan shall not extend beyond
the Termination Date applicable to its Facility.


 


(c)           Each Interest Period for a Term Loan shall start on
the Utilisation Date or (if already made) on the last day of its preceding
Interest Period.


 


(d)           A Revolving Facility Loan has one Interest Period
only.


 


(e)           The first Interest Period in respect of the Term Loan
shall end on the last Business Day of the month in which it is drawn.


 


47

















 


11.2         Non-Business Days


 


If an Interest
Period would otherwise end on a day which is not a Business Day, that Interest
Period will instead end on the next Business Day in that calendar month (if
there is one) or the preceding Business Day (if there is not).


 


11.3         Highest Lawful Rate


 


Notwithstanding
any other provision herein, in no event shall the rate of interest payable by
any Borrower with respect to any Loan exceed the Highest Lawful Rate.


 


48














 


SECTION 6


 


ADDITIONAL PAYMENT
OBLIGATIONS


 


12.           TAX GROSS UP AND INDEMNITIES


 


12.1         Definitions


 


(a)           In this Agreement:


 


“Protected Party” means the Lender, if the Lender is or will
be subject to any liability or required to make any payment for or on account
of Tax in relation to a sum received or receivable (or any sum deemed for the
purposes of Tax to be received or receivable) under a Finance Document.


 


“Qualifying Lender” means:


 


(i)            the Lender, being the entity which is beneficially
entitled to interest payable in respect of an advance under a Finance Document
and is:


 


(A)          (1)           a bank (as defined for the purpose of section 879 of
the ITA) making an advance under a Finance Document; or


 


(2)           in respect of an advance made under a Finance Document
by a person that was a bank (as defined for the purpose of section 879 of the
ITA) at the time that that advance was made,


 


and
which is within the charge to United Kingdom corporation tax as respects any
payments of interest made in respect of that advance;


 


(B)           (1)           a company resident in the United Kingdom for United
Kingdom tax purposes;


 


(2)           a partnership each member of which is:


 


(a)           a company so resident in the United Kingdom; or


 


(b)           a company not so resident in the United Kingdom which
carries on a trade in the United Kingdom through a permanent establishment and
which brings into account in computing its chargeable profits (for the purposes
of section 11(2) of the 


 


49

















 


Taxes
Act) the whole of any share of interest payable in respect of that advance that
falls to it by reason of sections 114 and 115 of the Taxes Act;


 


(3)           a company not so resident in the United Kingdom which
carries on a trade in the United Kingdom through a permanent establishment and
which brings into account interest payable in respect of that advance in
computing the chargeable profits (for the purposes of section 11(2) of the
Taxes Act) of that company; or


 


(C)           a Treaty Lender; or


 


(ii)           a building society (as defined for the purposes of section
880 of the ITA) making an advance under a Finance Document.


 


“Tax Confirmation” means a confirmation by a
Lender that the person beneficially entitled to interest payable to that Lender
in respect of an advance under a Finance Document is either:


 


(i)            a company resident in the United Kingdom
for United Kingdom tax purposes;


 


(ii)           a partnership each member of which is:


 


(1)           a company so resident in the United
Kingdom; or


 


(2)           a company not so resident in the United
Kingdom which carries on a trade in the United Kingdom through a permanent
establishment and which brings into account in computing its chargeable profits
(for the purposes of section 11(2) of the Taxes Act) the whole of any
share of interest payable in respect of that advance that falls to it by reason
of sections 114 and 115 of the Taxes Act; or


 


(iii)          a company not so resident in the United
Kingdom which carries on a trade in the United Kingdom through a permanent
establishment and which brings into account interest payable in respect of that
advance in computing the chargeable profits (for the purposes of section 11(2) of
the Taxes Act) of that company.


 


“Tax Credit” means a credit against, relief or remission for,
or repayment of, any Tax.


 


50

















 


“Tax Deduction” means a deduction or withholding for or on
account of Tax from a payment under a Finance Document.


 


“Tax Payment” means either the increase in a payment made by
an Obligor to the Lender under Clause 12.2 (Tax gross-up)
or a payment under Clause 12.3 (Tax indemnity).


 


“Treaty Lender” means a Lender which is treated as a resident
of a Treaty State for the purposes of the Treaty.


 


“Treaty State” means a jurisdiction having a double taxation
agreement (a “Treaty”) with the jurisdiction of
the Borrower making a payment of interest which makes provision  for full or partial exemption from or
reduction in tax imposed by the jurisdiction of such Borrower on interest.


 


“UK Non-Bank Lender” means:


 


(a)           where a Lender becomes a Party on the day on which
this Agreement is entered into, a Lender listed in Part II of Schedule 1 (The Original Parties); and


 


(b)           where a Lender becomes a Party after the day on which
this Agreement is entered into, a Lender which gives a Tax Confirmation in the
Assignment Agreement or Transfer Certificate which it executes on becoming a
Party.


 


Unless a
contrary indication appears, in this Clause 12 a reference to “determines” or “determined”
means a determination made in the absolute discretion of the person making the
determination.


 


12.2         Tax gross-up


 


(a)           Each Obligor shall make all payments to be made by it
without any Tax Deduction, unless a Tax Deduction is required by law.


 


(b)           Save as already disclosed to the Lender or its
solicitors, Kirkland & Ellis International LLP, prior to the First
Restatement Date, the Ultimate Parent shall promptly upon becoming aware that
an Obligor must make a Tax Deduction or that there is any change in the rate or
the basis of a Tax Deduction after the date of this Agreement notify the Lender
accordingly.  Similarly, the Lender shall
notify the Ultimate Parent on becoming so aware in respect of a payment payable
to that Lender.


 


(c)           If a Tax Deduction is required by law to be made by an
Obligor, the amount of the payment due from that Obligor shall be increased to
an amount which (after making any Tax Deduction) leaves an amount equal 


 


51

















 


to the
payment which would have been due if no Tax Deduction had been required.


 


(d)           A payment shall not be increased under paragraph (c) above
by reason of a Tax Deduction on account of Tax imposed by the United Kingdom or
the jurisdiction of incorporation of the relevant Borrower, if on the date on
which the payment falls due:


 


(i)            the payment could have been made to the relevant
Lender without a Tax Deduction if the Lender had been a Qualifying Lender, but
on that date that Lender is not or has ceased to be a Qualifying Lender other
than as a result of any change after the date it became a Lender under this
Agreement in (or in the interpretation, administration, or application of) any
law or Treaty or any published practice or published concession of any relevant
taxing authority; or


 


(ii)           the relevant Lender is a Qualifying Lender solely by
virtue of paragraph (i)(B) of the definition of Qualifying Lender and:


 


(A)          an officer of H.M. Revenue & Customs has
given (and not revoked) a direction (a “Direction”)
under section 931 of the ITA (as that provision had effect on the date on which
the relevant Lender became a Party) which relates to the payment and that
Lender has received from the Obligor making the payment or from the Company a
certified copy of that Direction; and


 


(B)           the payment could have been made to the Lender without
any Tax Deduction if that Direction had not been made; or


 


(iii)          the relevant Lender is a Qualifying Lender solely by
virtue of paragraph (i)(B) of the definition of Qualifying Lender and:


 


(A)          the relevant Lender has not given a Tax Confirmation
to the Company; and


 


(B)           the payment could have been made to the Lender without
any Tax Deduction if the Lender had given a Tax Confirmation to the Company, on
the basis that the Tax Confirmation would have enabled the Company to have
formed a reasonable belief that the payment was an “excepted payment” for the
purpose of section 930 of the ITA; or


 


52

















 


(iv)          the relevant Lender is a Treaty Lender and the Obligor
making the payment is able to demonstrate that the payment could have been made
to the Lender without the Tax Deduction had that Lender complied with its
obligations under paragraph (g) below.


 


(e)           If an Obligor is required to make a Tax Deduction,
that Obligor shall make that Tax Deduction and any payment required in
connection with that Tax Deduction within the time allowed and in the minimum
amount required by law.


 


(f)            Within thirty days of making either a Tax Deduction or
any payment required in connection with that Tax Deduction, the Obligor making
that Tax Deduction shall deliver to the Lender a valid original certificate of
deduction of tax or other evidence reasonably satisfactory to the Lender that
the Tax Deduction has been made or (as applicable) any appropriate payment paid
to the relevant taxing authority.


 


(g)           A Treaty Lender and each Obligor which makes a payment
to which that Treaty Lender is entitled shall co-operate in completing any
procedural formalities necessary for that Obligor to obtain authorisation to
make that payment without a Tax Deduction.


 


(h)           A UK Non-Bank Lender shall promptly notify the
Ultimate Parent and the Lender if there is any change in the position from that
set out in the Tax Confirmation.


 


12.3         Tax indemnity


 


(a)           The Ultimate Parent shall (within three Business Days
of demand by the Lender) pay to a Protected Party an amount equal to the loss,
liability or cost which that Protected Party determines will be or has been
(directly or indirectly) suffered for or on account of Tax by that Protected
Party in respect of a Finance Document.


 


(b)           Paragraph (a) above shall not apply:


 


(i)            with respect to any Tax assessed on the Lender:


 


(A)          under the law of the jurisdiction in which the Lender
is incorporated or, if different, the jurisdiction (or jurisdictions) in which
the Lender is treated as resident for tax purposes; or


 


(B)           under the law of the jurisdiction in which the Lender’s
Facility Office is located in respect of amounts received or receivable in that
jurisdiction,


 


53

















 


if that Tax is
imposed on or calculated by reference to the net income received or receivable
(but not any sum deemed to be received or receivable) by the Lender; or


 


(ii)           to the extent a loss, liability or cost:


 


(A)          is compensated for by an increased payment under
Clause 12.2 (Tax gross-up); or


 


(B)           would have been compensated for by an increased
payment under Clause 12.2 (Tax gross-up)
but was not so compensated solely because one of the exclusions in paragraph (d) of
Clause 12.2 (Tax gross-up) applied.


 


(c)           A Protected Party making, or intending to make a claim
under paragraph (a) above shall promptly notify the Lender of the event
which will give, or has given, rise to the claim, following which the Lender
shall notify the Ultimate Parent.


 


(d)           A Protected Party shall, on receiving a payment from
an Obligor under this Clause 12.3, notify the Lender.


 


12.4         Tax Credit


 


If an Obligor
makes a Tax Payment and the Lender determines that:


 


(a)           a Tax Credit is attributable either to an increased
payment of which that Tax Payment forms part or to that Tax Payment; and


 


(b)           the Lender has obtained, utilised and retained that
Tax Credit,


 


the Lender
shall pay an amount to the Obligor which the Lender determines will leave it
(after that payment) in the same after-Tax position as it would have been in
had the Tax Payment not been required to be made by the Obligor.


 


12.5         Lender Status Confirmation


 


Each Lender
which becomes a Party to this Agreement after the date of this Agreement shall
indicate, in the Transfer Certificate or Assignment Agreement which it executes
on becoming a Party, and for the benefit of the Lender and without liability to
any Obligor, which of the following categories it falls in:


 


(a)           not a Qualifying Lender;


 


(b)           a Qualifying Lender (other than a Treaty Lender); or


 


(c)           a Treaty Lender.


 


54

















 


If a New
Lender fails to indicate its status in accordance with this Clause 12.5 then
such New Lender shall be treated for the purposes of this Agreement as if it is
not a Qualifying Lender until such time as it notifies the Lender which
category applies (and the Lender, upon receipt of such notification, shall
inform the Ultimate Parent).  For the
avoidance of doubt, a Transfer Certificate or Assignment Agreement shall not be
invalidated by any failure of a Lender to comply with this Clause 12.5.


 


12.6         Stamp taxes


 


The Ultimate
Parent shall pay and, within three Business Days of demand, indemnify each
Secured Party and Arranger against any cost, loss or liability that Secured
Party or Arranger incurs in relation to all stamp duty, registration and other
similar Taxes payable in respect of any Finance Document.


 


12.7         Value added tax


 


(a)           All consideration expressed to be payable under a
Finance Document by any Party to the Lender shall be deemed to be exclusive of
any VAT.  Subject to paragraph (b) below,
if  VAT is chargeable on any supply made
by the Lender to any Party in connection with a Finance Document, that Party
shall pay to the Lender (in addition to and at the same time as paying the consideration)
an amount equal to the amount of the VAT and the Lender shall promptly provide
a valid VAT invoice to such party.


 


(b)           If VAT is chargeable on any supply made by the Lender
(the “Supplier”) to any other
party (the “Recipient”) in
connection with a Finance Document, and any Party is required by the terms of
any Finance Document to pay an amount equal to the consideration for such
supply to the Supplier, such Party shall also pay to the Supplier (in addition
to and at the same time as paying such amount) an amount equal to the amount of
such VAT for which the Supplier reasonably determines that it is not entitled
to credit or repayment.


 


(c)           Where a Finance Document requires any Party to
reimburse the Lender for any costs or expenses, that Party shall also at the
same time pay and indemnify the Lender against all VAT incurred by the Lender
in respect of the costs or expenses to the extent that the Lender reasonably
determines that it is not entitled to credit or repayment from the relevant tax
authority in respect of the VAT.


 


55

















 


13.           OTHER INDEMNITIES


 


13.1         Currency indemnity


 


(a)           If any sum due from an Obligor under the Finance
Documents (a “Sum”), or any order, judgment or
award given or made in relation to a Sum, has to be converted from the currency
(the “First Currency”) in which that Sum is
payable into another currency (the “Second Currency”)
for the purpose of:


 


(i)            making or filing a claim or proof against that
Obligor; or


 


(ii)           obtaining or enforcing an order, judgment or award in
relation to any litigation or arbitration proceedings,


 


that Obligor
shall as an independent obligation, within three Business Days of demand,
indemnify the Lender against any cost, loss or liability arising out of or as a
result of the conversion including any discrepancy between (A) the rate of
exchange used to convert that Sum from the First Currency into the Second
Currency and (B) the rate or rates of exchange available to that person at
the time of its receipt of that Sum.


 


(b)           Each Obligor waives any right it may have in any
jurisdiction to pay any amount under the Finance Documents in a currency or
currency unit other than that in which it is expressed to be payable.


 


13.2         Other indemnities


 


(a)           The Ultimate Parent shall (or shall procure that an
Obligor will), within three Business Days of demand, indemnify the Lender
against any cost, loss or liability incurred by it as a result of:


 


(i)            the occurrence of any Event of Default;


 


(ii)           a failure by an Obligor to pay any amount due under a
Finance Document on its due date;


 


(iii)          funding, or making arrangements to fund, its
participation in a Utilisation requested by a Borrower in a Utilisation Request
but not made by reason of the operation of any one or more of the provisions of
this Agreement (other than by reason of default or negligence by the Lender
alone);


 


(iv)          a Utilisation (or part of a Utilisation) not being
prepaid in accordance with a notice of prepayment given by a Borrower or the
Ultimate Parent.


 


56

















 


(b)           The Ultimate Parent shall promptly indemnify the
Lender against any cost, loss or liability incurred by the Lender (acting
reasonably) as a result of:


 


(i)            investigating any event which it reasonably believes
is a Default; or


 


(ii)           acting or relying on any notice, request or
instruction which it reasonably believes to be genuine, correct and
appropriately authorised.


 


(c)           Each Obligor shall promptly indemnify the Lender and
every Receiver and Delegate against any cost, loss or liability incurred by any
of them as a result of:


 


(i)            the taking, holding, protection or enforcement of the
Transaction Security,


 


(ii)           the exercise of any of the rights, powers, discretions
and remedies vested in the Lender and each Receiver and Delegate by the Finance
Documents or by law; or


 


(iii)          any default by any Obligor in the performance of any
of the obligations expressed to be assumed by it in the Finance Documents.


 


14.           MITIGATION BY THE LENDERS


 


14.1         Mitigation


 


(a)           The Lender shall, in consultation with the Ultimate
Parent, take all reasonable steps to mitigate any circumstances which arise and
which would result in any amount becoming payable under or pursuant to, or
cancelled pursuant to, any of Clause 7.1 (Illegality), Clause
12 (Tax gross-up and indemnities) including
(but not limited to) transferring its rights and obligations under the Finance
Documents to another Affiliate or Facility Office.


 


(b)           Paragraph (a) above does not in any way limit the
obligations of any Obligor under the Finance Documents.


 


14.2         Limitation of liability


 


(a)           The Ultimate Parent shall promptly indemnify the
Lender for all costs and expenses reasonably incurred by the Lender as a result
of steps taken by it under Clause 14.1 (Mitigation).


 


57

















 


(b)           The Lender is not obliged to take any steps under
Clause 14.1 (Mitigation) if, in the opinion of
the Lender (acting reasonably), to do so might be prejudicial to it.


 


15.           COSTS AND EXPENSES


 


15.1         Transaction expenses


 


The Parent
shall (in the case of paragraph (a) below and Finance Documents entered
into on or before the First Restatement Date) and the Ultimate Parent shall (in
the case of Finance Documents entered into after the First Restatement Date) promptly
on demand pay the Lender the amount of all costs and expenses (including legal
fees) reasonably and properly incurred by it and by any Receiver or Delegate in
connection with the negotiation, preparation, printing, execution and
perfection of:


 


(a)           this Agreement and any other documents referred to in
this Agreement and the Transaction Security up to a maximum aggregate amount of
$250,000 (or the equivalent in other currencies); and


 


(b)           any other Finance Documents executed after the date of
this Agreement.


 


15.2         Amendment costs


 


If (a) an
Obligor requests an amendment, waiver or consent or (b) an amendment is
required pursuant to Clause 24.7 (Change of currency),
the Ultimate Parent shall, within three Business Days of demand, reimburse the
Lender for the amount of all costs and expenses (including legal fees)
reasonably and properly incurred by the Lender or by any Receiver or Delegate
in responding to, evaluating, negotiating or complying with that request or
requirement.


 


15.3         Lender’s ongoing costs


 


(a)           In the event of (i) a Default or (ii) the
Lender (acting reasonably) considering it necessary or expedient or (iii) the
Lender being requested by an Obligor to undertake duties which the Lender and
the Ultimate Parent agree to be of an exceptional nature and/or outside the
scope of the normal duties of the Lender under the Finance Documents, the
Ultimate Parent shall pay to the Lender any additional remuneration that may be
agreed between them.


 


(b)           If the Lender and the Ultimate Parent fail to agree
upon the nature of the duties or upon any additional remuneration, that dispute
shall be determined by an investment bank (acting as an expert and not as an
arbitrator) selected by the Lender and approved by the Ultimate Parent or,
failing approval, nominated (on the application of the Lender) by the 


 


58

















 


President
for the time being of the Law Society of England and Wales (the costs of the
nomination and of the investment bank being payable by the Ultimate Parent) and
the determination of any investment  bank
shall be final and binding upon the parties to this Agreement.


 


15.4         Enforcement and preservation costs


 


The Ultimate
Parent shall, within three Business Days of demand, pay to the Lender the
amount of all costs and expenses (including legal fees) incurred by it in
connection with the enforcement of or the preservation of any rights under any
Finance Document and the Transaction Security and any proceedings instituted by
or against the Lender as a consequence of taking or holding the Transaction
Security or enforcing these rights.


 


59














 


SECTION 7


 


GUARANTEE


16.           GUARANTEE AND INDEMNITY


 


16.1         Guarantee and indemnity


 


Subject to
Clauses 16.11 (Guarantee limitations) to Clause
16.12 (US guarantee limitation), each  Guarantor irrevocably and
unconditionally jointly and severally:


 


(a)           guarantees as primary obligor and not
merely as surety to the Lender, punctual performance by each other Obligor of
all that Obligor’s obligations under the Finance Documents;


 


(b)           undertakes with the Lender that whenever
another Obligor does not pay any amount when due under or in connection with
any Finance Document, that Guarantor shall immediately on demand pay that
amount as if it was the principal obligor; and


 


(c)           agrees with the Lender that if, for any
reason, any amount claimed by the Lender under this Clause 16 is not
recoverable on the basis of a guarantee, it will be liable as a principal
debtor and primary obligor to indemnify the Lender against any cost, loss or
liability it incurs as a result of an Obligor not paying any amount expressed
to be payable by it under any Finance Document on the date when it is expressed
to be due.  The amount payable by a
Guarantor under this indemnity will not exceed the amount it would have had to
pay under this Clause 16 if the amount claimed had been recoverable on the
basis of a guarantee.


 


16.2         Continuing Guarantee


 


This guarantee is a continuing guarantee and will
extend to the ultimate balance of sums payable by any Obligor under the Finance
Documents, regardless of any intermediate payment or discharge in whole or in
part or any increase of the Commitments, and this guarantee constitutes a
guarantee of payment and not of collection.


 


16.3         Reinstatement


 


If any discharge, release or arrangement (whether in
respect of the obligations of any Obligor or any security for those obligations
or otherwise) is made by the Lender in whole or in part on the faith of any
payment, security or other disposition which is avoided or must be restored in
insolvency, liquidation, administration or otherwise, without limitation, then the
liability of each 


 


60

















 


Guarantor under this Clause 16 will continue or be
reinstated as if the discharge , release or arrangement had not occurred.


