Exhibit
10.1
Under
the Credit reporting Act 2013 lenders arc required to provide customer and credit information for credit applications and credit
agreements of €500 and above to the Central Credit Register. This information will be held on the Central Credit Register
and may be used by other lenders when making decisions on your credit applications and agreements.
The
Central Credit Register is maintained and operated by the Central Bank of Ireland. For information on your rights and duties under
the Credit Reporting Act 2013 please refer to the factsheet prepared by the Central Bank of Ireland. This factsheet is available
on www.centralcreditregister.ie.
The
Directors
Exaxe Limited
70
Sir John Rogerson’s Quay
Dublin
2
____
June
2019
Dear
Sirs
Euro
overdraft facility
HSBC
France, Dublin Branch (the
Bank
) is pleased to offer Exaxe Limited (the
Borrower
) the facilities referred to below
(each a
Facility
and together the
Facilities
) on the terms and subject to the conditions set out in this letter
(the
Facility Letter
).
The
Bank recommends that the Borrower seek independent advice before accepting the offer in the Facility Letter.
Capitalised
terms used and not otherwise defined in the Facility Letter shall have the meanings given to them in the Schedule to the Facility
Letter entitled “Definitions”. Words denoting the singular include the plural and vice versa and any words denoting
any gender include all genders.
Limit
The
amount of the Facility (the
Limit
) will be €400,000 (four hundred thousand Euro) and shall be used by the Borrower
for working capital purposes. The Facility will be available on the following account (the
Facility Current Account
):
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Facility Current Account
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Currency
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411-021462-001
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EUR
|
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Availability
The
Bank may at any time withdraw the Facility and/or demand repayment of all sums owing to it whereupon all amounts borrowed under
the Facility (together with accrued and unpaid interest) shall become immediately due and payable. Following withdrawal and/or
demand, no further utilisations may be made under the Facility. Without prejudice to the rights of the Bank under the Facility
Letter, the Facility is subject to review from time to time and in any case in May 2020. The terms on which any such review may
be conducted are at the sole discretion of the Bank.
RESTRICTED
- HSBC France, Dublin Branch
1
Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820, Ireland
Tel:
+353-1-635-6000 Website: www.hsbc.ie
HSBC
France, Dublin Branch is a registered business name of HSBC France, a branch registered in Ireland (registration number 908966)
having its registered office at 1 Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820 and regulated by the Central Bank
of Ireland for conduct of business rules. The branch is registered by HSBC France, a company incorporated under the laws of France
as a société anonyme (registered number 775 670 284 RCS Paris), having its registered office at 103, avenue des Champs-Elysées,
75008 Paris, France. HSBC France is supervised by the European Central Bank, as part of the Single Supervisory Mechanism, the
French Prudential Supervisory and Resolution Authority (l’Autorité de Contrôle Prudentiel et de Résolution) as the French National
Competent Authority and the French Financial Markets Authority (l’Autorité des Marchés Financiers) for the activities carried
out over financial instruments or in financial markets.
The
Borrower may, at any time, without penalty repay the amount owing to the Bank, together with any interest and charges owing, and
advise the Bank, in writing, that the Facility is no longer required.
Interest
Rate
Interest
in respect of the Facility will be payable at the rate of:
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(a)
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3.5% per annum over the prevailing European Central
Bank Rate on amounts up to the Limit; and
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(b)
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7% per annum over the prevailing European Central Bank
Rate on amounts over the Limit.
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provided
that, should the prevailing European Central Bank Rate at any time become a negative rate, the European Central Bank Rate will
be deemed to be zero for the purposes of the calculation of the interest hereunder.
Security
The
Borrower’s obligations to the Bank under the Facility Letter will be secured by:
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(a)
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all existing security (if any) and any future
security held by the Bank for those obligations; and
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(b)
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security in the Bank’s preferred form
as set out in the Security Schedule, (together the
Security
).
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Where
Security is provided by a holding company of the Borrower or a subsidiary company of the Borrower or of any holding company of
it, each such holding company or subsidiary company is referred to as a
Company
.
The
Security is required as a secondary source of repayment in the event that the Borrower fails to repay the Facility as set out
in the Facility Letter.
Pre-Utilisation
Conditions
The
Facility will not become available until the conditions set out in the Pre-Utilisation Conditions Schedule (the
Pre-Utilisation
Conditions
) have been complied with to the satisfaction of the Bank.
The
Borrower hereby agrees that the Pre-Utilisation Conditions are for the sole exclusive benefit of the Bank, are severable and any
of them may be waived by the Bank in whole or in part at its absolute discretion and on such conditions as it shall think fit
without the consent of the Borrower or any guarantor.
Condition
Subsequent
The
filing of a Form Cl by the Borrower with the Companies Registration Office within 21 days of the date of execution of the Security
Document.
Utilisations
Utilisations
under the Facility shall be subject to the Bank’s current practice from time to time which practice will be explained on request
as utilisations are requested.