 


16.4         Waiver of defences


 


The obligations of each Guarantor under this Clause 16
will not be affected by an act, omission, matter or thing which, but for this
Clause 16, would reduce, release or prejudice any of its obligations under this
Clause 16 (without limitation and whether or not known to it or the Lender)
including:


 


(a)           any time, waiver or consent granted to, or
composition with, any Obligor or other person;


 


(b)           the release of any other Obligor or any
other person under the terms of any composition or arrangement with any
creditor of any member of the Group;


 


(c)           the taking, variation, compromise,
exchange, renewal or release of, or refusal or neglect to perfect, take up or
enforce, any rights against, or security over assets of, any Obligor or other
person or any non-presentation or non-observance of any formality or other
requirement in respect of any instrument or any failure to realise the full
value of any security;


 


(d)           any incapacity or lack of power, authority
or legal personality of or dissolution or change in the members or status of an
Obligor or any other person;


 


(e)           any amendment, novation, supplement,
extension (whether of maturity or otherwise) or restatement (in each case,
however fundamental and of whatsoever nature) or replacement of a Finance
Document or any other document or security;


 


(f)            any unenforceability, illegality or
invalidity of any obligation of any person under any Finance Document or any
other document or security; or


 


(g)           any insolvency or similar proceedings.


 


16.5         Guarantor Intent


 


Without prejudice to the generality of Clause 16.4 (Waiver of Defences), each Guarantor
expressly confirms that it intends that this guarantee shall extend from time
to time to any (however fundamental) variation, increase, extension or addition
of or to any of the Finance Documents and/or any facility or amount made
available under any of the Finance Documents for the purposes of or in
connection with any of the following: business acquisitions of any nature; 


 


61

















 


increasing working capital; enabling investor
distributions to be made; carrying out restructurings; refinancing existing
facilities; refinancing any other indebtedness; making facilities available to
new borrowers; any other variation or extension of the purposes for which any
such facility or amount might be made available from time to time; and any
fees, costs and/or expenses associated with any of the foregoing.


 


16.6         Immediate recourse


 


Each Guarantor waives any right it may have of first
requiring the Lender to proceed against or enforce any other rights or security
or claim payment from any person before claiming from that Guarantor under this
Clause 16.  This waiver applies
irrespective of any law or any provision of a Finance Document to the contrary.


 


16.7         Appropriations


 


Until all amounts which may be or become payable by
the Obligors under or in connection with the Finance Documents have been
irrevocably paid in full, the Lender may:


 


(a)           refrain from applying or enforcing any
other moneys, security or rights held or received by the Lender in respect of
those amounts, or apply and enforce the same in such manner and order as it
sees fit (whether against those amounts or otherwise) and no Guarantor shall be
entitled to the benefit of the same; and


 


(b)           hold in an interest-bearing suspense
account any moneys received from any Guarantor or on account of any Guarantor’s
liability under this Clause 16.


 


16.8         Deferral of Guarantors’ rights


 


Until all amounts which may be or become payable by
the Obligors under or in connection with the Finance Documents have been
irrevocably paid in full and unless the Lender otherwise directs, no Guarantor
will exercise any rights which it may have by reason of performance by it of
its obligations under the Finance Documents or by reason of any amount being
payable, or liability arising, under this Clause 16:


 


(a)           to be indemnified by an Obligor;


 


(b)           to claim any contribution from any other
guarantor of any Obligor’s obligations under the Finance Documents;


 


(c)           to take the benefit (in whole or in part
and whether by way of subrogation or otherwise) of any rights of the Lender
under the Finance 


 


62

















 


Documents or
of any other guarantee or security taken pursuant to, or in connection with,
the Finance Documents by the Lender;


 


(d)           to bring legal or other proceedings for an
order requiring any Obligor to make any payment, or perform any obligation, in
respect of which any Guarantor has given a guarantee, undertaking or indemnity
under Clause 16.1 (Guarantee and Indemnity);


 


(e)           to exercise any right of set-off against
any Obligor; and/or


 


(f)            to claim or prove as a creditor of any
Obligor in competition with the Lender.


 


If a Guarantor
receives any benefit, payment or distribution in relation to such rights it
shall hold that benefit, payment or distribution to the extent necessary to
enable all amounts which may be or become payable to the Lender by the Obligors
under or in connection with the Finance Documents to be repaid in full on trust
for the Lender and shall promptly pay or transfer the same to the Lender for
application in accordance with Clause 24 (Payment
mechanics).


 


16.9         Release of Guarantors’ right of contribution


 


If any Guarantor (a “Retiring
Guarantor”) ceases to be a Guarantor in accordance with the terms of
the Finance Documents for the purpose of any sale or other disposal of that
Retiring Guarantor then on the date such Retiring Guarantor ceases to be a
Guarantor:


 


(a)           that Retiring Guarantor is released by each
other Guarantor from any liability (whether past, present or future and whether
actual or contingent) to make a contribution to any other Guarantor arising by
reason of the performance by any other Guarantor of its obligations under the
Finance Documents; and


 


(b)           each other Guarantor waives any rights it
may have by reason of the performance of its obligations under the Finance
Documents to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Lender under any Finance
Document or of any other security taken pursuant to, or in connection with, any
Finance Document where such rights or security are granted by or in relation to
the assets of the Retiring Guarantor.


 


16.10       Additional security


 


This guarantee is in addition to and is not in any way
prejudiced by any other guarantee or security now or subsequently held by the
Lender.


 


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16.11       Guarantee Limitations


 


This guarantee does not apply to any liability to the
extent that it would result in this guarantee constituting unlawful financial
assistance within the meaning of section 151 of the Companies Act 1985 or any
equivalent and applicable provisions under the laws of the jurisdiction of
incorporation of the relevant Guarantor and, with respect to any Additional
Guarantor, is subject to any limitations set out in the Accession Deed
applicable to such Additional Guarantor.


 


16.12       US Guarantee Limitations


 


(a)           Each US
Guarantor acknowledges that it will receive valuable direct or indirect
benefits as a result of the transactions financed by the Finance Documents.


 


(b)           Each US
Guarantor represents, warrants and agrees that:


 


(i)  the
aggregate amount of its debts and liabilities, subordinated, contingent or
otherwise (including its obligations under the Finance Documents as limited by
paragraph (c) below), is not greater than the aggregate value (being the
lesser of fair valuation and present fair saleable value) of its assets;


 


(ii)  its
capital is not unreasonably small to carry on its business as it is being
conducted;


 


(iii)  it has
not incurred and does not intend to incur debts beyond its ability to pay as
they mature; and


 


(iv)  it has
not made a transfer or incurred any obligation under any Finance Document with
the intent to hinder, delay or defraud any of its present or future creditors.


 


(c)           Notwithstanding
anything to the contrary contained herein or in any other Finance Document, the
Lender agrees that the maximum liability of each US Guarantor under Clause 16  (Guarantee and indemnity)
shall in no event exceed an amount equal to the greatest amount that would not
render such US Guarantor’s obligations hereunder and under the other Finance
Documents subject to avoidance under US Bankruptcy Law or to being set aside,
avoided or annulled under any Fraudulent Transfer Law, in each case after
giving effect (i) to all other liabilities of such US Guarantor,
contingent or otherwise, that are relevant under such Fraudulent Transfer Law
(specifically excluding, however, any liabilities of such US Guarantor in
respect of intercompany indebtedness to any Borrower to the extent that such
Financial Indebtedness would be discharged in an amount equal to the amount
paid by such US Guarantor 


 


64

















 


hereunder)
and (ii) to the value as assets of such US Guarantor (as determined under
the applicable provisions of such Fraudulent Transfer Law) of any rights to
subrogation, contribution, reimbursement, indemnity or similar rights held by
such US Guarantor pursuant to (A) applicable law, or (B) any other
agreement providing for an equitable allocation among such US Guarantor and the
Borrowers and other Guarantors of obligations arising under this Agreement or
other guarantees of such obligations by such parties.


 


16.13       Jersey Guarantor Provisions


 


Each
Guarantor irrevocably and unconditionally abandons and waives any right which
it may have at any time under the existing or future laws of Jersey:


 


(a)           whether by virtue of the droit de discussion or otherwise to require that recourse be
had by any Lender to the assets of any other Guarantor or any other person
before any claim is enforced against that Guarantor in respect of the
obligations assumed by it under any of the Finance Documents or any other
document;


 


(b)           whether by virtue of the droit de division or otherwise to require that any liability
under any of the Finance Documents or any other document be divided or
apportioned with any other Guarantor or any other person or reduced in any
manner whatsoever; and


 


(c)           to require that any other
Guarantor and/or any other person be joined in, or otherwise made a party to,
any proceedings brought against it in respect of its obligations under this
Agreement, any other Finance Document or any other document,


 


and each Guarantor irrevocably agrees to be bound by its obligations
under this Agreement irrespective of whether or not the formalities required by
the existing or future laws of Jersey relating to the rights or obligations of
sureties shall or shall not have been complied with or observed.


 


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SECTION 8


 


REPRESENTATIONS,
UNDERTAKINGS AND EVENTS OF DEFAULT


 


17.           REPRESENTATIONS


 


17.1         General


 


Each Obligor makes the representations and
warranties set out in this Clause 17 to the Lender.


 


17.2         Status


 


(a)           It is a limited liability corporation, duly incorporated and
validly existing under the law of its jurisdiction of incorporation, other than
Velti US Holdings, Inc. and AdInfuse, Inc which are each corporations, duly
incorporated and validly existing under the law of their jurisdiction of
incorporation and
Velti SA which is a société anonyme.


 


(b)           It has the power to own its assets and
carry on its business as it is being conducted.


 


17.3         Binding obligations


 


Subject to the Legal Reservations:


 


(a)           the obligations expressed to be assumed by
it in each Transaction Document to which it is a party are legal, valid,
binding and enforceable obligations; and


 


(b)           (without limiting the generality of
paragraph (a) above), each Transaction Security Document to which it is a
party creates the security interests which that Transaction Security Document
purports to create and those security interests are valid and effective.


 


17.4         Non-conflict with other obligations


 


The entry into and performance by it of, and the
transactions contemplated by, the Finance Documents and the granting of the
Transaction Security  pursuant to the
Agreed Security Principles does not and will not conflict with:


 


(a)           any law or regulation or rule applicable
to it;


 


(b)           the constitutional documents of any member
of the Group; or


 


(c)           any agreement or instrument binding upon it
or any member of the Group or any of its or any member of the Group’s assets or
constitute a default or termination event (however described) under any such 


 


66

















 


agreement or
instrument where such breach or default would be reasonably likely to have a
Material Adverse Effect.


 


17.5         Power and authority


 


(a)           It has the power to enter into, perform and
deliver, and has taken all necessary action to authorise its entry into,
performance and delivery of, the Finance Documents to which it is or will be a
party and the transactions contemplated by those Finance Documents.


 


(b)           No limit on its powers will be exceeded as
a result of the borrowing, grant of security or giving of guarantees or
indemnities contemplated by the Finance Documents to which it is a party.


 


17.6         Validity and admissibility in evidence


 


(a)           All Authorisations including but not
limited to any shareholder authorisations required:


 


(i)            to enable it lawfully to enter into,
deliver, exercise its rights, perform and comply with its obligations in the
Finance Documents to which it is a party; and


 


(ii)           to make the Finance Documents to which it
is a party admissible in evidence in its Relevant Jurisdictions,


 


have been
obtained or effected and are in full force and effect except any Authorisation
referred to in paragraph (b) of Clause 17.9 (No filing or
stamp taxes).


 


(b)           All Authorisations necessary for the
conduct of the business, trade and ordinary activities of members of the Group
have been obtained or effected and are in full force and effect if failure to
obtain or to effect those Authorisations would be reasonably likely to have a
Material Adverse Effect.


 


17.7         Governing law and enforcement


 


(a)           Save to the extent qualified in any legal
opinion delivered to the Lender pursuant to Schedule 2 (Conditions Precedent)
and subject to the Legal Reservations, the choice of governing law of the
Finance Documents will be recognised and enforced in its Relevant
Jurisdictions.


 


(b)           Save to the extent qualified in any legal
opinion delivered to the Lender pursuant to Schedule 2 (Conditions Precedent)
and subject to the Legal Reservations, any judgment obtained in relation to a
Finance Document in the jurisdiction of the governing law of that Finance
Document will be 


 


67

















 


recognised and
enforced in its Relevant Jurisdictions except to the extent that any Finance
Document which is governed by the law of one jurisdiction purports to create
security over an asset of an Obligor which is situate in another jurisdiction.


 


17.8         Insolvency


 


No:


 


(a)           corporate action, legal proceeding or other
procedure or step described in paragraph (a) of Clause 21.7 (Insolvency proceedings); or


 


(b)           creditors’ process described in Clause 21.8
(Creditors’ process),


 


has been taken or, to the knowledge of the Ultimate
Parent, threatened in relation to an Obligor and none of the circumstances
described in Clause 21.6 (Insolvency)
applies to an Obligor.


 


17.9         No filing or stamp taxes


 


Under the laws of its Relevant Jurisdiction it is not
necessary that the Finance Documents be filed, recorded or enrolled with any
court or other authority in that jurisdiction or that any stamp, registration,
notarial or similar Taxes or fees be paid on or in relation to the Finance
Documents or the transactions contemplated by the Finance Documents except
(where relevant):


 


(a)           registration of particulars of Transaction
Security at the Companies Registration Office in England and Wales under
section 395 of the Companies Act 1985 (or equivalent under Companies Act 2006)
and payment of associated fees;


 


(b)           registration of particulars of
Transaction Security at the Trade Marks Registry at the Patent Office in
England and Wales and payment of associated fees;


 


(c)           registration of particulars of Transaction Security with the appropriate
state office of the state where the entity which is the grantor of the Security
is incorporated or organised and payment of associated fees;


 


(d)           registration
of particulars of United States copyrights which comprise Transaction Security
at the United States Copyright Office and payment of associated fees; and


 


(e)           registering
of particulars of United States patents and trademarks which comprise
Transaction Security at the United States Patent and Trademark Office and
payment of associated fees;


 


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(f)            registration of particulars, filings,
announcements or other notifications in respect of Transaction Security and/ or
Finance Documents at the Registrar of Companies in Cyprus and payment of
associated fees and taxes;


 


(g)           registration of particulars, filings,
announcements or other notifications in respect of Transaction Security and/ or
Finance Documents in Greece and payment of associated fees and taxes;


 


(h)           registration of particulars, filings,
announcements or other notifications in respect of Transaction Security and/ or
Finance Documents in Jersey and/or Ireland and payment of associated fees and
taxes,


 


which registrations, filings, taxes and fees will be
made and paid by the Lender promptly after the date of the relevant Finance
Document (other than those referred to in paragraphs (b) to (h) inclusive)
(such taxes and fees to be reimbursed promptly by the Ultimate Parent).


 


17.10       Deduction of Tax


 


Save in
respect of any Tax Deduction (as defined in Clause 12.1 (Definitions)),
it is not
required to make any deduction for or on account of Tax from any payment it may
make under any Finance Document to the Lender.


 


17.11       No default


 


(a)           No Event of Default and, on the date of
this Agreement, no Default is continuing or is reasonably likely to result from
the making of any Utilisation or the entry into, the performance of, or any
transaction contemplated by, any Transaction Document.


 


(b)           No other event or circumstance is
outstanding which constitutes a default or termination event (however
described) under any other agreement or instrument which is binding on it or
any of its Subsidiaries or to which its (or any of its Subsidiaries’) assets
are subject which has or is reasonably likely to have a Material Adverse
Effect.


 


17.12       No misleading information


 


Save as disclosed in writing to the Lender prior to
the date of this Agreement:


 


(a)           all written factual material information
provided to the Lender by or on behalf of the Parent  in connection with the Group on or before the
date of this Agreement and not superseded before that date is accurate and not
misleading in any material respect and all projections provided to the Lender
on or before the date of this Agreement have been prepared in


 


69














 


good
faith on the basis of assumptions which were reasonable at the time at which
they were prepared and supplied; and


 


(b)           all other written factual information provided by any
member of the Group (including its advisers) to the Lender was true, complete
and accurate in all material respects as at the date it was provided and is not
misleading in any respect.


 


17.13       Original Financial Statements


 


(a)           Its Original Financial Statements were prepared in
accordance with the Accounting Principles consistently applied unless expressly
disclosed to the Lender in writing to the contrary.


 


(b)           Its unaudited consolidated Original Financial
Statements fairly represent its financial condition and results of operations
for the relevant period unless expressly disclosed to the Lender in writing to
the contrary prior to the date of this Agreement.


 


(c)           Its Original Financial Statements give a true and fair
view of its financial condition and results of operations during the relevant
financial year.


 


(d)           [Intentionally left blank]


 


(e)           Save to the extent required by IFRS and specifically
disclosed to the Lender, the Original Financial Statements of the Parent do not
consolidate the results, assets or liabilities of any person or business which
does not form part of the Group.


 


(f)            Its most recent financial statements delivered
pursuant to Clause 18.1 (Financial
Statements):


 


(i)            have been prepared in accordance with the Accounting
Principles as applied to the Original Financial Statements; and


 


(ii)           give a true and fair view of (if audited) or fairly
present (if unaudited) its consolidated financial condition as at the end of,
and consolidated results of operations for, the period to which they relate.


 


(g)           The budgets and forecasts supplied under this
Agreement were arrived at after careful consideration and have been prepared in
good faith on the basis of recent historical information and on the basis of
assumptions which were reasonable as at the date they were prepared and
supplied.


 


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17.14       No proceedings pending or threatened


 


No litigation,
arbitration or administrative proceedings or investigations of, or before, any
court, arbitral body or agency which, if adversely determined, are reasonably
likely to have a Material Adverse Effect have (to the best of its knowledge and
belief (having made due and careful enquiry)) been started or threatened
against it or any of its Subsidiaries.


 


17.15       No breach of laws


 


It has not
(and none of its Subsidiaries has) breached any law or regulation provided that (i) the
matters disclosed to the Lender either in writing prior to the date of this
Agreement or verbally to Phokion Potamianos on 14 May 2009 and (ii) the
failure by the Ultimate Parent to file certain special resolutions of its
shareholders changing its name to Velti Plc with the Jersey Registrar of
Companies within the 21 day period required under Jersey law shall not
constitute a breach of this representation and (iii) the failure by the
Ultimate Parent to file with the Jersey Registrar of Companies within the 21
day period required by Jersey law, special resolutions of its shareholders
passed on 14 September 2009 for the purposes of, inter alia, changing the
Ultimate Parent’s name to Velti PLC, adopting new memorandum and articles of
association of the Ultimate Parent, appointing additional directors of the
Ultimate Parent and approving buybacks of shares in the Ultimate Parent.


 


17.16       Taxation


 


(a)           It is not materially overdue in the filing of any Tax
returns and it is not overdue in the payment of any amount in respect of Tax of
€500,000 (or its equivalent in any other currency) or more.


 


(b)           No claims or investigations are being, or are
reasonably likely to be, made or conducted against it with respect to Taxes
such that a liability of, or claim of, €500,000 (or its equivalent in any other
currency) or more is reasonably likely to arise.


 


(c)           Other than
any Obligor which is incorporated in the United States, it  is resident for Tax purposes
only in the jurisdiction of its incorporation.


 


17.17       Security and Financial Indebtedness


 


(a)           No Security or Quasi-Security exists over all or any
of the present or future assets of any member of the Group other than as
permitted by this Agreement.


 


(b)           No member of the Group has any Financial Indebtedness
outstanding other than as permitted by this Agreement.


 


71

















 


17.18       Ranking


 


Subject to the Legal Reservations, the Transaction Security has or
will have first ranking priority and it is not subject to any prior ranking or pari passu ranking Security, save to the extent that such
other Security may be permitted in accordance with the terms of this Agreement and provided that no
representation is made as to the ranking between themselves of the Structural
Intra Group Documents and the Finance Documents.


 


17.19       Good title to assets


 


It and each of
its Subsidiaries has a good, valid and marketable title to, or valid leases or
licences of, and all appropriate Authorisations to use, the assets necessary to
carry on its business as presently conducted.


 


17.20       Legal and beneficial ownership


 


It and each of
its Subsidiaries is the sole legal and beneficial owner of the respective
assets over which it purports to grant Security and those assets are free from
any claims, third party rights or competing interests other than Permitted Security
permitted under Clause 20.10 (Negative Pledge).


 


17.21       Shares


 


Except as set out below in
respect of the Parent the shares of any member of the Group which are subject
to the Transaction Security are fully paid and not subject to any option to
purchase or similar rights and the constitutional documents of companies whose shares are subject to the
Transaction Security do not and could not restrict or inhibit any transfer of
those shares on creation or enforcement of the Transaction Security. Except as
set out below in respect of the Parent, there are no agreements in force which
provide for the issue or allotment of, or grant any person the right to call
for the issue or allotment of, any share or loan capital of any member of the
Group (other than the Ultimate Parent) (including any option or right of
pre-emption or conversion) save
in each case for any rights granted by the Parent pursuant to (i) the
Velti Plc Share Incentive Plan adopted by the Parent on 26 April 2006, (ii) the
Velti Plc JV/NCA Share Incentive Plan adopted by Parent on 6 July 2007 and
(iii) the Velti Plc 2009 Share Incentive Plan adopted by the Parent on 15 July 2009.


 


17.22       Intellectual Property


 


It:


 


(a)           is the sole legal and
beneficial owner of or has licensed to it on normal commercial terms all the
Intellectual Property which is material in the 


 


72

















 


context of its business and which is required by it in order to
carry on its business as it is being conducted;


 


(b)           does not, in carrying on its businesses, infringe any
Intellectual Property of any third party in any respect which has or is
reasonably likely to have a Material Adverse Effect; and


 


(c)           has taken all formal or procedural actions (including
payment of fees) required to maintain any material Intellectual Property owned
by it which is material in the context of its business.


 


17.23       Group Structure Chart


 


The Group
Structure Chart delivered to the Lender pursuant to Part I of Schedule 2 (Conditions Precedent) is true, complete and accurate in all
material respects.


 


17.24       Obligors


 


(a)           The companies listed in Schedule 1 and each Material
Company incorporated in any other jurisdiction is or will be an Obligor on the
date of this Agreement.