RESTRICTED
- HSBC France, Dublin Branch
1
Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820, Ireland
Tel:
+353-1-635-6000 Website: www.hsbc.ie
HSBC
France, Dublin Branch is a registered business name of HSBC France, a branch registered in Ireland (registration number 908966)
having its registered office at 1 Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820 and regulated by the Central Bank
of Ireland for conduct of business rules. The branch is registered by HSBC France, a company incorporated under the laws of France
as a société anonyme (registered number 775 670 284 RCS Paris), having its registered office at 103, avenue des Champs-Elysées,
75008 Paris, France. HSBC France is supervised by the European Central Bank, as part of the Single Supervisory Mechanism, the
French Prudential Supervisory and Resolution Authority (l’Autorité de Contrôle Prudentiel et de Résolution) as the French National
Competent Authority and the French Financial Markets Authority (l’Autorité des Marchés Financiers) for the activities carried
out over financial instruments or in financial markets.
Undertakings
and Representations
Without
affecting the Bank’s right at any time to withdraw the Facility and/or demand repayment of all sums owing to it, the Borrower
will:
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(a)
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give
the undertakings (the
Undertakings
) set out in the Undertakings Schedule to the
Bank which will remain in force until the Facility has been repaid in full; and
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(b)
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make
the representations and warranties set out in the Representations Schedule to the Bank.
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Terms
and Conditions
Further
details of the terms and conditions that apply to the Facility are set out in the General Terms and Conditions and other Schedules
attached to the Facility Letter. The General Terms and Conditions and other Schedules are incorporated into the Facility Letter.
In the event of any conflict between the Facility Letter and a provision of the General Terms and Conditions or any such Schedule,
the Facility Letter shall take precedence.
The
Bank may, at its discretion, change any of the provisions of the Facility Letter (including fees and/or the General Terms and
Conditions and other Schedules attached) by giving at least 30 days’ written notice sent to the Borrower.
Set-Off
The
Bank may, without prior notice to the Borrower, apply any credit balance (whether or not then due and in whatever currency) which
is at any time held by any office or a branch of the Bank for the account of the Borrower in or towards satisfaction of any sum
payable (whether or not then due) by the Borrower under the Finance Documents. The Bank is not obliged to exercise any of its
rights under this clause, which are without prejudice, and in addition, to any right of set-off, combination or consolidation
of accounts, lien or similar right which the Bank has under any applicable law.
Acceptance
To
accept this offer please arrange for the enclosed copy of the Facility Letter to be signed and returned to the address above to
arrive no later than 28 days from the date of the Facility Letter or such other period as the Bank may agree. The acceptance date
will be the date of receipt at this office of the enclosed copy duly completed. If not accepted within this period, the offer
will lapse.
Yours
faithfully,
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/s/
Lorraine Donnelly
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/s/
Glenn Whelan
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Lorraine
Donnelly
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Glenn
Whelan
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Head
of Global, Liquidity and Cash Management
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Senior
Relationship Manager
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For
and on behalf of
HSBC
France, Dublin Branch
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For
and on behalf of
HSBC
France, Dublin France
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Schedules:
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Security
Schedule
Pre-Utilisation
Conditions Schedule
Undertakings Schedule
Representations Schedule
General
Terms and Conditions
Definitions
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RESTRICTED
- HSBC France, Dublin Branch
1
Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820, Ireland
Tel:
+353-1-635-6000 Website: www.hsbc.ie
HSBC
France, Dublin Branch is a registered business name of HSBC France, a branch registered in Ireland (registration number 908966)
having its registered office at 1 Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820 and regulated by the Central Bank
of Ireland for conduct of business rules. The branch is registered by HSBC France, a company incorporated under the laws of France
as a société anonyme (registered number 775 670 284 RCS Paris), having its registered office at 103, avenue des Champs-Elysées,
75008 Paris, France. HSBC France is supervised by the European Central Bank, as part of the Single Supervisory Mechanism, the
French Prudential Supervisory and Resolution Authority (l’Autorité de Contrôle Prudentiel et de Résolution) as the French National
Competent Authority and the French Financial Markets Authority (l’Autorité des Marchés Financiers) for the activities carried
out over financial instruments or in financial markets.
SECURITY
SCHEDULE
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●
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Debenture
between the Borrower and the Bank comprising a fixed and floating charge over the Borrower’s
assets specified therein and dated on or about the date hereof.
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RESTRICTED
- HSBC France, Dublin Branch
1
Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820,
Ireland
Tel: +353-1-635-6000 Website: www.hsbc.ie
HSBC
France, Dublin Branch is a registered business name of HSBC France, a branch registered
in Ireland (registration number 908966) having its registered office at 1 Grand Canal
Square, Grand Canal Harbour, Dublin 2, D02 P820 and regulated by the Central Bank of
Ireland for conduct of business rules. The branch is registered by HSBC France, a company
incorporated under the laws of France as a société anonyme (registered
number 775 670 284 RCS Paris), having its registered office at 103, avenue des Champs-Elysées,
75008 Paris, France. HSBC France is supervised by the European Central Bank, as part
of the Single Supervisory Mechanism, the French Prudential Supervisory and Resolution
Authority (l’Autorité de Contrôle Prudentiel et de Résolution)
as the French National Competent Authority and the French Financial Markets Authority
(l’Autorité des Marchés Financiers) for the activities carried out
over financial instruments or in financial markets.