 


(b)           The aggregate gross assets, the aggregate net assets
and the aggregate turnover of the Guarantors and Velti SA on the date of this
Agreement (calculated on an unconsolidated basis and excluding all intra-Group
items and investments in Subsidiaries of any member of the Group) is equal to
or greater than 90% of the consolidated gross assets, net assets or turnover of
the Group.


 


17.25       Accounting reference date


 


The Accounting
Reference Date of each Obligor is 31 December.


 


17.26       Centre of main interests and establishments


 


For the
purposes of The Council of the European Union Regulation No. 1346/2000 on
Insolvency Proceedings (the “Regulation”),
the Ultimate Parent’s centre of main interest (as that term is used in Article 3(1) of
the Regulation) shall not change from what it is on the First Restatement Date
and it has no “establishment” (as that term is used in Article 2(h) of
the Regulations) in any other jurisdiction.


 


17.27       No adverse consequences


 


(a)           It is not necessary under the laws of its Relevant
Jurisdictions:


 


73

















 


(i)            in order to enable the Lender to enforce its rights
under any Finance Document; or


 


(ii)           by reason of the execution of any Finance Document or
the performance by it of its obligations under any Finance Document,


 


that the
Lender should be licensed, qualified or otherwise entitled to carry on business
in any of its Relevant Jurisdictions.


 


(b)           The Lender is not or will not be deemed to be resident,
domiciled or carrying on business in its Relevant Jurisdictions by reason only
of the execution, performance and/or enforcement of any Finance Document.


 


17.28       Times when representations made


 


(a)           All the representations and warranties in this Clause 17
are made by each Original Obligor on the date of this Agreement.


 


(b)           The Repeating Representations are deemed to be made by
each Obligor on the date of each Utilisation Request, on each Utilisation Date
and on the first day of each Interest Period (except that those contained in
paragraphs (a) - (e) of Clause 17.13 (Original Financial Statements) will cease to be so made once
subsequent financial statements have been delivered under this Agreement).


 


(c)           All the representations and warranties in this Clause
17 except Clause 17.12 (No misleading information)
and Clause 17.23 (Group Structure Chart) are deemed
to be made by each Additional Obligor on the day on which it becomes (or it is
proposed that it becomes) an Additional Obligor.


 


(d)           Each representation or warranty deemed to be made
after the date of this Agreement shall be deemed to be made by reference to the
facts and circumstances existing at the date the representation or warranty is
deemed to be made.


 


17.29       Anti-Terrorism Laws


 


Neither any US Obligor nor, to its knowledge,
any of the Subsidiaries of any US Obligor:


 


(a)           is in
violation of any Anti-Terrorism Law;


 


(b)           is a
Designated Person; or


 


(c)           deals in any
property or interest in property blocked pursuant to any Anti-Terrorism Law.


 


74

















 


17.30       US Regulation


 


No
US Obligor:


 


(a)           is a “public
utility” within the meaning of, or subject to regulation under, the United
States Federal Power Act of 1920 (16 USC §§791 et seq.).


 


(b)           is an “investment
company” or a company “controlled” by an “investment company” within the
meaning of the United States Investment Company Act of 1940 (15 USC. §§ 80a-1
et seq.) or subject to regulation under any United States federal or state law
or regulation that limits its ability to incur or guarantee indebtedness.


 


(c)           is engaged
principally, or as one of its important activities, in the business of owning
or extending credit for the purpose of purchasing or carrying any Margin Stock.


 


(d)           has made an “unlawful payment” within the
meaning of, and is not in any other way in violation of,  the Foreign Corrupt Practices Act (15 USC. §§
78dd-1 et seq.) or any similar laws.


 


17.31       Margin Regulations


 


(a)           No US
Obligor is engaged principally, or as one of its important activities, in the
business of owning or extending credit for the purpose of purchasing or
carrying any Margin Stock.


 


(b)           The proceeds
of the Loans will not be used by any US Obligor, directly or indirectly, in
whole or in part, for “purchasing” or “carrying” Margin Stock in contravention
of Regulation U or Regulation X.


 


(c)           No Obligor, and no agent acting on any
Obligor’s behalf, has taken or will take any action which might cause a
violation of Regulation T, U or X.


 


75

















 


17.32       Employee Benefit Plans


 


(a)           No US
Obligor or other member of the Controlled Group has any unfunded liabilities in
respect of any Employee Plan except to the extent that it does not, or would
not have a Material Adverse Effect.


 


(b)           No Multiemployer
Plan is in reorganisation or insolvent except to the extent that it does not
have a Material Adverse Effect.


 


18.           INFORMATION UNDERTAKINGS


 


The
undertakings in this Clause 18 remain in force from the date of this Agreement
for so long as any amount is outstanding under the Finance Documents or any
Commitment is in force.


 


In this Clause
18:


 


“Annual Financial Statements” means the financial statements
for a Financial Year delivered pursuant to paragraph (a) of Clause 18.1 (Financial statements).


 


“Quarterly Financial Statements” means the financial
statements delivered pursuant to paragraph (b) of Clause 18.1 (Financial statements).


 


18.1         Financial statements


 


The Ultimate
Parent shall supply to the Lender:


 


(a)           as soon as they are available, but in any event within
120 days after the end of each of its Financial Years:


 


(i)            its audited consolidated financial statements for that
Financial Year;


 


(ii)           the financial statements of each Obligor for that
Financial Year (which shall be audited where such audit is required by the law
of the Relevant Jurisdiction); and


 


(iii)          the financial statements of any other Subsidiary for
that Financial Year if requested by the Lender (which shall be audited where
such audit is required by the law of the Relevant Jurisdiction);


 


(b)           as soon as they are available, but in any event within
45 days after the end of each Financial Quarter of each of its Financial Years
its consolidated financial statements for that Financial Quarter.


 


18.2         Provision and contents of Compliance Certificate


 


(a)           The Ultimate Parent shall supply a Compliance
Certificate to the Lender with each set of its audited consolidated Annual
Financial Statements 


 


76

















 


and
each set of its consolidated Quarterly Financial Statements and monthly in
respect of the Security Covenant.


 


(b)           The Compliance Certificate shall, amongst other
things, set out (in reasonable detail) computations as to compliance with
Clause 19 (Financial Covenants).


 


(c)           Each Compliance Certificate shall be signed by two
directors of the Ultimate Parent.


 


18.3         Requirements as to financial statements


 


(a)             The Ultimate Parent shall procure that each set of
Annual Financial Statements and Quarterly Financial Statements includes a
balance sheet, profit and loss account and cashflow statement.  In addition the Ultimate Parent shall procure
that:


 


(i)            each set of Annual Financial Statements shall be
audited by the Auditors;


 


(ii)           each set of Quarterly Financial Statements includes a
cashflow forecast in respect of the Group relating to the 12 month period
commencing at the end of the relevant Financial Quarter.


 


(b)             Each set of financial statements delivered pursuant to
Clause 18.1 (Financial statements):


 


(i)            shall be certified by a director of the relevant
company as giving a true and fair view of (in the case of Annual Financial
Statements for any Financial Year), or fairly representing (in other cases),
its financial condition and operations as at the date as at which those
financial statements were drawn up and, in the case of the Annual Financial
Statements, where relevant shall be accompanied by any letter addressed to the
management of the relevant company by the Auditors and accompanying those
Annual Financial Statements;


 


(ii)           in the case of consolidated financial statements of
the Group, shall be accompanied by a statement by the directors of the Ultimate
Parent comparing actual performance for the period to which the financial
statements relate to:


 


(A)          the projected performance for
that period set out in the Budget; and


 


(B)           the actual performance for the
corresponding period in the preceding Financial Year of the Group.


 


77

















 


(c)           If the Lender wishes to discuss the financial position
of any member of the Group with the Auditors, the Lender may notify the
Ultimate Parent, stating the questions or issues which the Lender wishes to
discuss with the Auditors.  In this
event, the Ultimate Parent must ensure that the Auditors are authorised (at the
expense of the Ultimate Parent):


 


(i)            to discuss the financial position of each member of
the Group with the Lender on request from the Lender; and


 


(ii)           to disclose to the Lender any information which the
Lender may reasonably request.


 


18.4         Budget


 


(a)           The Ultimate Parent shall supply to the Lender, as
soon as the same become available but in any event within 30 days before the
start of each of its Financial Years, an annual Budget for that financial year.


 


(b)           The Ultimate Parent shall ensure that each Budget:


 


(i)            is in the form, or in a form that is substantially the
same as the form, set out in Schedule 9 or such form as may be agreed between
the Lender and Ultimate Parent but in the event of the Lender and the Ultimate
Parent not being able to agree on a form, the form required by the Lender
acting reasonably, and includes a projected consolidated profit and loss,
balance sheet and cashflow statement for the Group, projected financial
covenant calculations;


 


(ii)           is prepared in accordance with the Accounting
Principles and the accounting practices and financial reference periods applied
to financial statements under Clause 18.1 (Financial statements);
and


 


(iii)          has been approved by the board of directors of the
Ultimate Parent.


 


(c)           If the Company updates or changes the Budget, it shall
within not more than ten Business Days of the update or change being made
deliver to the Lender, such updated or changed Budget together with a written
explanation of the main changes in that Budget.


 


18.5         Year-end


 


The Ultimate
Parent shall not change its Accounting Reference Date without the consent of
the Lender (such consent not to be unreasonably withheld or delayed) 


 


78

















 


and shall
procure that each Financial Year-end of each Obligor falls on 31 December or
such other date agreed with the Lender from time to time.


 


18.6         Information: miscellaneous


 


The Ultimate
Parent shall supply to the Lender:


 


(a)           at the same time as they are dispatched, copies of all
documents dispatched by the Ultimate Parent to its shareholders generally (or
any class of them) or dispatched by the Ultimate Parent or any Obligors to its
creditors generally (or any class of them);


 


(b)           with each set of audited consolidated financial
statements delivered pursuant to Clause 18.1(a)(i) (Financial statements),
and with each set of Quarterly Financial Statements a certificate signed by a
director of the Ultimate Parent confirming the identity of the Material
Companies as at the date to which those financial statements were drawn up and
setting out (in reasonable detail) calculations in respect of the matters set
out in paragraph (c)(ii) of the definition of Material Company and
confirming that the aggregate gross assets, aggregate net assets and aggregate
turnover of the Guarantors and Velti SA (calculated on an unconsolidated basis
and excluding all intra-Group items and investments in Subsidiaries of any
member of the Group) as at the date to which the financial statements were
drawn exceeded 90% of the consolidated gross assets, net assets and turnover of
the Group;


 


(c)           promptly upon becoming aware of them, the details of
any litigation, arbitration or administrative proceedings which are current,
threatened or pending against any member of the Group, and which, if adversely
determined, are reasonably likely to have a Material Adverse Effect;


 


(d)           promptly, such information as the Lender may
reasonably require about the Charged Property and compliance of the Obligors
with the terms of any Transaction Security Documents; and


 


(e)           promptly on request, such further information
regarding the financial condition, assets and operations of the Group and/or
any member of the Group (including any requested amplification or explanation
of any item in the financial statements, budgets or other material provided by
any Obligor under this Agreement, any changes to management of the Group
including, without prejudice to the generality of the foregoing, Senior
Management and an up to date copy of its Shareholders’ register (or equivalent
in its jurisdiction of incorporation)) as the Lender may reasonably request.


 


79














 


18.7         Notification of default


 


(a)           Each Obligor shall notify the Lender of any Default
(and the steps, if any, being taken to remedy it) promptly upon becoming aware
of its occurrence (unless that Obligor is aware that a notification has already
been provided by another Obligor).


 


(b)           Promptly upon a request by the Lender, the Ultimate
Parent shall supply to the Lender a certificate signed by two of its directors
or senior officers on its behalf certifying that no Default is continuing (or
if a Default is continuing, specifying the Default and the steps, if any, being
taken to remedy it).


 


18.8         ERISA


 


(a)           Promptly
upon a request by the Lender, the Ultimate Parent shall deliver to the Lender
copies of Schedule B (Actuarial Information) to the Annual Report (IRS Form 5500
Series) with respect to each Employee Plan;


 


(b)           Within seven
days after it or any ERISA Affiliate becomes aware that any ERISA Event has
occurred or, in the case of any ERISA Event which requires advance notice under
Section 4043(b)(3) of ERISA, will occur, deliver to the Lender a
statement signed by a director or other authorized signatory of an Obligor or
ERISA Affiliate describing that ERISA Event and the action, if any, taken or
proposed to be taken with respect to that ERISA Event;


 


(c)           Within seven
days after receipt by it or any ERISA Affiliate or any administrator of an
Employee Plan, deliver to the Lender copies of each notice from the PBGC
stating its intention to terminate any Employee Plan or to have a trustee
appointed to administer any Employee Plan; and


 


(d)           Within seven
days after becoming aware of any event or circumstance which might constitute
grounds for the termination of (or the appointment of a trustee to administer)
any Employee Plan or Multiemployer Plan, provide an explanation of that event
or circumstance by a director of the Obligor or ERISA Affiliate affected by
that event or circumstance.


 


19.           FINANCIAL COVENANTS


 


19.1         Financial definitions


 


In this
Agreement:


 


“Adjusted EBITDA” means EBITDA minus
capitalised product development costs for the Relevant Period.


 


80

















 


“Borrowings” means, at any time, the
aggregate outstanding principal, capital or nominal amount (and any fixed or
minimum premium payable on prepayment or redemption) of any indebtedness of
members of the Group for or in respect of:


 


(a)           moneys borrowed and debit balances at banks
or other financial institutions;


 


(b)           any acceptances under any acceptance credit
or bill discount facility (or dematerialised equivalent);


 


(c)           any note purchase facility or the issue of
bonds, notes, debentures, loan stock or any similar instrument;


 


(d)           any Finance Lease;


 


(e)           receivables sold or discounted (other than
any receivables to the extent they are sold on a non-recourse basis and meet
any requirements for de-recognition under the Accounting Principles);


 


(f)            any counter-indemnity obligation in respect
of a guarantee, bond, standby or documentary letter of credit or any other
instrument issued by a bank or financial institution;


 


(g)           any amount raised by the issue of shares
which are redeemable (other than at the option of the issuer) before the
Termination Date in respect of the Term Facility or are otherwise classified as
borrowings under the Accounting Principles;


 


(h)           any amount of any liability under an
advance or deferred purchase agreement if (i) one of the reasons behind
the entry into the agreement is to raise finance or to finance the acquisition
or construction of the asset or service in question or (ii) the agreement
is in respect of the supply of assets or services and payment is due more than
30 days after the date of supply;


 


(i)            any amount raised under any other
transaction (including any forward sale or purchase agreement, sale and sale
back or sale and leaseback agreement) having the commercial effect of a
borrowing or otherwise classified as borrowings under the Accounting
Principles; and


 


(j)            (without double counting) the amount of any
liability in respect of any guarantee or indemnity for any of the items
referred to in paragraphs (a) to (i) above.


 


“Business Acquisition” means the acquisition
of a company or any shares or securities or a business or undertaking (or, in
each case, any interest in any of them) or the incorporation of a company.


 


81

















 


“Capital Expenditure” means any expenditure
or obligation in respect of expenditure which, in accordance with the
Accounting Principles, is treated as capital expenditure (and including the
capital element of any expenditure or obligation incurred in connection with a
Finance Lease).


 


“Cashflow” means, in respect of any Relevant
Period, EBITDA for that Relevant Period after:


 


(a)           adding the amount of any decrease (and
deducting the amount of any increase) in Working Capital for that Relevant
Period;


 


(b)           adding the amount of any cash receipts
during that Relevant Period in respect of any Tax rebates or credits and
deducting the amount actually paid or due and payable in respect of Taxes
during that Relevant Period by any member of the Group;


 


(c)           adding (to the extent not already taken
into account in determining EBITDA) the amount of any dividends or other profit
distributions received in cash by any member of the Group during that Relevant
Period from any entity which is itself not a member of the Group and deducting
(to the extent not already deducted in determining EBITDA) the amount of any
dividends paid in cash during the Relevant Period to minority shareholders in
members of the Group;


 


(d)           adding the amount of any cash paid to a
member of the Group in the Relevant Period that represents repayment of any
loan made to a Joint Venture;


 


(e)           deducting any amount attributable to the
appreciation of fixed assets,


 


(f)            deducting any inteterest payable under any
Financial Indebtedness or borrowings other than incurred under this Agreement;


 


and so that no
amount shall be added (or deducted) more than once.


 


“Cashflow Cover” means the ratio of Cashflow
to Debt Service in respect of any Relevant Period.


 


“Current Assets” means the aggregate (on a
consolidated basis) of all inventory, work in progress, trade and other
receivables of each member of the Group including prepayments in relation to
operating items and sundry debtors (but excluding Cash and Cash Equivalent
Investments) maturing within twelve months from the date of computation but excluding amounts in respect of:


 


(a)           receivables in relation to Tax (other than
VAT);


 


(b)           Exceptional Items and other non-operating
items;


 


82

















 


(c)           insurance claims;


 


(d)           any interest owing to any member of the
Group.


 


“Current Liabilities” means the aggregate
(on a consolidated basis) of all liabilities (including trade creditors,
accruals and provisions) of each member of the Group falling due within twelve
months from the date of computation but excluding
amounts in respect of:


 


(a)           liabilities for Borrowings and Finance
Charges;


 


(b)           liabilities for Tax (other than VAT);


 


(c)           Exceptional Items and other non-operating
items;


 


(d)           insurance claims; and


 


(e)           liabilities in relation to dividends
declared but not paid by the Ultimate Parent or by a member of the Group in
favour of a person which is not a member of the Group.


 


“Debt Service” means, in respect of any
Relevant Period, the aggregate of:


 


(a)           Finance Charges for that Relevant Period;


 


(b)           the aggregate of all scheduled or mandatory
repayments of Borrowings falling due and any voluntary prepayments made during
that Relevant Period  but excluding:


 


(i)            any amounts falling due under any overdraft
or revolving facility and which were available for simultaneous redrawing
according to the terms of that facility;


 


(ii)           any mandatory prepayment made pursuant to
Clause 8.2 (Disposal and Insurance Proceeds);


 


(iii)          any such obligations owed to any member of
the Group.


 


(c)           the amount of any cash dividends or
distributions paid or made by the Ultimate Parent in respect of that Relevant
Period; and


 


(d)           the amount of the capital element of any
payments in respect of that Relevant Period payable under any Finance Lease
entered into by any member of the Group,


 


and so that no
amount shall be included more than once  and excluding any payments due to Unicredit Bank/Bayerische Hypo-und
Vereinsbank AG in respect of Financial Indebtedness comprised in the definition
of Existing Debt.


 


83

















 


“EBIT” means, in respect of any Relevant
Period, the consolidated operating profit of the Group before taxation
(including the results from discontinued operations):


 


(a)           before deducting any Finance Charges;


 


(b)           not including any accrued interest owing to
any member of the Group;


 


(c)           before taking into account
any
Exceptional Items;


 


(d)           after deducting the amount of any profit (or
adding back the amount of any loss) of any member of the Group which is
attributable to minority interests;


 


(e)           after deducting the amount of any profit of
any Non-Group Entity to the extent that the amount of the profit included in
the financial statements of the Group exceeds the amount actually received in
cash by members of the Group through distributions by the Non-Group Entity;


 


(f)            before taking into account
any
unrealised gains or losses on any derivative instrument (other than any
derivative instrument which is accounted for on a hedge accounting basis);


 


(g)           before taking into account
any
gain arising from an upward  revaluation
of any other asset at any time after 31 December 2008;


 


(h)           excluding the charge to profit represented by the
expensing of stock options;


 


(i)            before deducting any non-cash items (including but
not limited to stock awards and options and non-cash foreign currency
transaction losses);


 


(j)            adding any
payments which represent consideration (whether deferred or otherwise) for any
acquisition of a company, shares, securities or a business or undertaking which
were made during such Relevant Period;


 


in each case,
to the extent added, deducted or taken into account, as the case may be, for
the purposes of determining operating profits of the Group before taxation.


 


“EBITDA” means, in respect of any Relevant
Period, EBIT for that Relevant Period after
adding back any amount attributable to the amortisation or
depreciation of assets of members of the Group.


 


“Exceptional Items” means any material items
of an unusual or non-recurring nature which represent gains or losses including
those arising on:


 


84

















 


(a)           the restructuring of the activities of an
entity and reversals of any provisions for the cost of restructuring;


 


(b)           disposals, revaluations or impairment of
non-current assets; and


 


(c)           disposals of assets associated with
discontinued operations, and provided that it is treated as such for the
purposes of the Accounting Principals and is not in excess of €100,000 in any
Financial Year.


 


“Finance Charges” means, for any Relevant
Period, the aggregate amount of the accrued interest, commission, fees,
discounts, prepayment fees, premiums or charges and other finance payments in
respect of Borrowings other than Borrowings owed by a member of the Group to
another whether paid, payable or capitalised by any member of the Group
(calculated on a consolidated basis) in respect of that Relevant Period:


 


(a)           including the interest (but not the
capital) element of payments in respect of Finance Leases;


 


(b)           if a Joint Venture is accounted for on a
proportionate consolidation basis, after adding
the Group’s share of the finance costs or interest receivable of the Joint
Venture.


 


“Finance Lease” means any lease or hire
purchase contract which would, in accordance with the Accounting Principles, be
treated as a finance or capital lease.


 


“Financial Quarter” 
means the period commencing on the day after one Quarter Date and ending
on the next Quarter Date.


 


“Financial Year” means the annual accounting period of the
Group ending on or about 31 December in each year.


 


“Interest Cover” means the ratio of Adjusted EBITDA to
Finance Charges in respect of any Relevant Period.