PRE-UTILISATION
CONDITIONS SCHEDULE
Acceptance
of the Facility Letter
Receipt
by the Bank of the Facility Letter accepted on behalf of the Borrower by all appropriate signatories.
Authorisations
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(a)
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Receipt
by the Bank of a copy of the certificate of incorporation (together with all applicable,
if any, certificate(s) of incorporation on a change of name and certificate of incorporation)
and the constitutional documents of the Borrower certified as up to date by the company
secretary or a director.
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(b)
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Receipt by the Bank of certified copy of board resolutions
of the directors of the Borrower:
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(i)
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approving
the Facility Letter and authorising a person or persons to accept the Facility Letter;
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(ii)
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approving
any Security to be given by the Borrower and authorising persons to execute that Security;
and
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(iii)
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approving
the provision of a certificate from a director of the Borrower as referred to in (e)
below.
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The
board resolutions are to be certified as true and correct by the chairman of the board meeting and the company secretary or a
director.
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(c)
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A specimen of the signature of each person authorised
by the resolutions referred to in paragraph (b)
above.
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(d)
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Receipt by the Bank of a certificate from a director
or the secretary of the Borrower, in form and substance acceptable to the Bank, confirming, amongst other things, that (i) borrowing
or guaranteeing, as appropriate, the Facility would not cause any borrowing, guaranteeing or similar limit binding on the Borrower
to be exceeded and (ii) the Borrower is not prohibited by any relevant law or regulation from entering into the Finance Documents
to which it is a party and (iii) that the provisions of Section 239 of the Companies Act 2014 do not prohibit the execution by
the Borrower of the Finance Documents to which it is a party.
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Security
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(a)
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Evidence
that the Borrower has good and marketable title to the assets (the
Assets
) over
which they are providing Security.
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(b)
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Security
Documents in form and content satisfactory to the Bank.
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(c)
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Receipt
by the Bank of the Security Documents properly executed by the parties to them.
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(d)
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Any
documents required to enable registration of the Security at the Companies Registration
Office, the Land Registry or Registry of Deeds or any other registry.
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(e)
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Evidence
of the deregistration of the charge dated 22 May 2017 in favour of AIB Commercial Finance
Limited.
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Insurance
Evidence
of insurance of the Borrower’s assets in accordance with the Insurance provisions in the Undertakings Schedule.
Miscellaneous
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(a)
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Compliance
with the Bank’s “know your customer” requirements.
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(b)
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Receipt
by the Bank of a bank mandate form completed by the Borrower.
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RESTRICTED
- HSBC France, Dublin Branch
1
Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820, Ireland
Tel:
+353-1-635-6000 Website: www.hsbc.ie
HSBC
France, Dublin Branch is a registered business name of HSBC France, a branch registered in Ireland (registration number 908966)
having its registered office at 1 Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820 and regulated by the Central Bank
of Ireland for conduct of business rules. The branch is registered by HSBC France, a company incorporated under the laws of France
as a société anonyme (registered number 775 670 284 RCS Paris), having its registered office at 103, avenue des Champs-Elysées,
75008 Paris, France. HSBC France is supervised by the European Central Bank, as part of the Single Supervisory Mechanism, the
French Prudential Supervisory and Resolution Authority (l’Autorité de Contrôle Prudentiel et de Résolution) as the French National
Competent Authority and the French Financial Markets Authority (l’Autorité des Marchés Financiers) for the activities carried
out over financial instruments or in financial markets.
UNDERTAKINGS
SCHEDULE
Environmental
Obligations
The
Borrower will comply with all applicable current laws, regulations and practices relating to the protection of the environment
from pollution (the
Environmental Obligations
).
Insurance
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(a)
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If
required by the Bank, the Borrower will keep, its assets fully insured against fire,
theft, explosion, terrorist activities, floods, storm and other reasonable risks for
their full reinstatement value with an insurer acceptable to the Bank and with the Bank’s
interest noted on the policy or policies. The insurance will also cover financial loss
following business interruption as a result of damage or loss of the Borrower’s assets
caused by the insured risks and will be in an amount and in a form acceptable to the
Bank.
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(b)
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The
Borrower will provide the Bank with a copy of the relevant policies and insurance premium
receipts upon request.
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Information
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(a)
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The
Borrower will promptly provide to the Bank any financial or other information that the
Bank may, from time to time, reasonably request.
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(b)
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The
Borrower will also provide to the Bank audited accounts, in form and substance acceptable
to the Bank, not later than three months after the Borrower’s balance sheet date.
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(c)
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Where
the Borrower’s financial accounts have not been audited, the Bank may request an audit
be carried out at the Borrower’s expense by an auditor acceptable to the Bank.
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(d)
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All
accounts and other financial information provided to the Bank will be prepared in accordance
with generally accepted accounting standards.
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(e)
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The
information that the Bank asks for is required to enable it to understand the Borrower’s
financial position and to assess the Borrower’s ability to meet its obligations in the
Facility Letter.
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Restriction
on Lending
The
Borrower will not advance, whether subject to a formal or informal arrangement, any monies by way of a loan to a director of the
Borrower, a member of the Group or any Subsidiary without the prior written consent of the Bank.
In
this provision:
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(a)
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Unless
the context requires otherwise, the application of the definition of Group to any company
at any time shall apply to the company as it is at that time; and
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(b)
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Unless
the context requires otherwise:
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(i)
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the
application of the definition of Subsidiary to any company at any time shall apply to
the company as it is at that time; and
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(ii)
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references
to
Subsidiary
are references to a Subsidiary of the Borrower.
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RESTRICTED
- HSBC France, Dublin Branch
1
Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820, Ireland
Tel:
+353-1-635-6000 Website: www.hsbc.ie
HSBC
France, Dublin Branch is a registered business name of HSBC France, a branch registered in Ireland (registration number 908966)
having its registered office at 1 Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820 and regulated by the Central Bank
of Ireland for conduct of business rules. The branch is registered by HSBC France, a company incorporated under the laws of France
as a société anonyme (registered number 775 670 284 RCS Paris), having its registered office at 103, avenue des Champs-Elysées,
75008 Paris, France. HSBC France is supervised by the European Central Bank, as part of the Single Supervisory Mechanism, the
French Prudential Supervisory and Resolution Authority (l’Autorité de Contrôle Prudentiel et de Résolution) as the French National
Competent Authority and the French Financial Markets Authority (l’Autorité des Marchés Financiers) for the activities carried
out over financial instruments or in financial markets.
Negative
pledge
The
Borrower will not create or allow any mortgage, charge, pledge, lien (other than a lien arising by operation of law) or other
encumbrance over all or any part of its assets or revenues or uncalled capital.
Pari
Passu Ranking
The
Borrower shall ensure that at all times any unsecured and unsubordinated claims of the Bank against it under the Finance Documents
to which it is a party rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors except
those creditors whose claims are mandatorily preferred by laws of general application to companies.
Miscellaneous
I
f
required by the Bank, the Borrower will pay any rental and other income from its assets which are the subject of any Security
into an account with the Bank or to such account as the Bank may require.
Sanctions
The
Borrower will not, directly or indirectly, use the proceeds of the Facility, or lend, contribute or otherwise make available such
proceeds to any Subsidiary, joint venture partner or other Person (as defined below), (i) to fund any activities or business of
or with any Person, or in any country or territory, that, at the time of such funding, is, or whose government is, the subject
of Sanctions or (ii) in any other manner that would result in a violation of Sanctions by any Person (including any Person participating
in the Facility, whether as underwriter, advisor, investor or otherwise).
Anti-corruption
and anti-money laundering
The
Borrower undertakes to implement necessary measures and relevant policies and procedures in order to prevent any infringement
by any member of the Group of anti-corruption and anti-money laundering laws and regulations in force in any competent jurisdiction,
including, but not limited to, the Criminal Justice (Corruption Offences) Act 2018 and the Criminal Justice (Money Laundering
and Terrorist Financing) Acts 2010 - 2018.
RESTRICTED
- HSBC France, Dublin Branch
1
Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820, Ireland
Tel:
+353-1-635-6000 Website: www.hsbc.ie
HSBC
France, Dublin Branch is a registered business name of HSBC France, a branch registered in Ireland (registration number 908966)
having its registered office at 1 Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820 and regulated by the Central Bank
of Ireland for conduct of business rules. The branch is registered by HSBC France, a company incorporated under the laws of France
as a société anonyme (registered number 775 670 284 RCS Paris), having its registered office at 103, avenue des Champs-Elysées,
75008 Paris, France. HSBC France is supervised by the European Central Bank, as part of the Single Supervisory Mechanism, the
French Prudential Supervisory and Resolution Authority (l’Autorité de Contrôle Prudentiel et de Résolution) as the French National
Competent Authority and the French Financial Markets Authority (l’Autorité des Marchés Financiers) for the activities carried
out over financial instruments or in financial markets.
REPRESENTATIONS
SCHEDULE
Status
The
Borrower is duly incorporated with limited liability under the laws of Ireland and has the power to own its assets and carry on
its business as it is being conducted.
Power
and authority
The
Borrower has:
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(a)
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the
power and authority to enter into the Finance Documents to which it is a party and to
perform and observe the obligations under those documents; and
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(b)
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has
completed the Security to which it is a party in accordance with its constitutional documents.
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Obligations
under the Finance Documents
The
Borrower is in full compliance with its obligations under the Finance Documents to which it is a party and the entry into and
performance by the Borrower of the Finance Documents to which it is a party and the transactions contemplated thereby do not and
will not conflict with any law or regulation applicable to the Borrower or any party thereto or the constitutional documents of
the Borrower or any party thereto or with any agreement or instrument to which the Borrower or any such party is a party or by
which it is bound.
Environmental
Obligations
The
Borrower is in full compliance with the Environmental Obligations and the Borrower is not aware of any circumstance that may prevent
full compliance in the future.
No
misleading information
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(a)
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The
Borrower has disclosed to the Bank all facts to enable the Bank to consider whether to
make available the Facility to it.