 


“Leverage” means, in respect of any Relevant
Period, the ratio of Total Net Debt on the last day of that Relevant Period to
Adjusted EBITDA in respect of that Relevant Period.


 


“Liquidity” means the aggregate of:


 


(a)           Cash plus an amount equal to the sums standing to the
credit of any bank account of an Obligor incorporated in Greece; and


 


(b)           Existing Debt which as at the end of the
Relevant Period falls due before one year from the end of such Relevant Period.


 


85

















 


“Non-Group Entity” means any investment or entity (which is
not itself a member of the Group (including associates and Joint Ventures)) in
which any member of the Group has an ownership interest.


 


“Quarter Date” means each of 31 March, 30
June, 30 September and 31 December.


 


“Relevant Period” means each period of
twelve months ending on or about the last day of the Financial Year and each
period of twelve months ending on or about the last day of each Financial
Quarter.


 


“Relevant Proceeds” means Disposal Proceeds (as
defined in Clause 8.2 (Disposal and Insurance
Proceeds).


 


“Total Net Debt” means, at any time, the
aggregate amount of all obligations of members of the Group for or in respect
of Borrowings at that time but:


 


(c)           excluding  any such obligations to any other member of
the Group;


 


(d)           including, in the case of Finance Leases
only, their capitalised value; and


 


(e)           deducting the aggregate amount of Cash
and Cash Equivalent Investments held by any Obligor at that time,


and so that no
amount shall be included or excluded more than once.


 


“Unused Amount” has the meaning given to it
in Clause 19.2 (Financial condition).


 


“Working Capital” means, on any date,
Current Assets less Current Liabilities.


 


19.2         Financial condition


 


The Ultimate
Parent shall ensure that:


 


(a)           Cashflow Cover:  Cashflow Cover in respect of any Relevant
Period specified in column 1 below shall not be less than the ratio set out in
column 2 below opposite that Relevant Period.


 


	
  Column 1

  Relevant Period

  	
   

  	
  Column 2

  Ratio

  
	
   

  	
   

  	
   

  
	
  Relevant
  Period expiring 31 March 2010

  	
   

  	
  (0.30):1.00

  
	
   

  	
   

  	
   

  
	
  Relevant
  Period expiring 30 June 2010

  	
   

  	
  0.30:1.00

  
	
   

  	
   

  	
   

  
	
  Relevant
  Period expiring 30 September 2010

  	
   

  	
  0.50:1.00

  



 


86

















 


	
  Relevant
  Period expiring 31 December 2010

  	
   

  	
  0.75:1.00

  
	
   

  	
   

  	
   

  
	
  Relevant
  Period expiring 31 March 2011

  	
   

  	
  1.00:1.00

  
	
   

  	
   

  	
   

  
	
  Relevant
  Period expiring 30 June 2011

  	
   

  	
  1.10:1.00

  



 


(b)           Interest Cover:  Interest Cover in respect of any Relevant
Period specified in column 1 below shall not be less than the ratio set out in
column 2 below opposite that Relevant Period.


 


	
  Column 1

  Relevant Period

  	
   

  	
  Column 2

  Ratio

  
	
   

  	
   

  	
   

  
	
  Relevant
  Period expiring 30 September 2009

  	
   

  	
  3.00:1.00

  
	
   

  	
   

  	
   

  
	
  Relevant
  Period expiring 31 December 2009

  	
   

  	
  4.00:1.00

  
	
   

  	
   

  	
   

  
	
  Relevant
  Period expiring 31 March 2010

  	
   

  	
  4.00:1.00

  
	
   

  	
   

  	
   

  
	
  Relevant
  Period expiring 30 June 2010

  	
   

  	
  4.00:1.00

  
	
   

  	
   

  	
   

  
	
  Relevant
  Period expiring 30 September 2010

  	
   

  	
  4.00:1.00

  
	
   

  	
   

  	
   

  
	
  Relevant
  Period expiring 31 December 2010

  	
   

  	
  4.00:1.00

  
	
   

  	
   

  	
   

  
	
  Relevant
  Period expiring 31 March 2011

  	
   

  	
  4.00:1.00

  
	
   

  	
   

  	
   

  
	
  Relevant
  Period expiring 30 June 2011

  	
   

  	
  4.00:1.00

  



 


(c)           Leverage:  Leverage in respect of any Relevant Period
specified in column 1 below shall not exceed the ratio set out in column 2
below opposite that Relevant Period.


 


87

















 


	
  Column 1

  Relevant Period

  	
   

  	
  Column 2

  Ratio

  
	
   

  	
   

  	
   

  
	
  Relevant
  Period expiring 30 September 2009

  	
   

  	
  1.25:1.00

  
	
   

  	
   

  	
   

  
	
  Relevant
  Period expiring 31 December 2009

  	
   

  	
  1.00:1.00

  
	
   

  	
   

  	
   

  
	
  Relevant
  Period expiring 31 March 2010

  	
   

  	
  1.00:1.00

  
	
   

  	
   

  	
   

  
	
  Relevant
  Period expiring 30 June 2010

  	
   

  	
  1.00:1.00

  
	
   

  	
   

  	
   

  
	
  Relevant
  Period expiring 30 September 2010

  	
   

  	
  0.75:1.00

  
	
   

  	
   

  	
   

  
	
  Relevant
  Period expiring 31 December 2010

  	
   

  	
  0.75:1.00

  
	
   

  	
   

  	
   

  
	
  Relevant
  Period expiring 31 March 2011

  	
   

  	
  0.75:1.00

  
	
   

  	
   

  	
   

  
	
  Relevant
  Period expiring 30 June 2011

  	
   

  	
  0.75:1.00

  



 


(d)           Liquidity: The minimum Liquidity on the
relevant Quarter Date specified in column 1 below shall not be less than the
amount set out in column 2 below opposite that Quarter Date.


 


	
  Column 1

  Quarter Date

  	
   

  	
  Column 2

  Ratio

  
	
   

  	
   

  	
   

  
	
  30
  September 2009

  	
   

  	
  €2,500,000
  plus the amount to be paid in connection with the Existing Unicredit Debt
  within 60 days of the Quarter Date

  
	
   

  	
   

  	
   

  
	
  31
  December 2009

  	
   

  	
  €2,500,000
  plus the amount to be paid in connection with the Existing Unicredit Debt
  within 60 days of the Quarter Date

  
	
   

  	
   

  	
   

  
	
  31
  March 2010

  	
   

  	
  €2,500,000
  plus the amount to be paid in connection with the Existing Unicredit Debt
  within 60 

  



 


88

















 


	
   

  	
   

  	
  days of the
  Quarter Date

  
	
   

  	
   

  	
   

  
	
  30
  June 2010

  	
   

  	
  €2,500,000
  plus the amount to be paid in connection with the Existing Unicredit Debt
  within 60 days of the Quarter Date

  
	
   

  	
   

  	
   

  
	
  30
  September 2010

  	
   

  	
  €2,500,000
  plus the amount to be paid in connection with the Existing Unicredit Debt
  within 60 days of the Quarter Date

  
	
   

  	
   

  	
   

  
	
  31
  December 2010

  	
   

  	
  €2,500,000
  plus the amount to be paid in connection with the Existing Unicredit Debt
  within 60 days of the Quarter Date

  
	
   

  	
   

  	
   

  
	
  31
  March 2011

  	
   

  	
  €2,500,000
  plus the amount to be paid in connection with the Existing Unicredit Debt
  within 60 days of the Quarter Date

  
	
   

  	
   

  	
   

  
	
  30
  June 2011

  	
   

  	
  €2,500,000
  plus the amount to be paid in connection with the Existing Unicredit Debt
  within 60 days of the Quarter Date

  



 


(e)           Security Covenant: The Receivables Ratio shall
not at any time be less than 1.00:1.00.


 


19.3         Financial testing


 


The financial
covenants set out in Clause 19.2 (Financial
condition) shall be calculated in accordance with the Accounting
Principles and tested by reference to each of the financial statements
delivered pursuant to paragraphs (a)(i) and (b) of Clause 18.1 (Financial Statements) and/or each
Compliance Certificate delivered pursuant to Clause 18.2 (Provision and contents of Compliance Certificate).
Where a member of the
Group is acquired or disposed of during any Relevant Period, the financial
covenants set out in Clause 19.2 (Financial condition) shall be calculated in
respect of the period, within such Relevant Period, during which such Group
member was a member of the Group only.


 


20.           GENERAL UNDERTAKINGS


 


The
undertakings in this Clause 20 remain in force from the date of this Agreement
for so long as any amount is outstanding under the Finance Documents or any
Commitment is in force.


 


89














  


Authorisations
and compliance with laws


 


20.1         Authorisations


 


Each Obligor
shall promptly:


 


(a)           obtain, comply with and do all that is necessary to
maintain in full force and effect; and


 


(b)           supply certified copies to the Lender of,


 


any
Authorisation required under any law or regulation of a Relevant Jurisdiction
to:


 


(i)            enable it to perform its obligations under the Finance
Documents;


 


(ii)           ensure the legality, validity, enforceability or
admissibility in evidence of any Finance Document; and


 


(iii)          carry on its business where failure to do so has or is
reasonably likely to have a Material Adverse Effect.


 


20.2         Compliance with laws


 


Each Obligor
shall (and the Ultimate Parent shall ensure that each member of the Group will)
comply in all respects with all laws to which it may be subject, if failure so
to comply has or is reasonably likely to have a Material Adverse Effect.


 


20.3         Taxation


 


(a)           Each Obligor shall pay and discharge all Taxes imposed
upon it or its assets within the time period allowed without incurring
penalties unless and only to the extent that:


 


(i)            such payment is being contested in good faith;


 


(ii)           adequate reserves are being maintained for those Taxes
and the costs required to contest them which have been disclosed in its latest
financial statements delivered to the Lender under Clause 18.1 (Financial statements); and


 


(iii)          such payment can be lawfully withheld.


 


(b)           No member of the Group may change its residence for
Tax purposes.


 


90

















 


Restrictions
on business focus


 


20.4         Merger


 


Other than a Redomiciliation, no Obligor shall enter into any amalgamation, demerger, merger,
consolidation or corporate reconstruction.


 


20.5         Change of business


 


The Ultimate
Parent shall procure that no substantial change is made to the general nature
of the business of the Ultimate Parent, the Obligors or the Group taken as a
whole from that carried on by the Group at the date of this Agreement.


 


20.6         Acquisitions


 


(a)           Subject to paragraph (b) below, no member of the
Group shall:


 


(i)            acquire a company or any shares or securities or a
business or undertaking (or, in each case, any interest in any of them); or


 


(ii)           incorporate a company.


 


(b)           An acquisition of a company, of shares, securities or
a business or undertaking (or in each case, any interest in any of them) or the
incorporation of a company is permitted provided that:


 


(i)            no Event of Default is continuing;


 


(ii)           save where the Lender has provided its written consent
to the contrary (such consent not to be unreasonably withheld), the proposed
target business or undertaking does not have any pensions liabilities in excess
of €2,000,000, or environmental liabilities in excess of €2,000,000, or
litigation liabilities in excess of €2,000,000 that have not been indemnified
or insured against; and


 


(iii)          the proposed target company, business or undertaking
is incorporated or established with limited liability, and does not carry on
its principal business in a country or jurisdiction that is listed as being
subject to sanctions or any form of similar restriction issued by the Office of
Foreign Assets Control of The United States Department of the Treasury or any
replacement or equivalent United States government office.


 


20.7         Joint ventures


 


(a)           Subject to paragraph (b) below, no member of the
Group shall:


 


91

















 


(i)            enter into, invest in or acquire (or agree to acquire)
any shares, stocks, securities or other interest in any Joint Venture; or


 


(ii)           transfer any assets or lend to or guarantee or give an
indemnity for or give Security for the obligations of a Joint Venture or
maintain the solvency of or provide working capital to any Joint Venture (or
agree to do any of the foregoing).


 


(b)           Any entry into, investment into and acquisition of (or agreement to
acquire) any interest in a Joint Venture or transfer assets (or agreement to
transfer assets) to a Joint Venture or loan made to or guarantee or indemnity or Security given
in respect of the obligations of a Joint Venture  or other action taken to mitigate the solvency of or to provide working
capital to any Joint Venture (or any agreement to do any of the foregoing)  is
permitted provided that:


 


(i)            no Event of Default is continuing;


 


(ii)           save where the Lender has provided its written consent
to the contrary (such consent not to be unreasonably withheld), such Joint
Venture does not have any pensions liabilities in excess of €2,000,000, or
environmental liabilities in excess of €2,000,000, or litigation liabilities in
excess of €2,000,000 that have not been indemnified or insured against; and


 


(iii)          that Joint Venture is incorporated or established, and
does not carry on its principal business in a country or jurisdiction that is
listed as being subject to sanctions or any form of similar restriction issued
by the Office of Foreign Assets Control of The United States Department of the
Treasury or any replacement or equivalent United States government office.


 


Restrictions
on dealing with assets and Security


 


20.8         Preservation of assets


 


Each Obligor
shall maintain in good working order and condition (ordinary wear and tear
excepted) all of its assets necessary or desirable in the conduct of its
business.


 


20.9         Pari passu ranking


 


Each Obligor
shall ensure that at all times any unsecured and unsubordinated claims of the
Lender against it under the Finance Documents rank at least pari passu with the claims of all its other unsecured and
unsubordinated creditors 


 


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except those
creditors whose claims are mandatorily preferred by laws of general application
to companies.


 


20.10       Negative pledge


 


In this Clause
20.10, “Quasi-Security” means a transaction
described in paragraph (b) below.


Except as
permitted under paragraph (c) below:


 


(a)           No Obligor shall create or permit to subsist any
Security over any of its assets.


 


(b)           No Obligor shall:


 


(i)            sell, transfer or otherwise dispose of any of its
assets on terms whereby they are or may be leased to or re-acquired by an
Obligor or any other member of the Group;


 


(ii)           sell, transfer or otherwise dispose of any of its
receivables on recourse terms;


 


(iii)          enter into any arrangement under which money or the
benefit of a bank or other account may be applied, set-off or made subject to a
combination of accounts; or


 


(iv)          enter into any other preferential arrangement having a
similar effect,


 


in
circumstances where the arrangement or transaction is entered into primarily as
a method of raising Financial Indebtedness or of financing the acquisition of
an asset.


 


(c)           Paragraphs (a) and (b) above do not apply to
any Security or (as the case may be) Quasi-Security, which is:


 


(i)            Permitted Security; or


 


(ii)           a Permitted Transaction.


 


20.11       Disposals


 


(a)           Except as permitted under paragraph (b) below, no
Obligor shall enter into a single transaction or a series of transactions
(whether related or not) and whether voluntary or involuntary to sell, lease,
transfer or otherwise dispose of any asset.


 


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(b)           Paragraph (a) above does not apply to any sale,
lease, transfer or other disposal which is a Permitted Disposal or a Permitted
Transaction.


 


20.12       Arm’s length basis


 


(a)           Except as permitted by paragraph (b) below, no
Obligor shall enter into any transaction with any person except on arm’s length
terms and for full market value.


 


(b)           The following transactions shall not be a breach of
this Clause 20.12:


 


(i)            intra-Group loans permitted under Clause 20.13 (Loans or credit);


 


(ii)           fees, costs and expenses payable under the Transaction
Documents in the amounts set out in the Transaction Documents delivered to the
Lender under Clause 4.1 (Initial conditions
precedent) or agreed by the Lender; and


 


(iii)          any Permitted Transaction.


 


Restrictions
on movement of cash - cash out


 


20.13       Loans or credit


 


(a)           Except as permitted under paragraph (b) below, no
Obligor shall be a creditor in respect of any Financial Indebtedness.


 


(b)           Paragraph (a) above does not apply to:


 


(i)            a Permitted Loan; or


 


(ii)           a Permitted Transaction.


 


20.14       No Guarantees or indemnities


 


(a)           Except as permitted under paragraph (b) below, no
Obligor shall incur or allow to remain outstanding any guarantee in respect of
any obligation of any person.


 


(b)           Paragraph (a) does not apply to a guarantee which
is:


 


(i)            a Permitted Guarantee; or


 


(ii)           a Permitted Transaction.


 


20.15       Dividends and share redemption


 


(a)           Except as permitted under paragraph (b) below,
the Ultimate Parent shall not (and will ensure that no other member of the
Group will):


 


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(i)            declare, make or pay any dividend, charge, fee or
other distribution (or interest on any unpaid dividend, charge, fee or other
distribution) (whether in cash or in kind) on or in respect of its share
capital (or any class of its share capital);


 


(ii)           repay or distribute any dividend or share premium
reserve;


 


(iii)          pay or allow any member of the Group to pay any
management, advisory or other fee to or to the order of any of the shareholders
of the Ultimate Parent; or


 


(iv)          redeem, repurchase, defease, retire or repay any of
its share capital or resolve to do so.


 


(b)           Paragraph (a) above does not apply to:


 


(i)            a Permitted Distribution; or


 


(ii)           a Permitted Transaction (other than one referred to in
paragraph (c) of the definition of that term).


 


Restrictions
on movement of cash - cash in


 


20.16       Financial Indebtedness


 


(a)           Except as permitted under paragraph (b) below, no
Obligor shall incur or allow to remain outstanding any Financial Indebtedness.


 


(b)           Paragraph (a) above does not apply to Financial
Indebtedness which is:


 


(i)            Permitted Financial Indebtedness; or


 


(ii)           a Permitted Transaction.


 


Miscellaneous


 


20.17      Cash Management


 


The Ultimate
Parent shall procure that if any Obligor incorporated in Greece and any
Subsidiaries of Velti SA that are incorporated in Greece hold in aggregate on
the date falling two Business Days following the end of each calendar month,
cash or Cash Equivalent Investments in an amount greater than €5,000,000 (the
amount of such excess being the “Cash Balance”),
any such Cash Balance shall as soon as reasonably practicable be transferred by such member of the Group
to a bank account that is subject to the Transaction Security of an
Obligor (other than the Parent or Ultimate Parent).


 


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20.18       Structural Intra-Group Documents


 


Neither the Parent, the Ultimate Parent nor Velti
SA shall amend, vary, supplement, waive, prepay, cancel, release, forgive,
set-off, alter or adjust the terms of the Structural
Intra-Group Documents and the level of indebtedness or level of Security
granted thereunder in any way whatsoever without the prior written consent of
the Lender.


 


20.19       Release of AdInfuse Acquisition Security


 


The Ultimate
Parent shall procure that the AdInfuse Acquisition Security shall be released
as soon as reasonably practicable following repayment in full of the Velti US
Loan Notes.


 


20.20       Insurance


 


(a)           Each Obligor shall maintain insurances on and in
relation to its business and assets against those risks and to the extent as is
usual for companies carrying on the same or substantially similar business.


 


(b)           All insurances must be with reputable independent
insurance companies or underwriters.


 


(c)           The Parent or the Ultimate Parent shall obtain and
maintain each Key-man Policy and procure the renewal or replacement of each
Key-man Policy prior to its expiry.


 


20.21       Access


 


The Ultimate
Parent shall ensure that each member of the Group will permit the Lender and/or
accountants or other professional advisers and contractors of the Lender free
access at all reasonable times and on reasonable notice at the risk and cost of
the Obligor or Ultimate Parent to (a) the premises, assets, books,
accounts and records of each member of the Group and (b) meet and discuss
matters with Senior Management.


 


20.22       Intellectual Property


 


Each Obligor
shall:


 


(a)           preserve and maintain the subsistence and validity of
the Intellectual Property necessary for its business;


 


(b)           to the extent reasonably prudent and in the interests
of the relevant member of the Group, use reasonable endeavours to prevent any
infringement in any material respect of the Intellectual Property;


 


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(c)           make registrations and pay all registration fees and
taxes necessary to maintain the Intellectual Property in full force and effect
and record its interest in that Intellectual Property;


 


(d)           not use or permit the Intellectual Property to be used
in a way or take any step or omit to take any step in respect of that
Intellectual Property which may materially and adversely affect the existence
or value of the Intellectual Property or imperil its right to use such
property; and


 


(e)           not discontinue the use of the Intellectual Property,


 


where failure
to do so in the case of paragraphs (a) to (c) or, in the case of
paragraphs (d) or (e) such use, permission to use, omission or
discontinuation is reasonably likely to have a Material Adverse Effect.


 


20.23       Amendments


 


(a)           No Obligor shall amend, vary, novate, supplement,
supersede, waive or terminate any term of its constitutional documents or enter
into any agreement with any shareholders of the Ultimate Parent  or any of their Affiliates which is not a
member of the Group except in writing:


 


(i)            prior to or on the date of this Agreement, with the
prior written consent of the Lender; or


 


(ii)           after the date of this Agreement, in a way which could
not be reasonably expected materially and adversely to affect the interests of
the Lender.


 


(b)           The Ultimate Parent shall promptly supply to the
Lender a copy of any document relating to any of the matters referred to in
paragraphs (i) and (ii) above.


 


20.24       Financial assistance


 


Each Obligor
shall comply in all respects with sections 151 to 154 of the Companies Act 1985
and any equivalent legislation in other jurisdictions including in relation to
the execution of the Transaction Security Documents and payment of amounts due
under this Agreement.


 


20.25       Treasury Transactions


 


No Obligor
shall enter into any Treasury Transaction, other than:


 


(a)           spot and forward delivery foreign exchange contracts
entered into in the ordinary course of business and not for speculative
purposes; and


 


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(b)           any Treasury Transaction entered into for the hedging
of actual or projected real exposures arising in the ordinary course of trading
activities of a member of the Group for a period of not more than twelve months
and not for speculative purposes.