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(b)
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All
information provided by or on behalf of the Borrower was true, complete and accurate
in all material respects as at the date it was provided and has not become materially
adversely misleading or incorrect.
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Centre
of main interests
For
the purposes of Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (recast) (the
Regulation
), the centre
of main interest (as that term is used in Article 3(1) of the Regulation) of the Borrower is situated in Ireland.
Pari
Passu ranking
The
Borrower’s payment obligations under the Finance Documents to which it is a party rank at least pari passu with the claims of
all its other unsecured and unsubordinated creditors, except for the obligations mandatorily preferred by laws of general application
to companies.
RESTRICTED
- HSBC France, Dublin Branch
1
Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820, Ireland
Tel:
+353-1-635-6000 Website: www.hsbc.ie
HSBC
France, Dublin Branch is a registered business name of HSBC France, a branch registered in Ireland (registration number 908966)
having its registered office at 1 Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820 and regulated by the Central Bank
of Ireland for conduct of business rules. The branch is registered by HSBC France, a company incorporated under the laws of France
as a société anonyme (registered number 775 670 284 RCS Paris), having its registered office at 103, avenue des Champs-Elysées,
75008 Paris, France. HSBC France is supervised by the European Central Bank, as part of the Single Supervisory Mechanism, the
French Prudential Supervisory and Resolution Authority (l’Autorité de Contrôle Prudentiel et de Résolution) as the French National
Competent Authority and the French Financial Markets Authority (l’Autorité des Marchés Financiers) for the activities carried
out over financial instruments or in financial markets.
Time
for making representations
Each
representation and warranty will be taken to be made by the Borrower daily until the Facility has been repaid in full by reference
to the facts and circumstances existing at the date the representation or warranty is made.
Sanctions
None
of the Borrower, any of its Subsidiaries, any director or officer, or any employee, agent, or affiliate, of the Borrower or any
of its Subsidiaries is an individual or entity (“
Person
”) that is, or is owned or controlled by Persons that
are, (i) the subject of any sanctions administered or enforced by the US Department of the Treasury’s Office of Foreign
Assets Control, the US Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury,
or the Hong Kong Monetary Authority (collectively, “
Sanctions
”), or (ii) located, organised or resident in
a country or territory that is, or whose government is, the subject of Sanctions, including, without limitation, currently, the
Crimea region, Cuba, Iran, North Korea, Sudan and Syria.
Anti-corruption
and anti-money laundering
Neither
the Borrower, nor any of its Affiliates, nor any of their agents, directors, employees or representatives, has engaged in an activity,
committed an act, or behaved in a way that may infringe any law or regulation intended to prevent or punish corruption or money
laundering in any jurisdiction in which the Borrower or another member of the Group carries on an activity or to which it is submitted
including, but not limited to, the Criminal Justice (Corruption Offences) Act 2018 and the Criminal Justice (Money Laundering
and Terrorist Financing) Acts 2010 - 2018.
In
addition, the Borrower has instituted and maintains policies and procedures designed to promote and achieve compliance with any
applicable anti-corruption and anti-money laundering laws and regulations.
RESTRICTED
- HSBC France, Dublin Branch
1
Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820, Ireland
Tel:
+353-1-635-6000 Website:
www.hsbc.ie
HSBC
France, Dublin Branch is a registered business name of HSBC France, a branch registered in Ireland (registration number 908966)
having its registered office at 1 Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820 and regulated by the Central Bank
of Ireland for conduct of business rules. The branch is registered by HSBC France, a company incorporated under the laws of France
as a société anonyme (registered number 775 670 284 RCS Paris), having its registered office at 103, avenue des
Champs-Elysées, 75008 Paris, France. HSBC France is supervised by the European Central Bank, as part of the Single Supervisory
Mechanism, the French Prudential Supervisory and Resolution Authority (l’Autorité de Contrôle Prudentiel et
de Résolution) as the French National Competent Authority and the French Financial Markets Authority (l’Autorité
des Marchés Financiers) for the activities carried out over financial instruments or in financial markets.
GENERAL
TERMS AND CONDITIONS
The
following terms and conditions will apply to the Facility.
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(a)
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The
Bank will make payments from the Borrower’s account if there are cleared funds in the
Borrower’s account, or they are covered by the Limit or by an increase to the Limit that
the Bank has approved following a formal or an informal request from the Borrower.
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(b)
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I
f
the Bank does not agree to a formal or an informal request from the Borrower for an increase to the Limit, then the Bank will
not usually make any payment authorised by the Borrower that would cause its account to go over the Limit.
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|
(a)
|
Interest
will be calculated on a daily basis and on the basis that there are 360 days in each
year (or where practice in the relevant interbank market for the currency in question
differs, in accordance with that market practice). Interest calculated on this basis
will be payable in respect of each of the 360 days in a calendar year.
|
|
|
(b)
|
Interest
will be debited in arrears to the Facility Current Account on the Bank’s quarterly charging
dates. On the dates interest (or any other charge) is debited, interest will become payable
on any borrowings created by such debit.
|
|
|
(c)
|
The
Bank may, from time to time and at its discretion, change its interest rates.
|
|
|
(d)
|
If
the Bank demands repayment of the Facility, interest after demand will be charged at
the same rates and on the same basis as before demand.
|
|
3
|
Interest on Borrowings Over the Limit
|
If
the Limit is exceeded, the Bank may charge interest at higher rates than set out in the Facility Letter.
|
4
|
Charges for Borrowings Over the Limit
|
|
|
(a)
|
If
borrowings are over the Limit, in addition to charging interest as set out in the Facility
Letter, the Bank may also charge a daily overdraft fee at the rate specified by the Bank
from time to time.
|
|
|
(b)
|
The
daily overdraft fee will be debited in arrears to the Facility Current Account at least
14 days after the interest charging dates on the Borrower’s accounts with the Bank.
|
|
|
(c)
|
As
an alternative to the daily overdraft fee, or in addition to that fee, the Bank may charge
management fees if time is spent monitoring the Borrower’s accounts or the circumstances
otherwise require.
|
|
|
(d)
|
The
Bank will debit any such management fees to the Facility Current Account and will tell
the Borrower the amount of such fees before debiting them.
|
RESTRICTED
- HSBC France, Dublin Branch
1
Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820, Ireland
Tel:
+353-1-635-6000 Website: www.hsbc.ie
HSBC
France, Dublin Branch is a registered business name of HSBC France, a branch registered in Ireland (registration number 908966)
having its registered office at 1 Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820 and regulated by the Central Bank
of Ireland for conduct of business rules. The branch is registered by HSBC France, a company incorporated under the laws of France
as a société anonyme (registered number 775 670 284 RCS Paris), having its registered office at 103, avenue des Champs-Elysées,
75008 Paris, France. HSBC France is supervised by the European Central Bank, as part of the Single Supervisory Mechanism, the
French Prudential Supervisory and Resolution Authority (l’Autorité de Contrôle Prudentiel et de Résolution) as the French National
Competent Authority and the French Financial Markets Authority (l’Autorité des Marchés Financiers) for the activities carried
out over financial instruments or in financial markets.
|
|
(a)
|
The
Borrower will pay to the Bank the amount of all costs and expenses (including any legal,security
and valuation fees), stamp duty, taxes and other charges and registration costs incurred
or charged by the Bank in connection with:
|
|
|
(i)
|
the
negotiation, preparation, administration, amendment, variation, replacement or supervision
of the Facility or any Finance Document; and
|
|
|
(ii)
|
the
enforcement of or the preservation of any rights under any Finance Document and any proceedings
instituted by or against the Bank as a consequence of taking or holding the Security
or enforcing these rights.
|
|
|
(b)
|
The
Bank will debit these costs to the Facility Current Account and will tell the Borrower
of theamount of such costs before they are debited.
|
The
Borrower will indemnify the Bank on demand against any cost, loss or liability incurred by the Bank in connection with or arising
out of:
|
|
(a)
|
the
application of the Facility or any part of it by the Borrower; and/or
|
|
|
(b)
|
the
provision of the Facility or any other banking facilities by the Bank to the Borrower;
and/or
|
|
|
(c)
|
the
Bank having a security interest in any assets of the Borrower or any other person providing
Security, including:
|
|
|
(i)
|
those
incurred in connection with any litigation, arbitration or administrative proceedings
or regulatory enquiry concerning the Facility or its application; or
|
|
|
(ii)
|
in
respect of a breach of, or a failure to meet, any Environmental Obligations.
|
Any
demand or notice given by the Bank under the Facility Letter may be:
|
|
(a)
|
by
letter addressed to the Borrower or any officer of the Borrower sent by post to or left
at the Borrower’s address last known to the Bank or at the Borrower’s registered office;
or
|
|
|
(b)
|
by
fax or other electronic means to the Borrower’s last known fax number or electronic mail
address. If sent by post, the demand or notice will be taken to have been made or given
at noon the second day following the day the letter was posted. If sent by fax or other
electronic means, the demand or notice will be taken to have been made or given at the
time of transmission.
|
Unless
otherwise advised by the Bank any notices given by the Borrower to the Bank under this letter will be delivered to HSBC France,
Dublin Branch, 1 Grand Canal Square, Grand Canal Harbour, Dublin 2.
RESTRICTED
- HSBC France, Dublin Branch
1
Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820, Ireland
Tel:
+353-1-635-6000 Website: www.hsbc.ie
HSBC
France, Dublin Branch is a registered business name of HSBC France, a branch registered in Ireland (registration number 908966)
having its registered office at 1 Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820 and regulated by the Central Bank
of Ireland for conduct of business rules. The branch is registered by HSBC France, a company incorporated under the laws of France
as a société anonyme (registered number 775 670 284 RCS Paris), having its registered office at 103, avenue des Champs-Elysées,
75008 Paris, France. HSBC France is supervised by the European Central Bank, as part of the Single Supervisory Mechanism, the
French Prudential Supervisory and Resolution Authority (l’Autorité de Contrôle Prudentiel et de Résolution) as the French National
Competent Authority and the French Financial Markets Authority (l’Autorité des Marchés Financiers) for the activities carried
out over financial instruments or in financial markets.