 


20.26       Guarantors


 


(a)           The Ultimate Parent shall ensure that within 60 days
of each Material Companies Certificate of the Ultimate Parent being provided to
the Lender pursuant to Clause 18.6(b) (Information: miscellaneous),
the aggregate gross assets, the aggregate net assets and aggregate turnover of
the Guarantors and Velti SA (in each case calculated on an unconsolidated basis
and excluding all intra-group items) represents not less than 90 per cent of
consolidated gross assets, consolidated net assets and consolidated turnover of
the Group.


 


(b)           The Ultimate Parent need only perform its obligations
under paragraph (a) above if it is not unlawful for the relevant person to
become a Guarantor and that person becoming a Guarantor would not result in
personal liability for that person’s directors or other management. Each
Obligor must use, and must procure that the relevant person uses, all
reasonable endeavours lawfully available to avoid any such unlawfulness or
personal liability. This includes agreeing to a limit on the amount guaranteed.
The Lender may (but shall not be obliged to) agree to such a limit it, in its
opinion, to do so would avoid the relevant unlawfulness or personal liability.


 


20.27       Further assurance


 


(a)           Each Obligor shall promptly do all such acts or execute
all such documents (including assignments, transfers, mortgages, charges,
notices and instructions) as the Lender may reasonably specify (and in such
form as the Lender may reasonably require in favour of the Lender or its
nominee(s)):


 


(i)            to perfect the Security created or intended to be
created under or evidenced by the Transaction Security Documents (which may
include the execution of a mortgage, charge, assignment or other Security over
all or any of the assets which are, or are intended to be, the subject of the
Transaction Security) or for the exercise of any rights, powers and remedies of
the Lender provided by or pursuant to the Finance Documents or by law;


 


(ii)           subject to the Agreed Security Principles, to confer
on the Lender Security over any property and assets of that Obligor located in 


 


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any
jurisdiction equivalent or similar to the Security intended to be conferred by
or pursuant to the Transaction Security Documents; and/or


 


(iii)          to facilitate the realisation of the assets which are,
or are intended to be, the subject of the Transaction Security.


 


(b)           Subject to
paragraph (c) below, each Obligor shall on the Lender’s reasonable request take
all such action as is available to it (including making all filings and
registrations) as may be necessary for the purpose of the creation, perfection,
protection or maintenance of any Security conferred or intended to be conferred
on the Lender by or pursuant to the Finance Documents.


 


(c)           Notwithstanding any contrary terms of any provision of this Agreement or
any other Finance Document, no Obligor shall be obliged to provide notice to
any party in respect of any Security over invoiced or billed receivables
originated by it.


 


20.28       Partially Owned Subsidiaries


 


The Ultimate
Parent shall ensure that any shareholders agreement or similar arrangement that
is proposed to be entered into by any member of the Group with any potential
minority shareholder in relation to the shareholding of a Subsidiary, shall be
negotiated on terms that prevent that third party minority shareholder from
blocking the accession of that Subsidiary as a Guarantor or preventing that
Subsidiary from granting Transaction Security in accordance with the terms of
this Agreement, save where agreement of the terms of such shareholders
agreement can not be achieved in accordance with this Clause and where failure
to enter into the shareholders agreement would be reasonably likely to cause
the Group to fail to benefit from a materially beneficial business arrangement.


 


20.29       Conditions subsequent


 


(a)           The Parent shall supply to the Lender a copy of the
Key-man Policies within 90 days of the date of this Agreement.


 


(b)           Velti US Holdings, Inc shall grant, as soon as
possible (exercising best efforts to do so) but, in any event, not later than
within 30 Business Days of the AdInfuse Acquisition Security being released,
Security over the entire issued share capital of AdInfuse, Inc.


 


(c)           The Parent shall procure that
by not later than the Velti SA Accession Date, HSBC Bank shall have executed
the HSBC Consent Letter (in a form acceptable to the Lender acting reasonably).


 


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(d)           The Parent shall procure that
on or before the Velti SA Accession Date, Velti SA shall accede to this
Agreement as an Additional Borrower in accordance with the terms of this
agreement and shall execute the Velti SA Security in favor of the Lender and
supply to the Lender the Velti SA Additional Documents (all such documents to
be in a form acceptable to the Lender acting reasonably).


 


(e)           The Parent shall procure that
on the date that Velti SA accedes to this Agreement as an Additional Borrower,
Velti SA shall confirm to the Lender and provide evidence of utilisation of a
loan from the Parent of $5,000,000 pursuant to the terms of the Downstream Loan
Agreement.


 


(f)            The Parent shall, on or before
the Velti SA Accession Date, provide the Lender with a letter confirming the
Holding Account and the Mandatory Prepayment Account, which for the avoidance
of doubt must be two separate accounts, including details of such accounts,
account numbers and names and addresses of the bank or banks where such
accounts are held.


 


(g)           The Parent shall
within 5 Business Days of the date of the first Utilisation under this
Agreement issue the Arrangement Fee Shares to the Lender (or such other
individuals as the Lender may specify in writing to the Parent prior to the
date of this Agreement).


 


(h)           The Parent shall
within 8 Business Days of the date of the first Utilisation under this
Agreement deliver a certified copy of the shareholders’ register of the Parent
evidencing the issuance of the Arrangement Fee Shares to the Lender (or such
other individuals as the Lender may specify in writing to the Parent prior to
the date of this Agreement).


 


(i)            The Parent shall within 14
Business Days of the date of the first Utilisation under this Agreement deliver
share certificates evidencing the issuance of the Arrangement Fee Shares to the
Lender (or such other individuals as the Lender may specify in writing to the
Parent prior to the date of this Agreement).


 


The Lender confirms that all the conditions set out in this Clause 20.29
have been satisfied as at the First Restatement Date.


 


20.30       US Regulation


 


Each Obligor
shall ensure that it will not, by act or omission, become subject to regulation
under to any of the laws or regulations described in 17.31  (US Regulation).


 


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20.31       Anti-Terrorism Laws


 


(a)                                  No Obligor
shall knowingly engage in any transaction that violates any of the applicable
prohibitions set forth in any Anti-Terrorism Law.


 


(b)(d)                      (i) None
of the funds or assets of such Obligor that are used to repay the Facilities
shall constitute property of, or shall be beneficially owned directly or
indirectly by, any Designated Person and (ii) no Designated Person shall
have any direct or indirect interest in such Obligor that would constitute a
violation of any Anti-Terrorism Laws.


 


(c)(d)                      No Obligor
shall, and each Obligor shall procure that none of its Subsidiaries will, fund
all or part of any payment under this Agreement out of proceeds derived from
transactions that violate the prohibitions set forth in any Anti-Terrorism Law.


 


20.32       Margin Regulations


 


No Obligor may
use any Loan, directly or indirectly, to buy or carry Margin Stock or to extend
credit to others for the purpose of buying or carrying Margin Stock.


 


20.33       ERISA


 


Each Obligor shall:


 


(a)           ensure that
neither it nor any ERISA Affiliate engages in a complete or partial withdrawal,
within the meaning of Sections 4203 and 4205 of ERISA, from any Multiemployer
Plan without the prior consent of the Majority Lenders;


 


(d)                           ensure that
any material liability imposed on it or any ERISA Affiliate pursuant to Title
IV of ERISA is paid and discharged when due;


 


(e)                           ensure that
neither it nor any ERISA Affiliate adopts an amendment to an Employee Plan
requiring the provision of security under ERISA or the Internal Revenue Code
without the prior consent of the Majority Lenders; and


 


(f)                            ensure that
no Employee Plan is terminated under Section 4041 of ERISA.


 


20.34       Excluded
Receivables


 


The Ultimate Parent shall, or shall procure that the relevant Obligor shall,
notify the Lender of any Excluded Receivable which falls into paragraph (c) of
the definition of “Excluded Receivable” promptly upon becoming aware of the
same


 


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21.           EVENTS OF DEFAULT


 


Each of the events
or circumstances set out in this Clause 21 is an Event of Default (save for
Clause 21.19 (Acceleration)).


 


21.1         Non-payment


 


An
Obligor does not pay on the due date any amount payable pursuant to a Finance
Document at the place at and in the currency in which it is expressed to be
payable unless:


 


(a)           its failure to pay is caused by
administrative or technical error; and


 


(b)           payment is made within five Business Days
of its due date.


 


21.2         Financial covenants and other obligations


 


(a)           Any requirement of Clause 19 (Financial covenants) including the Security Covenant under
Clause 19.2(e) is not satisfied or an Obligor does not comply with the
provisions of Clause 18 (Information
Undertakings) and/or Clause 20 (General Undertakings).


 


(b)           Clause 21.2 (a) above shall not apply
to Clause 18.6(a), Clause 20.1, Clause 20.2 and Clause 20.8 and 20.20.


 


21.3         Other obligations


 


(a)           An Obligor does not comply with any
provision of the Finance Documents (other than those referred to in Clause 21.1
(Non-payment) and Clause 21.2 (Financial covenants and other obligations) with the
exception of those referred to in Clause 21.2(b)).


 


(b)           No Event of Default under paragraph (a) above
will occur if the failure to comply is capable of remedy and is remedied within
15 Business Days of the earlier of (i) the Lender giving notice to the
Ultimate Parent or relevant Obligor and (ii) the Ultimate Parent or an
Obligor becoming aware of the failure to comply.


 


21.4         Misrepresentation


 


(a)           Any representation or statement made or deemed
to be made by an Obligor in the Finance Documents or any other document
delivered by or on behalf of any Obligor under or in connection with any
Finance Document is or proves to have been incorrect or misleading in any
material respect when made or deemed to be made.


 


(b)           No Event of Default under paragraph (a) above
will occur if the circumstances giving rise to the event described in paragraph
(a) above 


 


102

















 


are capable of remedy and are remedied within
15 Business Days of the earlier of the Lender giving notice to the Ultimate
Parent or the relevant Obligor and the Ultimate Parent or the relevant Obligor
becoming aware of the event described in paragraph (a).


 


21.5         Cross default


 


(a)           Any Financial Indebtedness of any member of
the Group is not paid when due nor within any originally applicable grace
period.


 


(b)           Any Financial Indebtedness of any member of
the Group is declared to be or otherwise becomes due and payable prior to its
specified maturity as a result of an event of default (however described).


 


(c)           Any commitment for any Financial
Indebtedness of any member of the Group is cancelled or suspended by a creditor
of any member of the Group as a result of an event of default (however
described).


 


(d)           Any creditor of any member of the Group
becomes entitled to declare any Financial Indebtedness of any member of the
Group due and payable prior to its specified maturity as a result of an event
of default (however described).


 


(e)           No Event of Default will occur under this
Clause 21.5 if the aggregate amount of Financial Indebtedness or commitment for
Financial Indebtedness falling within paragraphs (a) to (d) above is
less than €250,000.


 


21.6         Insolvency


 


(a)           A member of the Group is unable or admits inability
to pay its debts as they fall due or is deemed to or declared to be unable to
pay its debts under applicable law, suspends making payments on any of its
debts or, by reason of actual or anticipated financial difficulties, commences
negotiations with one or more of its creditors with a view to rescheduling any
of its indebtedness, where such indebtedness is in excess of €1,000,000.


 


(b)           The value of the assets of any member of
the Group is less than its liabilities (taking into account contingent and
prospective liabilities) where under the law of the Relevant
Jurisdiction of the member of the Group such fact results in a deemed inability
to repay its debts.


 


(c)           A moratorium is declared in respect of any
indebtedness of any member of the Group. 
If a moratorium occurs, the ending of the moratorium will not remedy any
Event of Default caused by that moratorium.


 


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21.7         Insolvency proceedings


 


(a)                                  Any corporate action, legal proceedings or
other procedure or step is taken in relation to:


 


(i)            the suspension of payments, a moratorium of
any indebtedness, winding-up, dissolution, administration or reorganisation (by
way of voluntary arrangement, scheme of arrangement or otherwise) of any member
of the Group, other then a solvent liquidation or reorganisation of any member
of the Group which is not an Obligor;


 


(ii)           a composition, compromise, assignment or
arrangement with any creditor of any member of the Group by reason of actual or
anticipated financial difficulties;


 


(iii)          the appointment of a liquidator (other than
in respect of a solvent liquidation of a member of the Group which is not an
Obligor), receiver, administrative receiver, administrator, compulsory manager
or other similar officer in respect of any member of the Group or any of its
assets; or


 


(iv)          enforcement of any Security over any assets
of any member of the Group and where the value of the indebtedness secured is
in excess of €500,000 (or its equivalent in other currencies),


 


or any analogous procedure or step is taken
in any jurisdiction.


 


(b)                                 Paragraph (a) shall not apply to:


 


(i)            any winding-up petition which is frivolous
or vexatious and is discharged, stayed or dismissed within (in the case of any
winding-up petition brought against any member of the Group in any jurisdiction
other than the United States) 10 days of commencement or (in the case of any
member of the Group in the United States) 45 days or, if earlier, the date on which it is advertised;


 


(ii)           any step or procedure contemplated by
paragraph (b) of the definition of Permitted Transaction; or


 


(iii)          a
Redomiciliation.


 


(c)                                  Any US Obligor:


 


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(i)            applies for,
or consents to, the appointment of, or the taking of possession by, a receiver,
custodian, trustee, examiner or liquidator of itself or of all or a substantial
part of its property;


 


(ii)           makes a
general assignment for the benefit of its creditors;


 


(iii)          commences a
voluntary case under US Bankruptcy Law;


 


(iv)          files a
petition with respect to itself seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganisation, liquidation, dissolution,
arrangement or winding up, or composition or readjustment of debts;


 


(v)           takes any
corporate action for the purpose of effecting any of the foregoing with respect
to itself;


 


(vi)          is unable or
admits inability to pay its debts as they fall due; or


 


(vii)         is the
subject of involuntary proceedings under US Bankruptcy Law and such proceeding is not
dismissed within 60 days of its commencement.


 


21.8         Creditors’ process


 


Any
expropriation, attachment, sequestration, distress or execution or any
analogous process in any jurisdiction affects any asset or assets of any member
of the Group having an aggregate value of $1,000,000 or more (or its equivalent
in other currencies) and is not discharged within 15 Business Days.


 


21.9         Unlawfulness and invalidity


 


(a)           It is or becomes unlawful for an Obligor to
perform any of its material obligations under the Finance Documents or any
Transaction Security created or expressed to be created or evidenced by the
Transaction Security Documents ceases (subject to the Legal Reservations) to be
effective.


 


(b)           Any obligation or obligations of any
Obligor under any Finance Documents are not (subject to the Legal Reservations)
or cease to be legal, valid, binding or enforceable and the cessation
individually or cumulatively materially and adversely affects the interests of the
Lenders under the Finance Documents.


 


(c)           Any Finance Document ceases (subject to the
Legal Reservations) to be in full force and effect or any Transaction Security
ceases to be legal, valid, binding, enforceable or effective or is alleged by a
party to it (other than the Lender) to be ineffective.


 


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21.10       Cessation of business


 


Any member of
the Group whose
Current Assets minus Current Liabilities exceed €5,000,000 suspends or
ceases, without the
consent of the Lender, to carry on (or threatens to suspend or cease to
carry on) all or a material part of its business by reference to the Group as a
whole except as a result of a Permitted Disposal or a Permitted Transaction.


 


21.11       Change of ownership


 


An Obligor ceases to own at least the same
percentage of shares in a Material Company as on the date of this Agreement
except, in either case, as a result of a disposal which is a Permitted Disposal
or a Permitted Transaction.


 


21.12       Change of management


 


Alexandros
Moukas, Chris Kaskavelis or Menelaos Scouloudis ceases to be employed by the
Parent or the Ultimate Parent and a replacement person approved in writing by
the Lender (such approval not to be unreasonably withheld or delayed) has not
given a legally binding acceptance to an offer of employment and resigned from
his/her existing employment within 120 days of that cessation.  This Event of Default shall also apply to any
replacement person as if references in this Clause to Alexandros Moukas, Chris
Kaskavelis or Menelaos Scouloudis were references to that replacement person.


 


21.13       Audit qualification


 


The Auditors
of the Group qualify the audited annual consolidated financial statements of
the Utimate Parent on a going concern basis or in any other way that may be, in
reasonable opinion of the Lender, material in the context of the Facility.


 


21.14       Expropriation


 


The authority
or ability of any Obligor to conduct its business is limited or wholly or
substantially curtailed by any seizure, expropriation, nationalisation,
intervention, restriction or other action by or on behalf of any governmental,
regulatory or other authority or other person in relation to any Obligor or any
of its material assets.


 


21.15       Repudiation and rescission of agreements


 


An Obligor rescinds or purports to rescind
or repudiates or purports to repudiate a Finance Document or any of the
Transaction Security or evidences an intention to rescind or repudiate a
Finance Document or any Transaction Security.


 


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21.16       Litigation


 


Save in respect of those connected to or arising
from the matters disclosed to the Lender either in writing prior to the date of
this Agreement or verbally to Phokion Potamianos on 14 May 2009, any litigation, arbitration,
administrative, governmental, regulatory or other investigations, proceedings
or disputes are commenced or threatened in relation to the Transaction
Documents or the transactions contemplated in the Transaction Documents or
against any member of the Group or its assets which has or is reasonably likely
to be adversely determined and relate to an amount where the potential
liability is in excess of €1,000,000 (or the equivalent in other currencies)
and which, if adversely determined, might reasonably be expected to have a
Material Adverse Effect.


 


21.17       Material adverse change


 


Any event or
circumstance occurs which the Lender reasonably believes has or is reasonably
likely to have a Material Adverse Effect.


 


21.18       ERISA


 


(a)           Any of the following events results in the
imposition of or granting of security, or the incurring of a liability or a
material risk of incurring a liability that individually and/or in the
aggregate, has or could reasonably be expected to have a Material Adverse
Effect:


 


(b)           any ERISA Event occurs or is reasonably
expected to occur;


 


(c)           any Obligor or ERISA Affiliate incurs or is
likely to incur a liability to or on account of a Multiemployer Plan as a
result of a violation of Section 515 of ERISA or under Section 4201,
4204 or 4212(c) of ERISA;


 


(d)           the fair market value of the assets of any
Employee Plan subject to Title IV of ERISA is not at least equal to the present
value of the “benefit liabilities” (within the meaning of Section 4001(a)(16)
of ERISA) under that Employee Plan using the actuarial assumptions and methods
used by the actuary to that Employee Plan in its most recent valuation of that
Employee Plan; or


 


(e)           any Obligor or ERISA Affiliate incurs or is
likely to incur a liability to or on account of an Employee Plan under Section 409,
502(i) or 502(I) of ERISA or Section 4971 or 4975 of the
Internal Revenue Code.


 


21.19       Acceleration


 


(a)           On and at any time after the occurrence of
an Event of Default which is continuing the Lender may by notice to the Ultimate
Parent:


 


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(i)            cancel the Total Commitments at which time
they shall immediately be cancelled;


 


(ii)           declare that all or part of the
Utilisations, together with accrued interest, and all other amounts accrued or
outstanding under the Finance Documents be immediately due and payable, at
which time they shall become immediately due and payable;


 


(iii)          declare that all or part of the
Utilisations be payable on demand, at which time they shall immediately become
payable on demand by the Lender;


 


(iv)          exercise any or all of its rights,
remedies, powers or discretions under the Finance Documents including, without
prejudice to the generality of the foregoing, enforce and exercise all rights
under the Transaction Security.


 


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SECTION 9


 


CHANGES
TO PARTIES


 


22.           CHANGES TO THE LENDERS


 


22.1         Assignments and transfers by the Lender


 


(a)           The Lender (for the purposes of this Clause
22, the “Existing Lender”) may:


 


(i)            assign all (but not part) of its rights; or


 


(ii)           transfer by novation all (but not part) of
its rights and obligations,


 


under any Finance Document to a bank or financial
institution or to a trust, fund or any other entity (the “New Lender”)
provided that Phokian Potamianos is involved with the management of the New Lender and any payments which
would have been made by a Borrower to the Lender on the date immediately prior
to the proposed transfer without any increased payments under Clause 12.2 (Tax gross-up) can also be made to the proposed New Lender
without any increased payment under Clause 12.2 (Tax gross-up).


 


23.           CHANGES TO THE OBLIGORS  AND ELIGIBLE RECEIVABLES


 


23.1         Assignment and transfers by Obligors


 


No
Obligor or any other member of the Group may assign any of its rights or
transfer any of its rights or obligations under the Finance Documents.


 


23.2         Additional Borrowers


 


(a)           The Ultimate Parent may request that it or
any of its wholly owned Subsidiaries which is not a Dormant Subsidiary becomes
a Borrower.  That Subsidiary or the
Ultimate Parent (as the case may be) shall become a Borrower if:


 


(i)            the Ultimate Parent and that Subsidiary
deliver to the Lender a duly completed and executed Accession Deed;


 


(ii)           the Subsidiary or the Ultimate Parent (as
the case may be) is (or becomes) a Guarantor prior to becoming a Borrower;


 


(iii)          the Ultimate Parent confirms that no
Default is continuing or would occur as a result of that Subsidiary becoming an
Additional Borrower; and


 


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(iv)          the Lender has received all of the
documents and other evidence listed in Part II of Schedule 2 (Conditions precedent) in relation to that Additional
Borrower, each in form and substance satisfactory to the Lender.


 


(b)           The Lender shall notify the Ultimate Parent
promptly upon being satisfied that it has received (in form and substance
satisfactory to it) all the documents and other evidence listed in Part II
of Schedule 2 (Conditions precedent).


 


23.3         Resignation of a Borrower


 


(a)           In this Clause 23.3, Clause 23.5 (Resignation of a Guarantor) and Clause 23.7 (Resignation and release of Security on disposal), “Third Party Disposal” means the disposal of an Obligor to a
person which is not a member of the Group where that disposal is permitted
under Clause 20.11 (Disposals) or
made with the approval of the Majority Lenders (and the Ultimate Parent has
confirmed this is the case).


 


(b)           The Ultimate Parent may request that a
Borrower ceases to be a Borrower by delivering to the Lender a Resignation
Letter.


 


(c)           The Lender shall accept a Resignation
Letter and notify the Ultimate Parent of its acceptance if:


 


(i)            the Ultimate Parent has confirmed that no
Default is continuing or would result from the acceptance of the Resignation
Letter;


 


(ii)           the Borrower is under no actual or
contingent obligations as a Borrower under any Finance Documents;


 


(iii)          where the Borrower is also a Guarantor
(unless its resignation has been accepted in accordance with Clause 23.5 (Resignation of a Guarantor)), its obligations in its
capacity as Guarantor continue to be legal, valid, binding and enforceable and
in full force and effect (subject to the Legal Reservations) and the amount
guaranteed by it as a Guarantor is not decreased (and the Ultimate Parent has
confirmed this is the case).


 


(d)           Upon notification by the Lender to the
Ultimate Parent of its acceptance of the resignation of a Borrower, that
company shall cease to be a Borrower and shall have no further rights or
obligations under the Finance Documents as a Borrower.


 


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23.4         Additional Guarantors


 


(a)           The Ultimate Parent may request that any of
its Subsidiaries become a Guarantor.


 


(b)           The Ultimate Parent shall procure that any
other member of the Group which is a Material Company (other than Velti SA or any other member of the
Group incorporated in Greece) shall, as soon as reasonably practicable
(and in any event within 60 days) after the date of a Material Companies
Certificate identifying them as a Material Company, become an Additional
Guarantor and, subject to the Agreed Security Principles, grant Security as the
Lender may reasonably require, with the exception of:


 


(i)            where a Material Company is not a wholly
owned Subsidiary and that Material Company’s minority shareholder or minority
shareholders are not within the control of the Ultimate Parent and prevent that
Material Company from acceding as an Additional Guarantor, or from granting
Security; and


 


(ii)           AdInfuse, Inc which shall, within 60 days
of the date of this Agreement become an Additional Guarantor and, subject to
the Agreed Security Principles, grant Security as the Lender may reasonably
require.


 


(c)           A member of the Group shall become an
Additional Guarantor if:


 


(i)            the Ultimate Parent and the proposed
Additional Guarantor deliver to the Lender a duly completed and executed
Accession Deed; and


 


(ii)           the Lender has received all of the
documents and other evidence listed in Part II of Schedule 2 (Conditions Precedent) in relation to that Additional
Guarantor, each in form and substance satisfactory to the Lender.


 


(d)           The Lender shall notify the Ultimate Parent
promptly upon being satisfied that it has received (in form and substance
satisfactory to it) all the documents and other evidence listed in Part II
of Schedule 2 (Conditions precedent).


 


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23.5         Resignation of a Guarantor


 


(a)           The Ultimate Parent may request that a
Guarantor (other than the Ultimate Parent) ceases to be a Guarantor by
delivering to the Lender a Resignation Letter if:


 


(i)            that Guarantor is being disposed of by way
of a Third Party Disposal (as defined in Clause 23.3 (Resignation
of a Borrower)) and
the Ultimate Parent has confirmed this is the case; or


 


(ii)           the Lenders has consented to the
resignation of that Guarantor.


 


(b)           The Lender shall accept a Resignation
Letter and notify the Ultimate Parent of its acceptance if:


 


(i)            the Ultimate Parent has confirmed that no
Default is continuing or would result from the acceptance of the Resignation
Letter;


 


(ii)           no payment is due from the Guarantor under
Clause 16.1 (Guarantee and indemnity);


 


(iii)          where the Guarantor is also a Borrower, it
is under no actual or contingent obligations as a Borrower and has resigned and
ceased to be a Borrower under Clause 23.3 (Resignation of a Borrower);
and


 


(iv)          the Ultimate Parent has confirmed that it
shall ensure that the Disposal Proceeds will be applied in accordance with
Clause 8.2 (Disposal, Insurance and
Acquisition Proceeds and Excess Cashflow).


 


(c)           The resignation of that Guarantor shall not
be effective until the date of the relevant Third Party Disposal at which time
that company shall cease to be a Guarantor and shall have no further rights or
obligations under the Finance Documents as a Guarantor.


 


23.6         Repetition of Representations


 


Delivery
of an Accession Deed constitutes confirmation by the relevant Subsidiary that
the representations and warranties referred to in paragraph (e) of
Clause 17.28 (Times when representations
made) are true and correct in relation to it as at the date of
delivery as if made by reference to the facts and circumstances then existing.


 


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23.7         Resignation and release of security on disposal


 


If a
Borrower or Guarantor is or is proposed to be the subject of a Third Party
Disposal then:


 


(a)           where that Borrower or Guarantor created
Transaction Security over any of its assets or business in favour of the
Lender, or Transaction Security in favour of the Lender was created over the
shares (or equivalent) of that Borrower or Guarantor, the Lender shall, at the
cost and request of the Ultimate Parent, release those assets, business or
shares (or equivalent) and issue certificates of non-crystallisation;


 


(b)           the resignation of that Borrower or
Guarantor and related release of Transaction Security referred to in paragraph (a) above
shall not become effective until the date of that disposal; and


 


(c)           if the disposal of that
Borrower or Guarantor is not made, the Resignation Letter of that Borrower or
Guarantor and the related release of Transaction Security referred to in
paragraph (a) above shall have no effect and the obligations of the
Borrower or Guarantor and the Transaction Security created or intended to be
created by or over that Borrower or Guarantor shall continue in such force and
effect as if that release had not been effected.


 


23.8         Release
of Transaction Security over Eligible Receivables and Excluded Investments


 


In the event that an Eligible
Receivable which is or would be subject to Transaction Security becomes an
Excluded Receivable or if any Investment is or becomes an Excluded Investment,
the Lender will, as soon as practicable following a request from an Obligor
take all action (including but not limited to the execution of all documents which
are necessary in connection with such release or the transfer of the Excluded
Receivables or Excluded Investment back to the relevant Obligor) to release the
Transaction Security to which such Excluded Receivable is subject.


 


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SECTION 10


 


ADMINISTRATION


 


24.           PAYMENT MECHANICS


 


24.1         Payments to the Lender


 


(a)           On each date on which an Obligor is
required to make a payment under a Finance Document, that Obligor shall make
the same available to the Lender (unless a contrary indication appears in a
Finance Document) for value on the due date at the time and in such funds
specified by the Lender as being customary at the time for settlement of
transactions in the relevant currency in the place of payment.


 


(b)           Payment shall be made to such account in
the principal financial centre of the country of that currency (or, in relation
to euro, in a principal financial centre in a Participating Member State or
London) with such bank as the Lender specifies.


 


24.2         Distributions to an Obligor


 


The
Lender may (with the consent of the Obligor or in accordance with Clause 25 (Set-Off)) apply any amount received by it for that Obligor
in or towards payment (on the date and in the currency and funds of receipt) of
any amount due from that Obligor under the Finance Documents or in or towards
purchase of any amount of any currency to be so applied.


 


24.3         Partial payments


 


(a)           If the Lender receives a payment for
application against amounts due in respect of any Finance Documents that is
insufficient to discharge all the amounts then due and payable by an Obligor
under those Finance Documents, the Lender shall apply that payment towards the
obligations of that Obligor under those Finance Documents in the following
order:


 


(i)            first, in or towards payment of any unpaid fees,
costs and expenses of the Lender under those Finance Documents;


 


(ii)           secondly, in or towards payment of any accrued
interest, fee or commission due but unpaid under those Finance Documents;


 


(iii)          thirdly, in or towards payment of any principal
due but unpaid under those Finance Documents; and


 


(iv)          fourthly, in or towards payment of any other sum
due but unpaid under the Finance Documents.


 


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(b)           The Lender may vary the order set out in
paragraphs (a)(ii) to (iv) above.


 


(c)           Paragraphs (a) and (b) above will
override any appropriation made by an Obligor.


 


24.4         No set-off by Obligors


 


All
payments to be made by an Obligor under the Finance Documents shall be calculated
and be made without (and free and clear of any deduction for) set-off or
counterclaim.


 


24.5         Business Days


 


(a)           Any payment which is due to be made on a
day that is not a Business Day shall be made on the next Business Day in the
same calendar month (if there is one) or the preceding Business Day (if there
is not).


 


(b)           During any extension of the due date for
payment of any principal or Unpaid Sum under this Agreement interest is payable
on the principal or Unpaid Sum at the rate payable on the original due date.


 


24.6         Currency of account


 


(a)           Subject to paragraphs (b) to (e) below,
the Base Currency is the currency of account and payment for any sum due from
an Obligor under any Finance Document.


 


(b)           A repayment of a Utilisation or Unpaid Sum
or a part of a Utilisation or Unpaid Sum shall be made in the currency in which
that Utilisation or Unpaid Sum is denominated on its due date.


 


(c)           Each payment of interest shall be made in
the currency in which the sum in respect of which the interest is payable was
denominated when that interest accrued.


 


(d)           Each payment in respect of costs, expenses
or Taxes shall be made in the currency in which the costs, expenses or Taxes
are incurred.


 


(e)           Any amount expressed to be payable in a
currency other than the Base Currency shall be paid in that other currency.


 


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24.7         Change of currency


 


(a)           Unless otherwise prohibited by law, if more
than one currency or currency unit are at the same time recognised by the central
bank of any country as the lawful currency of that country, then:


 


(i)            any reference in the Finance Documents to,
and any obligations arising under the Finance Documents in, the currency of
that country shall be translated into, or paid in, the currency or currency
unit of that country designated by the Lender (after consultation with the
Ultimate Parent); and


 


(ii)           any translation from one currency or
currency unit to another shall be at the official rate of exchange recognised
by the central bank for the conversion of that currency or currency unit into
the other, rounded up or down by the Lender (acting reasonably).


 


(b)           If a change in any currency of a country
occurs, this Agreement will, to the extent the Lender (acting reasonably and
after consultation with the Ultimate Parent) specifies to be necessary, be
amended to comply with any generally accepted conventions and market practice
and otherwise to reflect the change in currency.


 


25.           SET-OFF


 


The
Lender may set off any matured obligation due from an Obligor under the Finance
Documents (to the extent beneficially owned by the Lender) against any matured
obligation owed by the Lender to that Obligor, regardless of the place of
payment, booking branch or currency of either obligation.  If the obligations are in different
currencies, the Lender may convert either obligation at a market rate of
exchange in its usual course of business for the purpose of the set-off.


 


26.           NOTICES


 


26.1         Communications in writing


 


Any
communication to be made under or in connection with the Finance Documents
shall be made in writing and, unless otherwise stated, may be made by fax or
letter.


 


26.2         Addresses


 


The
address and fax number (and the department or officer, if any, for whose
attention the communication is to be made) of each Party for any communication
or document to be made or delivered under or in connection with the Finance
Documents is:


 


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(a)           in the case of the Parent or the Original
Obligors, that identified with its name below;


 


(b)           in the case of any other Obligor (including
the Ultimate Parent), that notified in writing to the Lender on or prior to the
date on which it becomes a Party; and


 


(c)           in the case of the Lender, that identified
with its name below,


 


or any
substitute address, fax number or department or officer as the Party may notify
to the Lender (or the Lender may notify to the other Parties, if a change is
made by the Lender) by not less than five Business Days’ notice.


 


26.3         Delivery


 


(a)           Any communication or document made or
delivered by one person to another under or in connection with the Finance
Documents will only be effective:


 


(i)            if by way of fax, when received in legible
form; or


 


(ii)           if by way of letter, when it has been left
at the relevant address or five Business Days after being deposited in the post
postage prepaid in an envelope addressed to it at that address,


 


and, if
a particular department or officer is specified as part of its address details
provided under Clause 26.2 (Addresses), if
addressed to that department or officer.


 


(b)           Any communication or document to be made or
delivered to the Lender will be effective only when actually received by the
Lender and then only if it is expressly marked for the attention of the department
or officer identified with the Lender’s signature below (or any substitute
department or officer as the Lender shall specify for this purpose).


 


(c)           Any communication or document made or
delivered to the Parent prior to the First Restatement Date or the Ultimate
Parent thereafter in each case in accordance with this Clause 26.3 will be
deemed to have been made or delivered to each of the Obligors.


 


26.4         Notification of address and fax number


 


Promptly
upon receipt of notification of an address or fax number or change of address
or fax number pursuant to Clause 26.2 (Addresses) or
changing its own address or fax number, the Lender shall notify the other
Parties.


 


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26.5         Electronic communication


 


(a)           Any communication to be made between the
Lender and the Ultimate Parent under or in connection with the Finance
Documents may be made by electronic mail or other electronic means, if the
Lender and the Ultimate Parent:


 


(i)            subject to paragraph (ii) below, use
their electronic mail address identified with its name below; and


 


(ii)           notify each other of any change to their
address.


 


(b)           Any electronic communication made between
the Lender and the Ultimate Parent will be effective only when received in
readable form.


 


26.6         English language


 


(a)           Any notice given under or in connection
with any Finance Document must be in English.


 


(b)           All other documents provided under or in
connection with any Finance Document must be:


 


(i)            in English; or


 


(ii)           if not in English, and if so required by
the Lender, accompanied by a certified English translation and, in this case,
the English translation will prevail unless the document is a constitutional,
statutory or other official document.


 


27.           CALCULATIONS AND
CERTIFICATES


 


27.1         Accounts


 


In any
litigation or arbitration proceedings arising out of or in connection with a
Finance Document, the entries made in the accounts maintained by the Lender are
prima facie evidence of the matters to
which they relate.


 


27.2         Certificates and determinations


 


Any
certification or determination by the Lender of a rate or amount under any
Finance Document is, in the absence of manifest error, conclusive evidence of
the matters to which it relates. All certificates or statements issued by a
director or secretary of an Obligor under or pursuant to the terms of the
Finance Documents shall be issued (and treated as issued whether or not
expressly so stated) by that director or secretary on behalf of the relevant
Obligor without personal liability, save in the case of wilful default or
fraud. A director or officer 


 


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of an
Obligor may enforce the benefit of this Clause notwithstanding Clause 1.3 (Third Party Rights).


 


27.3         Day count convention


 


Any
interest, commission or fee accruing under a Finance Document will accrue from
day to day and is calculated on the basis of the actual number of days elapsed
and a year of 360 days or, in any case where the practice in the Relevant
Interbank Market differs, in accordance with that market practice.


 


28.           PARTIAL INVALIDITY


 


If, at
any time, any provision of the Finance Documents is or becomes illegal, invalid
or unenforceable in any respect under any law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions nor the
legality, validity or enforceability of such provision under the law of any
other jurisdiction will in any way be affected or impaired.


 


29.           REMEDIES AND WAIVERS


 


No
failure to exercise, nor any delay in exercising, on the part of the Lender,
any right or remedy under the Finance Documents shall operate as a waiver, nor
shall any single or partial exercise of any right or remedy prevent any further
or other exercise or the exercise of any other right or remedy.  The rights and remedies provided in this
Agreement are cumulative and not exclusive of any rights or remedies provided
by law.


 


30.           AMENDMENTS AND WAIVERS


 


30.1         Required consents


 


Any
term of the Finance Documents may be amended or waived only with the consent of
the Lender and the Obligors party to the relevant Finance Document and any such
amendment or waiver will be binding on all Parties.


 


30.2         Velti SA Accession Date


 


Notwithstanding
any contrary provisions in any of the Finance Documents and solely in respect
of the period between the date of this Agreement and the Velti SA Accession
Date, no transaction, matter, act or thing involving or relating to Velti SA
which breaches the terms of such documents but would not have done were Velti
SA a Borrower and an Obligor shall be treated as a breach of any such Finance
Document.


 


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31.                                 CONFIDENTIALITY


 


31.1                           Confidential Information


 


The
Lender agrees to keep all Confidential Information confidential and not to
disclose it to anyone, save to the extent permitted by Clause 31.2 (Disclosure of Confidential Information),
and to ensure that all Confidential Information is protected with security
measures and a degree of care that would apply to its own confidential
information.


 


31.2                           Disclosure of Confidential Information


 


The
Lender may disclose:


 


(a)                                  to any of its Affiliates and
Related Funds and any of its or their officers, directors, employees,
professional advisers, auditors, partners, direct or indirect shareholders,
direct or indirect investors and Representatives such Confidential Information
as the Lender shall consider appropriate if any person to whom the Confidential
Information is to be given pursuant to this paragraph (a) is informed in
writing of its confidential nature and that some or all of such Confidential
Information may be price-sensitive information except that there shall be no
such requirement to so inform if the recipient is subject to professional
obligations to maintain the confidentiality of the information or is otherwise
bound by requirements of confidentiality in relation to the Confidential
Information;


 


(b)                                 to any person:


 


(i)                                     to (or through) whom it
assigns or transfers (or may potentially assign or transfer) all or any of its
rights and/or obligations under one or more Finance Documents and to any of
that person’s Affiliates, Related Funds, Representatives and professional
advisers;


 


(ii)                                  appointed by any Lender or by
a person to whom paragraph (b)(i) or (ii) above applies to receive
communications, notices, information or documents delivered pursuant to the
Finance Documents on its behalf;


 


(iii)                               who invests in or otherwise
finances (or may potentially invest in or otherwise finance), directly or
indirectly, any transaction referred to in paragraph b(i) or (b)(ii) above;


 


(iv)                              to whom information is
required or requested to be disclosed by any governmental, banking, taxation or
other regulatory authority or similar body, the rules of any relevant
stock exchange or pursuant to any applicable law or regulation;


 


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(v)                                 to whom information is
required to be disclosed in connection with, and for the purposes of, any
litigation, arbitration, administrative or other investigations, proceedings or
disputes;


 


(vi)                              who is a Party; or


 


(vii)                           with the consent of the
Ultimate Parent;


 


in each
case, such Confidential Information as the Lender shall consider appropriate
if:


 


(A)                              in relation to paragraphs
(b)(i), (b)(ii) and b(iii) above, the person to whom the Confidential
Information is to be given has entered into a Confidentiality Undertaking
except that there shall be no requirement for a Confidentiality Undertaking if
the recipient is a professional adviser and is subject to professional
obligations to maintain the confidentiality of the Confidential Information;


 


(B)                                in relation to paragraph (b)(iv) above,
the person to whom the Confidential Information is to be given has entered into
a Confidentiality Undertaking or is otherwise bound by requirements of
confidentiality in relation to the Confidential Information they receive and is
informed that some or all of such Confidential Information may be
price-sensitive information;


 


(C)                                in relation to paragraphs (b)(iv) and
(b)(v) above, the person to whom the Confidential Information is to be
given is informed of its confidential nature and that some or all of such
Confidential Information may be price-sensitive information except that there
shall be no requirement to so inform if, in the opinion of the Lender, it is
not practicable so to do in the circumstances.


 


31.3                           Entire agreement


 


This
Clause 31 (Confidentiality) constitutes
the entire agreement between the Parties in relation to their obligations under
the Finance Documents regarding Confidential Information and supersedes any
previous agreement, whether express or implied, regarding Confidential
Information.


 


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31.4                           Inside information


 


The
Lender acknowledges that some or all of the Confidential Information is or may
be price-sensitive information and that the use of such information may be
regulated or prohibited by applicable legislation including securities law
relating to insider dealing and market abuse and the Lender undertakes not to
use any Confidential Information for any unlawful purpose.


 


31.5                           Notification of disclosure


 


The
Lender agrees (to the extent permitted by law and regulation) to inform the
Ultimate Parent:


 


(a)                                  of the circumstances of any
disclosure of Confidential Information made pursuant to paragraph (b)(iv) of
Clause 31.2 (Disclosure of Confidential
Information) except where such disclosure is made to any of the
persons referred to in that paragraph during the ordinary course of its
supervisory or regulatory function; and


 


(b)                                 upon becoming aware that
Confidential Information has been disclosed in breach of this Clause 31 (Confidentiality).


 


31.6                           Continuing obligations


 


The
obligations in this Clause 31 (Confidentiality)
are continuing and, in particular, shall survive and remain binding on the
Lender for a period of twelve months from the date of the termination of this
Agreement.


 


32.                                 COUNTERPARTS


 


Each
Finance Document may be executed in any number of counterparts, and this has
the same effect as if the signatures on the counterparts were on a single copy
of the Finance Document.


 


33.                                 USA PATRIOT ACT


 


The
Lender hereby notifies each Obligor that pursuant to the requirements of the
USA Patriot Act, the Lender is required to obtain, verify and record
information that identifies such Obligor, which information includes the name
and address of such Obligor and other information that will allow the Lender to
identify such Obligor in accordance with the USA Patriot Act.


 


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SECTION 11


 


GOVERNING
LAW AND ENFORCEMENT


 


34.                                 GOVERNING LAW


 


This
Agreement and any non-contractual obligations arising out of or in connection
with it are governed by English law.


 


35.                                 ENFORCEMENT


 


35.1                           Jurisdiction of English courts


 


(a)                                  The courts of England have
exclusive jurisdiction to settle any dispute arising out of or in connection
with this Agreement (including a dispute relating to the existence, validity or
termination of this Agreement) or any non-contractual obligation arising out of
or in connection with this Agreement (a “Dispute”).


 


(b)                                 The Parties agree that the
courts of England are the most appropriate and convenient courts to settle
Disputes and accordingly no Party will argue to the contrary.