If
the Borrower consists of two or more persons (whether corporates, partners or otherwise):
|
|
(a)
|
they
will be jointly and individually liable to the Bank for the Facility and for any other
moneys from time to time owing to the Bank in respect of the Facility;
|
|
|
(b)
|
any
notice given to any one of them under the Facility Letter will be notice to all of
them;
|
|
|
(c)
|
if
at any time any one or more of the provisions of the Facility Letter is or becomes invalid,
illegal or unenforceable against any one or more of them, it will remain enforceable
against the others as if it had been addressed to only to those others;
|
|
|
(d)
|
the
Bank’s rights against any one such person will not be impaired, discharged or otherwise
affected by:
|
|
|
●
|
the
Bank granting any time or indulgence to any of the others;
|
|
|
●
|
the
Bank varying or releasing any of the others from any liability to the Bank or any Security
relating to such liability;
|
|
|
●
|
the
Bank failing to take any such Security; and/or
|
|
|
●
|
any
act, event or omission which would, but for these provisions, impair, discharge or otherwise
affect any of such rights of the Bank; and
|
|
|
(e)
|
no
such person will be entitled without the written consent of the Bank to exercise
any right or make any claim against any of the others (including any right of subrogation or right to prove
in a liquidation) arising by virtue of any payment made in accordance with the Facility
Letter or otherwise in connection with the Facility Letter.
|
|
|
(a)
|
All
payments by the Borrower will be made in cleared funds in the currency in which the payment
is due on the due date for payment or, if that day is not a Business Day, on the next
succeeding Business Day.
|
|
|
(b)
|
All
payments will be made without any deduction or withholding (whether in respect of set-off,
counterclaim, duties, taxes, charges or otherwise).
|
|
|
(c)
|
If
the Borrower is required by law to make any deduction or withholding from a payment,
it will promptly pay to the Bank such additional sums as will make the net sum received by the Bank equal to the full sum payable
had there been no deduction or withholding.
|
|
|
(a)
|
To
the extent that the Bank is not compensated under any other provision in the Facility Letter, the Borrower will on demand by the
Bank compensate the Bank either:
|
|
|
(i)
|
by
an increase in the interest rate; or
|
|
|
(ii)
|
by
such other payments as the Bank may require,
|
RESTRICTED
- HSBC France, Dublin Branch
1
Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820, Ireland
Tel:
+353-1-635-6000 Website: www.hsbc.ie
HSBC
France, Dublin Branch is a registered business name of HSBC France, a branch registered in Ireland (registration number 908966)
having its registered office at 1 Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820 and regulated by the Central Bank
of Ireland for conduct of business rules. The branch is registered by HSBC France, a company incorporated under the laws of France
as a société anonyme (registered number 775 670 284 RCS Paris), having its registered office at 103, avenue des Champs-Elysées,
75008 Paris, France. HSBC France is supervised by the European Central Bank, as part of the Single Supervisory Mechanism, the
French Prudential Supervisory and Resolution Authority (l’Autorité de Contrôle Prudentiel et de Résolution) as the French National
Competent Authority and the French Financial Markets Authority (l’Autorité des Marchés Financiers) for the activities carried
out over financial instruments or in financial markets.
in
respect of each additional or increased cost incurred by the Bank or reduction in the rate of return from the Facility resulting
from:
|
|
●
|
the
introduction of or any change in (or interpretation, administration or application of)
any law or regulation after the date of the Facility Letter; or
|
|
|
●
|
compliance
with any law or regulation made after the date of the Facility Letter.
|
This
will include the consequences of any tax in respect of any payment received or receivable by the Bank under the Facility (other
than tax assessable on its overall net income).
|
|
(b)
|
The
Bank will provide written notice to the Borrower specifying the amount of the payments
or increase in the interest rate (as the case may be) required in respect of any such additional
or increased cost or reduction in return. However, the Bank will not be required to disclose
any information relating to the manner in which the Bank or any affiliated company of
the Bank employ their capital or arrange their internal financial affairs.
|
|
|
(c)
|
In
(a) above the term
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, agency, department or regulatory, self-regulatory or other authority
or organisation.
|
|
|
(d)
|
In
(b) above the term
affiliated company
includes any subsidiary or holding company
as such terms are defined in section 7 and section 8 respectively of the Companies Act
2014 (as the same may be amended, varied or replaced) or any other subsidiary of any
such holding company.
|
|
|
(a)
|
No
delay or failure by the Bank in exercising any right or remedy will be taken to mean
or take effect as a waiver or release of that right or remedy. Each party will always be entitled
to exercise all its rights and remedies unless it has expressly waived them in writing.
|
|
|
(b)
|
If
at any time any one or more of the provisions of the Facility Letter is or becomes invalid,
illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining
provisions of the Facility Letter will not be in any way affected.
|
|
|
(c)
|
If
it becomes unlawful for the Bank to perform all or any of its obligations under the Facility
Letter, then the Bank will notify the Borrower and:
|
|
|
(i)
|
the
Borrower will repay any part of the Facility which has been utilised together with all
other amounts due and owing to the Bank; and
|
|
|
(ii)
|
any
part of the Facility that has not been utilised will be cancelled.