 


(c)                                  This Clause 35.1 is for the
benefit of the Lender.  As a result, the
Lender shall not be prevented from taking proceedings relating to a Dispute in
any other courts with jurisdiction.  To
the extent allowed by law, the Lender may take concurrent proceedings in any
number of jurisdictions.


 


35.2                           Service of process


 


(a)                                  Without prejudice to any other
mode of service allowed under any relevant law, each Obligor (other than an
Obligor incorporated in England and Wales):


 


(i)                                     irrevocably appoints the
Parent as its agent for service of process in relation to any proceedings
before the English courts in connection with any Finance Document (and the
Parent by its execution of this Agreement, accepts that appointment); and


 


(ii)                                  agrees that failure by an
agent for service of process to notify the relevant Obligor of the process will
not invalidate the proceedings concerned.


 


(b)                                 If any person appointed as an
agent for service of process is unable for any reason to act as agent for
service of process, the Parent (on behalf of all the Obligors) must immediately
(and in any event within five Business Days of such event taking place) appoint
another agent on 


 


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terms acceptable to the Lender.  Failing this, the Lender may appoint another
agent for this purpose.


 


(c)                                  Each Obligor expressly agrees
and consents to the provisions of this Clause 35 and Clause 34 (Governing law).


 


This
Agreement has been entered into on the date stated at the beginning of this
Agreement.


 


124

















 


SCHEDULE 1


THE ORIGINAL PARTIES


 


Part I


The Original Obligors


 


	
  Name
  of Original Borrower

  	
   

  	
  Registration
  number (or equivalent, if any)

  Jurisdiction of Incorporation

  
	
   

  	
   

  	
   

  
	
  Velti
  Plc (to be renamed Velti Limited on or after the First Restatement Date)

  	
   

  	
  5552480,
  England

  



 


	
  Name
  of Additional Borrowers as at the

  First Restatement Date

  	
   

  	
  Registration
  number (or equivalent, if any)

  Jurisdiction of Incorporation

  
	
   

  	
   

  	
   

  
	
  Velti
  SA

  	
   

  	
  Serial no 46001/01AT/B/00/212, Greece

  



 


	
  Name of Original Guarantor

  	
   

  	
  Registration
  number (or equivalent, if any)

  Jurisdiction of Incorporation

  
	
   

  	
   

  	
   

  	
   

  
	
  Velti
  Plc (to be renamed Velti Limited on or after the First Restatement Date)

  	
   

  	
  5552480,
  England

  
	
   

  	
   

  	
   

  	
   

  
	
  Velti
  dR Limited

  	
   

  	
  5955521,
  England

  
	
   

  	
   

  	
   

  	
   

  
	
  Velti
  M-Telecom Limited

  	
   

  	
  6113284,
  England

  
	
   

  	
   

  	
   

  
	
  Velti
  US Holdings Inc

  	
   

  	
  United States of America

  
	
   

  	
   

  	
   

  
	
  Velti
  Platforms and Services Limited

  	
   

  	
  203280,Cyprus

  



 


	
  Name of Additional Guarantors as at the

  First Restatement Date

  	
   

  	
  Registration number (or equivalent, if any)

  Jurisdiction of Incorporation

  
	
   

  	
   

  	
   

  
	
  Ad
  Infuse, Inc

  	
   

  	
  United
  States of America

  
	
   

  	
   

  	
   

  
	
  Zelus
  plc (to be renamed Velti Plc)

  	
   

  	
  103899
  Jersey

  



 


125

















 


Part II


The Original Lender


 


	
  Name of Original Lender

  	
   

  	
  Term Facility

  Commitment

  	
   

  	
  Revolving Facility Commitment

  	
   

  
	
  Thor Luxembourg Sarl

  	
   

  	
  $

  	
  10,000,000

  	
   

  	
  €

  	
  2,750,000

  	
   

  
								



 


126

















 


SCHEDULE 2


CONDITIONS PRECEDENT


 


Part I


Conditions precedent


 


1.                                       Obligors


 


(a)                                  A copy of the Constitutional
Documents and of the constitutional documents of each other Original Obligor.


 


(b)                                 A copy of a resolution of the
board of directors of each Original Obligor:


 


(i)                                     approving the terms of, and
the transactions contemplated by, the Transaction Documents to which it is a
party and resolving that it execute, deliver and perform the Transaction
Documents to which it is a party;


 


(ii)                                  authorising a specified person
or persons to execute the Finance Documents to which it is a party on its
behalf;


 


(iii)                               authorising a specified person
or persons, on its behalf, to sign and/or despatch all documents and notices
(including, if relevant, any Utilisation Request and Selection Notice) to be
signed and/or despatched by it under or in connection with the Finance
Documents to which it is a party; and


 


(iv)                              in the case of an Obligor
other than the Parent, authorising the Parent to act as its agent in connection
with the Finance Documents.


 


(c)                                  A specimen of the signature of
each person authorised by the resolution referred to in paragraph (b) above
in relation to the Finance Documents and related documents.


 


(d)                                 A copy of a resolution signed
by all the holders of the issued shares in each Original Guarantor (other than
the Parent), approving the terms of, and the transactions contemplated by, the
Finance Documents to which the Original Guarantor is a party.


 


(e)                                  A copy of a resolution of the
board of directors of each corporate shareholder of each Original Guarantor
(other than the Parent)  approving the terms of the resolution referred
to in paragraph (e) above.


 


127

















 


(f)                                    A certificate of the Parent
(signed by a director) confirming that borrowing or guaranteeing or securing,
as appropriate, the Total Commitments would not cause any borrowing, guarantee,
security or similar limit binding on any Original Obligor to be exceeded.


 


(g)                                 The Announcement.


 


(h)                                 A certificate of an authorised
signatory of the Parent or other relevant Original Obligor certifying that each
copy document relating to it specified in paragraphs 1(a) to 1(f), 5(a) to
5(d) and 5(f) of this Part I of Schedule 2 is correct, complete
and in full force and effect and has not been amended or superseded as at a
date no earlier than the date of this Agreement.


 


(i)                                     If such Original Obligor is a
US Obligor, a certificate as to the existence and good standing (including
verification of tax status, if available) of the US Obligor from the
appropriate governmental authorities in such US Obligor’s jurisdiction of
organisation and in each other jurisdiction where such US Obligor is qualified
to do business (if any),  in form and
substance satisfactory to the Lender and its counsel.


 


(j)                                     If such Original Obligor is a
US Obligor, a solvency certificate in form and substance satisfactory to the
Lender and its counsel.


 


(k)                                  A certificate of incumbency
issued by the secretary and board of directors of any Original Obligor
incorporated in Cyprus.


 


2.                                       Finance Documents


 


(a)                                  This Agreement executed by the
members of the Group party to this Agreement.


 


(b)                                 The Board Observer Side Letter
executed by the Parent.


 


(c)                                  At least two originals of the
following Transaction Security Documents executed by the Original Obligors
specified below opposite the relevant Transaction Security Document:


 


128

















 


	
  Name
  of Original Obligor

  	
   

  	
  Transaction
  Security Document

  
	
   

  	
   

  	
   

  
	
  Velti
  plc

  	
   

  	
  English
  law debenture including a future assignment of the Structural Intra-Group
  Documents and an English law governed pledge over the entire issued share
  capital of Velti SA

  
	
   

  	
   

  	
   

  
	
  Velti
  plc

  	
   

  	
  Cypriot
  law pledge agreement over the entire issued share capital of Velti Platforms
  and Services Ltd.

  
	
   

  	
   

  	
   

  
	
  Velti
  plc

  	
   

  	
  US
  law Security over the entire issued share capital of Velti US Holdings Inc

  
	
   

  	
   

  	
   

  
	
  Velti
  dR Limited

  	
   

  	
  English
  law debenture

  
	
   

  	
   

  	
   

  
	
  Velti
  North M-Telecom Limited

  	
   

  	
  English
  law debenture

  
	
   

  	
   

  	
   

  
	
  Velti
  Platforms and Services Ltd.

  	
   

  	
  Cypriot
  law charge over Intellectual
  Property, bank accounts and Eligible Receivables

  
	
   

  	
   

  	
   

  
	
  Velti
  US Holdings Inc

  	
   

  	
  US
  law Security Agreement over intellectual property, bank accounts and Eligible Receivables

  



 


(l)                                     A copy of all notices and
acknowledgements required to be sent under the Transaction Security Documents
executed by the relevant Obligors.


 


(m)                               All share certificates and
copies of all stock powers, transfers and stock transfer forms or equivalent
duly executed by the relevant Obligor in blank in relation to the assets
subject or expressed to be subject to the Transaction Security and other
documents of title to be provided under the Transaction Security Documents.


 


3.                                       Insurance


 


A
letter from the relevant insurance broker dated on or about the date of this
Agreement addressed to the Lender listing the insurance policies of the
Obligors and Velti SA and confirming that they are on risk and that the
insurance for the Obligors and Velti SA at the date of this Agreement is at a
level acceptable to the Lender and covering appropriate risks for the business
carried out by the Obligors and Velti SA.


 


129

















 


4.                                       Other documents and evidence


 


(a)                                  The Group Structure Chart
which shows the structure of the Group on the date of this Agreement.


 


(b)                                 The Budget.


 


(c)                                  A copy, certified by an
authorised signatory of the Parent to be a true copy, of the Original Financial
Statements of each Obligor and Velti SA.


 


(d)                                 A Certificate of the Parent
addressed to the Lender confirming which companies within the Group are
Material Companies and that the aggregate gross assets, the aggregate net
assets and aggregate turnover of the Original Guarantors and Velti SA (in each
case calculated on an unconsolidated basis and excluding all intra-Group items
and investments in Subsidiaries of any member of the Group) exceeds 90% of the
consolidated gross assets, consolidated net assets and consolidated turnover of
the Group.


 


(e)                                  A letter from the Parent to
the Lender specifying the Holding Account /Mandatory Prepayment Account
including details of such account name, account number and the name and address
of the bank where such account is held.


 


(f)                                    A copy of any other
Authorisation or other document, opinion or assurance which the Lender (acting
reasonably) notifies the Parent is necessary in connection with the entry into
and performance of the transactions contemplated by any Finance Document or for
the validity and enforceability of any Finance Document.


 


(n)                                 A letter from each Existing Debt Lender (other
than the HSBC Consent Letter) in whose favour Permitted Security has been
granted confirming their consent to the arrangements contemplated by the Transaction
Security (if applicable)).


 


(o)                                 The UniCredit Consent Letter.


 


(p)                                 The Redomiciliation Side
Letter


 


130














 


Part II


Conditions
precedent required to be

delivered by an Additional Obligor


 


1.                                       An
Accession Deed executed by the Additional Obligor and the Ultimate Parent.


 


2.                                       A copy of
the constitutional documents of the Additional Obligor.


 


3.                                       A copy of a resolution
of the board of directors of the Additional Obligor:


 


(a)                                  approving the terms of, and
the transactions contemplated by, the Accession Deed and the Finance Documents
and resolving that it execute, deliver and perform the Accession Deed and any
other Finance Document to which it is party;


 


(b)                                 authorising a specified person
or persons to execute the Accession Deed and other Finance Documents on its
behalf;


 


(c)                                  authorising a specified person
or persons, on its behalf, to sign and/or despatch all other documents and
notices (including, in relation to an Additional Borrower, any Utilisation
Request or Selection Notice) to be signed and/or despatched by it under or in
connection with the Finance Documents to which it is a party; and


 


(d)                                 authorising the Ultimate
Parent to act as its agent in connection with the Finance Documents


 


4.                                       A specimen
of the signature of each person authorised by the resolution referred to in
paragraph 3 above.


 


5.                                       A copy of a
resolution signed by all the holders of the issued shares of the Additional
Guarantor, approving the terms of, and the transactions contemplated by, the
Finance Documents to which the Additional Guarantor is a party.


 


6.                                       A copy of a
resolution of the board of directors of each corporate shareholder of each
Additional Guarantor approving the terms of the resolution referred to in
paragraph 5 above.


 


7.                                       A
certificate of the Additional Obligor (signed by a director) confirming that
borrowing or guaranteeing or securing, as appropriate, the Total Commitments
would not cause any borrowing, guarantee, security or similar limit binding on
it to be exceeded.


 


8.                                       A certificate of an
authorised signatory of the Additional Obligor certifying that each copy
document listed in paragraphs 2 to 7, 9 and 11 of this Part II of Schedule
2 is correct, complete and in full force and effect and has not been 


 


131

















 


amended or superseded as at a date no earlier than the date of the
Accession Deed.


 


9.                                       If
available, the latest financial statements of the Additional Obligor.


 


10.                                 If the
Additional Obligor is incorporated in or has its “centre of main interest” or “establishment”
(as referred to in Clause 17.26 (Centre of
main interests and establishments)) in a jurisdiction other than
England and Wales or is executing a Finance Document which is governed by a law
other than English law, a legal opinion of the legal advisers to the Lender in
the jurisdiction of its incorporation, “centre of main interest” or “establishment”
(as applicable) or, as the case may be, the jurisdiction of the governing law
of that Finance Document (the “Applicable Jurisdiction”) as to the law of the
Applicable Jurisdiction.


 


11.                                 If the
proposed Additional Obligor is incorporated in a jurisdiction other than
England and Wales, evidence that the process agent specified in Clause 35.2 (Service of process), if not an Obligor, has accepted its
appointment in relation to the proposed Additional Obligor.


 


12.                                 If such
Additional Obligor is a US Obligor, a certificate as to the existence and good
standing (including verification of tax status, if available) of the US Obligor
from the appropriate governmental authorities in such US Obligor’s jurisdiction
of organisation and in each other jurisdiction where such US Obligor is qualified
to do business (if any),  in form and
substance satisfactory to the Lender and its counsel.


 


13.                                 If such
Additional Obligor is a US Obligor, a solvency certificate in form and
substance satisfactory to the Lender and its counsel.


 


14.                                 Any
security documents which, subject to the Agreed Security Principles, are
required by the Lender (acting reasonably) to be executed by the proposed
Additional Obligor.


 


15.                                 Any notices
or documents specified by the Lender (acting reasonably) to be given or
executed under the terms of those security documents.


 


16.                                 A copy of any other
Authorisation or other document, opinion or assurance which the Lender (acting
reasonably) notifies the Ultimate Parent is necessary in connection with the
entry into and performance of the transactions contemplated by any Finance
Document or for the validity and enforceability of any Finance Document.


 


17.


 


(a)                                  If the Additional Obligor is
incorporated in England and Wales or Scotland, evidence that the Additional
Obligor has done all that is 


 


132

















 


necessary (including, without limitation,
by re-registering as a private company) to comply with sections 151 to 154 of
the Companies Act 1985 in order to enable that Additional Obligor to enter into
the Finance Documents and perform its obligations under the Finance Documents.


 


(b)                                 If the Additional Obligor is
not incorporated in England and Wales or Scotland, such documentary evidence as
legal counsel to the Lender may require, that such Additional Obligor has
complied with any law in its jurisdiction relating to financial assistance or
analogous process.


 


133

















 


SCHEDULE 3 


REQUESTS


 


Utilisation
Request


Loans


 




	
  From:

  	
  [Borrower] [Ultimate
  Parent]*

  
	
  To:

  	
  [Lender]

  
	
  Dated:

  






 


Dear
Sirs


 


[Ultimate Parent] –
[             ]
Facilities Agreement


dated
[             ]
(as amended, supplemented, varied or restated from time to time, the “Facilities
Agreement”)


 


1.                                       We refer to
the Facilities Agreement.  This is a Utilisation
Request.  Terms defined in the Facilities
Agreement have the same meaning in this Utilisation Request unless given a
different meaning in this Utilisation Request.


 


2.                                       We wish to
borrow a Loan on the following terms:


 




	
   

  	
  (a)

  	
   

  	
  Borrower:

  	
   

  	
  [             ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
   

  	
  Proposed
  Utilisation Date:

  	
   

  	
  [             ]
  (or, if that is not a Business Day, 

  
	
   

  	
   

  	
   

  	
  the
  next Business Day)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (c)

  	
   

  	
  Facility
  to be utilised:

  	
   

  	
  [Term
  Facility] [Revolving Facility]**

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (d)

  	
   

  	
  Currency
  of Loan:

  	
   

  	
  [             ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (e)

  	
   

  	
  Amount:

  	
   

  	
  [             ]
  or, if less, the Available Facility

  






 


3.                                       We confirm
that each condition specified in Clause 4.2 (Further
conditions precedent) is satisfied on the date of this Utilisation
Request.


 


4.                                       [The
proceeds of this Loan should be credited to [account]].


 


5.                                       This
Utilisation Request is irrevocable.


 




	
   

  	
   

  	
  Yours
  faithfully

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  






authorised
signatory for


[the Ultimate Parent on behalf of [insert name of relevant Borrower]]/ [insert name
of Borrower]*


 


134

















 






NOTES:


 


*                                                Amend as appropriate.  The
Utilisation Request can be given by the Borrower or by the Ultimate Parent.


 


**                                           Select the Facility to be utilised and delete references to the
other Facilities.


 


135














 


SCHEDULE 4

FORM OF ACCESSION DEED


 




	
  To:

  	
  [                   ]
  as Lender

  






 




	
  From:

  	
  [Subsidiary] and [Ultimate
  Parent]

  






 


Dated:


 


Dear
Sirs


[Ultimate Parent] – [          ] Senior Facilities Agreement


dated
[          ] (as amended, supplemented, varied or restated from time to time, the “Facilities
Agreement”)


 


1.             We refer to
the Facilities Agreement.  This deed (the
“Accession Deed”) shall take effect as an Accession Deed for the purposes of
the Facilities Agreement.  Terms defined
in the  Facilities Agreement have the
same meaning in paragraphs 1-3 of this Accession Deed unless given a different
meaning in this Accession Deed.


 


2.             [Subsidiary] agrees to become an Additional
[Borrower]/[Guarantor] and to be bound by the terms of the Facilities Agreement
and the other Finance Documents as an Additional [Borrower]/[Guarantor]
pursuant to Clause [23.2 (Additional Borrowers)]/[Clause
23.4 (Additional Guarantors)] of the
Facilities Agreement.  [Subsidiary] is a company duly incorporated under the laws of
[name of relevant jurisdiction] and is a
limited liability company and registered number
[                   ].


 


3.             [Subsidiary’s]
administrative details for the purposes of the Facilities Agreement are as
follows:


 


Address:


 


Fax No.:


 


Attention:


 


4.             [Subsidiary]
(for the purposes of this paragraph 4, the “Acceding Debtor”) intends to [incur
Liabilities under the following documents]/[give a guarantee, indemnity or
other assurance against loss in respect of Liabilities under the following
documents]:


 


[Insert details (date, parties and description) of
relevant documents]


 


the “Relevant Documents”.


 


136

















 


[4]/[5]
This Accession Deed [and any non-contractual obligations arising out of or in
connection with it] [is/are] governed by English law.


 


THIS
ACCESSION DEED has been signed on behalf of
the Lender (for the purposes of paragraph 4 above only), signed on behalf of
the Ultimate Parent and executed as a deed by [Subsidiary]
and is delivered on the date stated above.


 


 




	
  [Subsidiary]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [EXECUTED AS A DEED

  	
   

  	
  )

  
	
  By: [Subsidiary]

  	
   

  	
  )

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Director/Secretary

  






 


OR


 




	
  [EXECUTED
  AS A DEED

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By: [Subsidiary]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature
  of Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name
  of Director

  
	
   

  	
   

  	
   

  
	
  in
  the presence of

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature
  of witness

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name
  of witness

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address
  of witness

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Occupation
  of witness]

  






 


137

















 


The Ultimate Parent


 




	
   

  	
   

  	
  [Parent]

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  






 


The Lender


 


[Full Name of Current Lender]


 


By:


 


Date:


 


138

















 


SCHEDULE 5

FORM OF RESIGNATION LETTER


 




	
  To:

  	
  [            ]
  as Lender

  
	
   

  
	
  From:

  	
  [resigning Obligor] and [Ultimate Parent]

  






 


Dated:


 


Dear
Sirs


[Ultimate Parent] -
[             ]
Facilities Agreement


dated
[             ]
(as amended, supplemented, varied or restated from time to time, the “Facilities
Agreement”)


 


1.             We refer to
the Facilities Agreement.  This is a
Resignation Letter.  Terms defined in the
Facilities Agreement have the same meaning in this Resignation Letter unless
given a different meaning in this Resignation Letter.


 


2.             Pursuant to
[Clause 23.3 (Resignation of a Borrower)]/[Clause
23.5 (Resignation of a Guarantor)], we request
that [resigning Obligor] be released from its
obligations as a [Borrower]/[Guarantor] under the Facilities Agreement and the
Finance Documents.


 


3.             We confirm that:


 




	
   

  	
  (a)

  	
   

  	
  no Default is continuing or would result from the
  acceptance of this request; and

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
   

  	
  *[[this request is given in relation to a
  Third Party Disposal of [resigning Obligor];

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (c)

  	
   

  	
  [the Disposal Proceeds have been or will
  be applied in accordance with Clause 8.2 (Disposal and Insurance
  Proceeds and Excess Cashflow);]**]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (d)

  	
   

  	
  [             ]***

  






 


4.             This letter
[and any non-contractual obligations arising out of or in connection with it]
[is/are] governed by English law.


 




	
   

  	
  [Ultimate Parent]

  	
   

  	
  [resigning Obligor]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  By:

  






 






NOTES:


 


*          Insert
where resignation only permitted in case of a Third Party Disposal.


 


139

















 


**        Amend as
appropriate, e.g. to reflect agreed procedure for payment of proceeds into a
specified account.


 


***      Insert any
other conditions required by the Facilities Agreement.


 


140














 


SCHEDULE 6

FORM OF COMPLIANCE CERTIFICATE


 




	
  To:

  	
  [             ]
  as Lender

  
	
   

  	
   

  
	
  From:

  	
  [Ultimate Parent]

  






 


Dated:


 


Dear Sirs


 


[Ultimate Parent] -
[             ]
Facilities Agreement


dated
[             ]
(as amended, supplemented, varied or restated from time to time, the “Facilities
Agreement”)


 


1.             We refer to the Facilities
Agreement.  This is a Compliance
Certificate.  Terms defined in the
Facilities Agreement have the same meaning when used in this Compliance
Certificate unless given a different meaning in this Compliance Certificate.


 


2.             We confirm that:


 


[Insert
details of covenants to be certified].


 


3.             [We confirm that no
Default is continuing.] *


 


4.             [We confirm that the following
companies constitute Material Companies for the purposes of the Facilities
Agreement: [             ].]


 


[We
confirm that the [aggregate of the earnings before interest, tax, depreciation
and amortisation (calculated on the same basis as EBITDA, as defined in Clause
19 (Financial Covenants))] /
[aggregate gross assets, aggregate net assets and aggregate turnover] of the
Guarantors (calculated on an unconsolidated basis and excluding all intra-group
items and investments in Subsidiaries of any member of the Group) exceeds [ ]%
of the [EBITDA, as defined in Clause 19 (Financial
Covenants)] [consolidated gross assets, consolidated net assets and
consolidated  turnover of the Group].


 




	
  Signed

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Director

  	
   

  	
  Director

  
	
   

  	
   

  	
  Of

  	
   

  	
  of

  
	
   

  	
   

  	
  [Ultimate
  Parent]

  	
   

  	
  [Ultimate
  Parent]

  






 


141

















 


SCHEDULE 7


EXISTING DEBT


 


	
  Existing Debt

  Lender

  	
   

  	
  Borrower

  	
   

  	
  Description of

  Facility

  	
   

  	
  Maximum

  Committed Amount

  (Euro)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  HSBC
  Bank plc

  	
   

  	
  Velti
  SA

  	
   

  	
  Bond
  Loan

  	
   

  	
  3,000,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  HSBC
  Bank plc

  	
   

  	
  Velti
  SA

  	
   

  	
  Working
  capital and factoring

  	
   

  	
  2,060,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  HSBC
  Bank plc

  	
   

  	
  Velti
  SA

  	
   

  	
  Letter
  of Guarantees

  	
   

  	
  4,000,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bayerische
  Hypo-und Vereinsbank AG

  	
   

  	
  Velti
  SA

  	
   

  	
  Short
  Term Loan

  	
   

  	
  5,000,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Alpha
  Bank

  	
   

  	
  Velti
  SA

  	
   

  	
  Working
  Capital

  	
   

  	
  1,000,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Alpha
  Bank

  	
   

  	
  Velti
  SA

  	
   

  	
  Letter
  of Guarantees

  	
   

  	
  2,000,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ABC
  Factoring

  	
   

  	
  Velti
  SA

  	
   

  	
  Factoring
  accounts receivable

  	
   

  	
  2,000,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Marfin
  Factors

  	
   

  	
  Velti
  SA

  	
   

  	
  Factoring
  accounts receivable

  	
   

  	
  2,000,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EFG -
  Eurobank Ergasias

  	
   

  	
  Velti
  SA

  	
   

  	
  Working
  Capital

  	
   

  	
  1,100,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EFG -
  Eurobank Ergasias

  	
   

  	
  Velti
  SA

  	
   

  	
  Bond
  Loan

  	
   

  	
  300,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EFG -
  Eurobank Ergasias

  	
   

  	
  Velti
  SA

  	
   

  	
  Letter
  of Guarantees

  	
   

  	
  800,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Emporiki
  Bank

  	
   

  	
  Velti
  SA

  	
   

  	
  Working
  Capital

  	
   

  	
  1,000,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Emporiki
  Bank

  	
   

  	
  Velti
  SA

  	
   

  	
  Letter
  of Guarantees

  	
   

  	
  400,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  National
  Bank of Greece

  	
   

  	
  Velti
  SA

  	
   

  	
  Working
  Capital

  	
   

  	
  1,000,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  National
  Bank of Greece

  	
   

  	
  Velti
  SA

  	
   

  	
  Factoring
  accounts receivable

  	
   

  	
  600,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  National
  Bank of Greece

  	
   

  	
  Velti
  SA

  	
   

  	
  Letter
  of Guarantees

  	
   

  	
  200,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bank
  of Cyprus

  	
   

  	
  Velti
  SA

  	
   

  	
  Working
  Capital and Letter of Guarantees

  	
   

  	
  600,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bank
  of Cyprus

  	
   

  	
  Velti
  SA

  	
   

  	
  Factoring
  Accounts Receivable

  	
   

  	
  600,000

  



 


142

















 


	
  Piraeus
  Bank

  	
   

  	
  Velti
  SA

  	
   

  	
  Working
  Capital

  	
   

  	
  660,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Hellenic
  Bank

  	
   

  	
  Velti
  SA

  	
   

  	
  Working
  Capital

  	
   

  	
  350,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Hellenic
  Bank

  	
   

  	
  Velti
  SA

  	
   

  	
  Letter
  of Guarantees

  	
   

  	
  320,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ATE
  Factoring

  	
   

  	
  Velti
  SA

  	
   

  	
  Factoring
  accounts receivable

  	
   

  	
  1,500,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  HBDIC

  	
   

  	
  Velti
  SA

  	
   

  	
  Long
  term loan

  	
   

  	
  40,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Piraeus
  Bank

  	
   

  	
  Velti
  Platforms and Services Limited

  	
   

  	
  Working
  Capital

  	
   

  	
  350,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Universal
  Bank

  	
   

  	
  Velti
  Ukraine Mobile Marketing Services LLC

  	
   

  	
  Working
  Capital

  	
   

  	
  40,590.55

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Universal
  Bank

  	
   

  	
  Velti
  Ukraine Mobile Marketing Services LLC

  	
   

  	
  Working
  Capital

  	
   

  	
  115,973

  



 


143














 


SCHEDULE 8


MATERIAL COMPANIES


 


 


Velti
plc (registered in England and to be renamed Velti Limited)


 


Velti
dR Limited


 


Velti
M-Telecom Limited


 


Velti
SA


 


Velti
US Holdings Inc


 


Velti
Platforms and Services Limited


 


Ad
Infuse, Inc


 


Zelus
plc (registered in Jersey and to be renamed Velti Plc)


 


144

















 


SCHEDULE 9

FORM OF BUDGET


 


145

















 


SCHEDULE 10

FORM OF BORROWING BASE CERTIFICATE


 


[[Zelus plc’s]writing
paper]


 


Thor Luxembourg Sarl


 


· 20·


 


Dear Sirs


 


Borrowing base certificate


 


Pursuant to, and in
accordance with, the terms and provisions of 
the facility agreement dated [] 2009 (as
amended, supplemented, varied or restated from time to time, the “Facility Agreement”) between, amongst others[ ]Velti PLC
and Thor Luxembourg SARL, the Ultimate Parent
delivers to the Lender this Borrowing Base Certificate.  The Ultimate Parent
represents and warrants to the Lender that this certificate is true and
correct, and is based on information contained in its or relevant Obligor’s (as
the case may be) financial accounting records as at · 20·.


 


Total value of
receivables originated by the Obligors: ·


 


Total value of Eligible
Receivables:  ·


 


Total value of Excluded
Receivables:  ·


 


146

















 


The amount of the
Revolving Facility is:  ·(1)


 


The outstanding balance of the Term Loan is: ·


 


The outstanding balance of the Revolving
Facility is: ·


 


Total Financial Indebtedness is: ·


 


The Receivables Ratio is: ·


 


Total Cash is: ·


 


The above figures
represent the euro equivalent amount of any receivables originated by the
Obligors and not dominated in euro.


 


Capitalised terms used in
this letter shall have the meanings ascribed to them in the Facility Agreement.


 


This letter is a Finance
Document.


 


Yours faithfully


 


[]


 






(1) Insert
here the lower of euro 2,750,000 and 55% of 
total value of Eligible Receivables


 


147

















 


SCHEDULE 11

AGREED SECURITY PRINCIPLES


 


(A)                              Considerations


 


First
ranking Security over the entire issued share capital of each Obligor (other
than the Ultimate Parent) shall be provided by each relevant Obligor.


 


Each
Obligor shall provide Security over all invoiced or billed receivables originated
by it (excluding Excluded Receivables), and all of its Intellectual Property.


 


Each Obligor (save for any
incorporated in Greece) shall provide Security over all Cash held by it an bank
accounts.


 


Each
Obligor incorporated in England and Wales (and not Obligors incorporated
elsewhere) shall provide Security by way of fixed and floating charges over its
assets in a form consistent with that provided by the Obligors on the date of
this Agreement.


 


An
entity which is not an Obligor shall not be required to provide any Security.


 


No
Obligor shall grant or be obliged to grant Security over any shares it owns in
the capital of AdInfuse, Inc prior to the AdInfuse Acquisition Security being
released.


 


Any Obligor incorporated in Greece shall provide Security over invoiced
or billed receivables originated by it (excluding Excluded Receivables) and all
of its Intellectual Property in respect of the obligations of Velti SA in
relation to the Revolving Facility  (and
not, for the avoidance of doubt, in relation to the Parent’s obligations in
relation to the Term Facility).


 


Notwithstanding
the above, in determining what Security will be provided in support of the
Facilities the following matters will be taken into account. Security shall not
be created or perfected to the extent that it would:


 


(a)                                  result in any breach of
corporate benefit, financial assistance, fraudulent preference or thin
capitalisation laws or regulations (or analogous restrictions) of any
applicable jurisdiction;


 


(b)                                 result in a significant risk
to the officers of the relevant grantor of Security of contravention of their
fiduciary duties and/or of civil or criminal liability; or


 


(c)                                  result in costs in the
reasonable opinion of the Lender that are disproportionate to the benefit
obtained by the beneficiaries of that Security.


 


148

















 


For the
avoidance of doubt, in these Agreed Security Principles, “costs” includes, but
is not limited to, income tax cost, registration taxes payable on the creation
or enforcement or for the continuance of any Security, stamp duties, out of
pocket expenses and other fees and expenses directly incurred by the relevant
grantor of Security or any of its direct or indirect owners, subsidiaries or
Affiliates.


 


(B)                                Obligations to be Secured


 


1.                                       Subject to (A) (Considerations) and to
paragraph 2 below, the obligations to be secured are the Secured Obligation (as
defined below). The Security is to be granted in favour of the Lender.


 


For
ease of reference, the following definition should, to the extent legally
possible, be incorporated into each Transaction Security Document:


 


“Secured Obligations”  means all and any
moneys, obligations and liabilities now or in the future due, owing or incurred
by any Obligor to the Lender under the Finance Documents, both actual and
contingent and whether incurred solely or jointly and as principal or surety or
in any other capacity.


 


2.             The Secured
Obligations will be limited:


 


2.1                                 to
avoid any breach of corporate benefit, financial assistance, fraudulent
preference, thin capitalisation rules of the laws or regulations (or
analogous restrictions) of any applicable jurisdiction; and


 


2.2                                 to
avoid any risk to officers of the relevant member of the Group that is granting
Transaction Security of contravention of their fiduciary duties and/or civil or
criminal or personal liability.


 


(C)                                General


 


Where appropriate, defined terms in the Transaction
Security Documents should mirror those in this Agreement.


 


The form of guarantee is set out in Clause 16 (Guarantee and Indemnity) of this Agreement and, with respect
to any Additional Guarantor, is subject to any limitations set out in the
Accession Deed applicable to such Additional Guarantor.


 


The Security shall, to the extent possible under
local law, be enforceable on the occurrence of an Event of Default in respect
of which notice has been served by the Lender in accordance with Clause 21.19 (Acceleration).


 


149

















 


(D)                               Undertaking/Representations and Warranties


 


Any representations, warranties or undertakings
which are required to be included in any Transaction Security Document shall
reflect (to the extent to which the subject matter of the representation,
warranty or undertaking is the same as the corresponding representation,
warranty or undertaking in this Agreement) the commercial deal set out in this
Agreement (save to the extent the Lender’s local counsel deem it reasonably
necessary to include any further provisions (or deviate from those contained in
this Agreement) in order to protect or preserve the Security granted to the
Lender and to confirm, accomplish or maintain any registration or perfection of
security where required by local law.


 


150

















 


SIGNATURES


 


THE PARENT


 


VELTI PLC


 


	
  By:

  	
  /s/ Pantelis
  Papageorgiou

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  2 Paris
  Garden

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Email:

  	
   

  	
   

  



 


 


THE ORIGINAL BORROWER


 


VELTI PLC


 


	
  By:

  	
  /s/ Pantelis Papageorgiou

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  2 Paris Garden

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Email:

  	
   

  	
   

  



 


151

















 


THE ORIGINAL GUARANTORS


 


VELTI PLC


 


	
  By:

  	
  /s/ Pantelis
  Papageorgiou

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  2 Paris
  Garden

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Email:

  	
   

  	
   

  



 


 


VELTI
DR LIMITED


 


	
  By:

  	
  /s/ Pantelis
  Papageorgiou

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  2
  Paris Garden

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Email:

  	
   

  	
   

  



 


 


VELTI
M-TELECOM LIMITED


 


	
  By:

  	
  /s/ Pantelis
  Papageorgiou

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  2
  Paris Garden

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Email:

  	
   

  	
   

  



 


VELTI
PLATFORMS AND SERVICES LIMITED


 


	
  By:

  	
  /s/ Soterakis
  Koupepides

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  Themistokli
  Dervis 5, Elenian Building

  2nd Floor, P.C. 1066, Nicosia, Cyprus

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Email:

  	
   

  	
   

  



 


152

















 


VELTI
US HOLDINGS INC


 


	
  By:

  	
  /s/
  Alexandros Moukas

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  2
  Paris Garden

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Email:

  	
   

  	
   

  



 


 


THE LENDER


 


THOR LUXEMBOURG SARL


 


	
  By:

  	
  /s/ Matthew Spetzler

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  100 Pallmall, FP

  4th Floor, London Swiy SNQ

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
  +44 207 907 8650

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
  Matt
  Spetzler

  	
   

  
	
   

  	
   

  	
   

  
	
  Email:

  	
  matt@spetzler.com

  	
   

  



 


 


153














 


SCHEDULE 3


 


CONDITIONS PRECEDENT DOCUMENTS


Corporate Documents


 


1.                                           A copy of the constitutional documents of Newco together with its
certificate of incorporation and any certificate of change of name.


 


2.                                           A certificate of an authorised signatory of each Obligor confirming
that, as at the date of this Agreement, there has been no change in its
constitutional documents or directors since details were last provided to the
Lender.


 


3.                                           A copy of a resolution of the board of directors of each Obligor and
Newco:


 


(a)                              approving the terms of, and the transactions contemplated by, the
Supplemental Documents to which it is a party and resolving that it execute,
deliver and perform the Supplemental Documents to which it is a party;


 


(b)                             authorising a specified person or persons to execute the
Supplemental Documents to which it is a party on its behalf; and


 


(c)                              authorising a specified person or persons, on its behalf, to sign
and/or despatch all documents and notices (including, if relevant, any power of
attorney) to be signed and/or despatched by it under or in connection with the
Supplemental Documents to which it is a party; and


 


(d)                             in the case of an Obligor other than Newco, authorising Newco (as
Ultimate Parent under the terms of the Amended Facilities Agreement) to act as
its agent in connection with the Finance Documents from the Effective Date.


 


4.                                           In relation to Newco, a copy of a specimen of the signature of each
person authorised by the resolution referred to in paragraph 3 above to sign
the Supplemental Documents and related documents.


 


5.                                           A copy of a resolution signed by all the holders of the issued
shares in each Obligor (other than the Parent and Newco), approving the terms
of, and the transactions contemplated by, the Supplemental Documents to which
the Obligor is a party.


 


6.                                           A copy of a resolution of the board of directors of each corporate
shareholder of each Obligor (other than the Parent and Newco) approving the
terms of the resolution referred to in paragraph 5 above.


 


7.                                           A certificate of an authorised signatory of each Obligor certifying
that each copy document relating to it specified in this Schedule is correct,
complete and in full force and effect and has not been amended or superseded as
at a date no earlier than the date of this Agreement.


 


8.                                           A certificate of Newco (signed by a director) confirming that
borrowing or guaranteeing or securing, as appropriate, the Total Commitments
would not cause any borrowing, guarantee, security, or similar limit binding on
it to be exceeded.


 


Supplemental Documents


 


1.                                       A duly executed original of this Deed.


 


154

















 


2.                                       A duly executed original of the Consent Letter.


 


3.                                       A duly executed original of each Newco Document.


 


4.                                       A copy of all notices required to be sent under the Newco Security
Documents.


 


155

















 


SIGNATORIES


 


 




	
  PARENT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Executed
  as a deed by

  	
   

  	
  )

  
	
  VELTI PLC

  	
   

  	
  )

  
	
  acting
  by

  	
   

  	
  )

  
	
  under
  the authority of that

  	
   

  	
  )

  
	
  company,
  in the presence of:

  	
   

  	
  )

  
	
   

  	
   

  	
   

  
	
  Witness’s
  Signature:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  BORROWERS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Executed as a deed by

  	
   

  	
  )

  
	
  VELTI PLC

  	
   

  	
  )

  
	
  acting
  by

  	
   

  	
  )

  
	
  under
  the authority of that

  	
   

  	
  )

  
	
  company,
  in the presence of:

  	
   

  	
  )

  
	
   

  	
   

  	
   

  
	
  Witness’s
  Signature:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Executed as a deed by

  	
   

  	
  )

  
	
  VELTI SA

  	
   

  	
  )

  
	
  acting
  by

  	
   

  	
  )

  
	
  under
  the authority of that

  	
   

  	
  )

  
	
  company,
  in the presence of:

  	
   

  	
  )

  
	
   

  	
   

  	
   

  
	
  Witness’s
  Signature:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  






 


156

















 




	
  GUARANTORS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Executed
  as a deed by

  	
   

  	
  )

  
	
  VELTI PLC

  	
   

  	
  )

  
	
  acting
  by

  	
   

  	
  )

  
	
  under
  the authority of that

  	
   

  	
  )

  
	
  company,
  in the presence of:

  	
   

  	
  )

  
	
   

  	
   

  	
   

  
	
  Witness’s
  Signature:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Executed
  as a deed by

  	
   

  	
  )

  
	
  VELTI DR LIMITED

  	
   

  	
  )

  
	
  acting
  by

  	
   

  	
  )

  
	
  under
  the authority of that

  	
   

  	
  )

  
	
  company,
  in the presence of:

  	
   

  	
  )

  
	
   

  	
   

  	
   

  
	
  Witness’s
  Signature:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Executed
  as a deed by

  	
   

  	
  )

  
	
  VELTI M-TELECOM LIMITED

  	
   

  	
  )

  
	
  acting
  by

  	
   

  	
  )

  
	
  under
  the authority of that

  	
   

  	
  )

  
	
  company,
  in the presence of:

  	
   

  	
  )

  
	
   

  	
   

  	
   

  
	
  Witness’s
  Signature:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Executed as a deed by

  	
   

  	
  )

  
	
  VELTI US HOLDINGS INC

  	
   

  	
  )

  
	
  acting
  by

  	
   

  	
  )

  
	
  under
  the authority of that

  	
   

  	
  )

  
	
  company,
  in the presence of:

  	
   

  	
  )

  
	
   

  	
   

  	
   

  
	
  Witness’s
  Signature:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Executed
  as a deed under seal by

  	
   

  	
  )

  






 


157

















 




	
  VELTI PLATFORMS AND SERVICES LIMITED

  	
   

  	
  )

  
	
  and
  signed and delivered as a deed on

  	
   

  	
  )

  
	
  its
  behalf by

  	
   

  	
  )

  
	
  in
  the presence of:

  	
   

  	
  )

  
	
   

  	
   

  	
   

  
	
  Witness’s
  Signature:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Executed
  as a deed by

  	
   

  	
  )

  
	
  VELTI SA

  	
   

  	
  )

  
	
  acting
  by

  	
   

  	
  )

  
	
  under
  the authority of that

  	
   

  	
  )

  
	
  company,
  in the presence of:

  	
   

  	
  )

  
	
   

  	
   

  	
   

  
	
  Witness’s
  Signature:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Executed
  as a deed by

  	
   

  	
  )

  
	
  AD INFUSE, INC.

  	
   

  	
  )

  
	
  acting
  by

  	
   

  	
  )

  
	
  under
  the authority of that

  	
   

  	
  )

  
	
  company,
  in the presence of:

  	
   

  	
  )

  
	
   

  	
   

  	
   

  
	
  Witness’s
  Signature:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ADDITIONAL GUARANTOR/ NEWCO

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Executed as a deed by

  	
   

  	
  )

  
	
  ZELUS PLC

  	
   

  	
  )

  
	
  acting
  by

  	
   

  	
  )

  
	
  under
  the authority of that

  	
   

  	
  )

  
	
  company,
  in the presence of:

  	
   

  	
  )

  
	
   

  	
   

  	
   

  
	
  Witness’s
  Signature:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  






 


158

















 




	
  LENDER

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Executed
  as a deed by

  	
   

  	
  )

  
	
  THOR LUXEMBOURG SARL

  	
   

  	
  )

  
	
  acting
  by

  	
   

  	
  )

  
	
  under
  the authority of that

  	
   

  	
  )

  
	
  company,
  in the presence of:

  	
   

  	
  )

  
	
   

  	
   

  	
   

  
	
  Witness’s
  Signature:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  






 


159