|
|
|
(d)
|
The
Borrower may sign any number of copies of the Facility Letter and these copies together
with the copy or copies signed on behalf of the Bank, will form a single document.
|
|
12
|
Governing Law and Enforcement
|
|
|
(a)
|
The
Facility Letter, and all non-contractual obligations arising out of it, will be governed
by and construed in accordance with the laws of Ireland and all claims and disputes (including
non-contractual claims and disputes) arising out of or in connection with the Facility
Letter or its subject matter, negotiation or formation will be determined in accordance
with the laws of Ireland.
|
|
|
(b)
|
The
Borrower and the Bank both submit to the non-exclusive jurisdiction of the courts of
Ireland in relation to all claims, disputes, differences or other matters (including
non-contractual claims, disputes, differences or other matters) arising out of or in
connection with the Facility.
|
|
|
(i)
|
waives
any objection to the courts of Ireland including an objection on grounds of inconvenience;
and
|
|
|
(ii)
|
agrees
that a judgment or order of a court of Ireland in connection with the Finance Documents
is binding on it and may be enforced against it in the courts of any other jurisdiction.
|
RESTRICTED
- HSBC France, Dublin Branch
1
Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820, Ireland
Tel:
+353-1-635-6000 Website: www.hsbc.ie
HSBC
France, Dublin Branch is a registered business name of HSBC France, a branch registered in Ireland (registration number 908966)
having its registered office at 1 Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820 and regulated by the Central Bank
of Ireland for conduct of business rules. The branch is registered by HSBC France, a company incorporated under the laws of France
as a société anonyme (registered number 775 670 284 RCS Paris), having its registered office at 103, avenue des Champs-Elysées,
75008 Paris, France. HSBC France is supervised by the European Central Bank, as part of the Single Supervisory Mechanism, the
French Prudential Supervisory and Resolution Authority (l’Autorité de Contrôle Prudentiel et de Résolution) as the French National
Competent Authority and the French Financial Markets Authority (l’Autorité des Marchés Financiers) for the activities carried
out over financial instruments or in financial markets.
DEFINITIONS
Affiliate
means, in relation to a company, (i) any entity held or controlled, whether directly or indirectly, by that company, (ii)
any entity holding or controlling that company, whether directly or indirectly, alone or in concert with others, and (iii) any
entity held or controlled, whether directly or indirectly, by any of the companies specified in point (ii).
Business
Day
means a day (other than a Saturday or Sunday) on which the relevant banking offices and markets are open for business
for the currency and transaction involved;
European
Central Bank Rate
means the main refinancing operations (fixed rate) published by the European Central Bank on https://www.ecb.europa.eu/home/html/index.en.html.
The European Central Bank Rate is -0.40% per annum at the date of this Facility Letter but it may change from time to time.
Facility
Current Account
means the current account of the Borrower with the Bank on which the Facility is run;
Finance
Documents
mean the Facility Letter, any Security Document and any other document designated as a Finance Document by the Bank
and the Borrower;
Group
means Majesco and its Subsidiaries from time to time and “member of the Group” shall be construed accordingly;
Security
Document
means any document to be executed in order to create the Security; and
Subsidiary
has the meaning given to such expression by section 7 of the Companies Act 2014.
RESTRICTED
- HSBC France, Dublin Branch
1
Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820, Ireland
Tel:
+353-1-635-6000 Website: www.hsbc.ie
HSBC
France, Dublin Branch is a registered business name of HSBC France, a branch registered in Ireland (registration number 908966)
having its registered office at 1 Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820 and regulated by the Central Bank
of Ireland for conduct of business rules. The branch is registered by HSBC France, a company incorporated under the laws of France
as a société anonyme (registered number 775 670 284 RCS Paris), having its registered office at 103, avenue des Champs-Elysées,
75008 Paris, France. HSBC France is supervised by the European Central Bank, as part of the Single Supervisory Mechanism, the
French Prudential Supervisory and Resolution Authority (l’Autorité de Contrôle Prudentiel et de Résolution) as the French National
Competent Authority and the French Financial Markets Authority (l’Autorité des Marchés Financiers) for the activities carried
out over financial instruments or in financial markets.
ACCEPTANCE
BY THE BORROWER
We
Exaxe Limited accept the offer and agree to all the terms and conditions contained in the Facility Letter dated ___June 2019.
Date:
17, July 2019
|
Authorised
Signatory:
|
|
|
Witness
412
MOUNT KEMBLE AVE, SUITE 110C, MORRISTOWN, NJ 07960 USA
Address
VP.
FINANCE MAJESCO
Occupation
Authorised
Signatory: __________________
Witness
Address
Occupation
RESTRICTED
- HSBC France, Dublin Branch
1
Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820, Ireland
Tel:
+353-1-635-6000 Website: www.hsbc.ie
HSBC
France, Dublin Branch is a registered business name of HSBC France, a branch registered in Ireland (registration number 908966)
having its registered office at 1 Grand Canal Square, Grand Canal Harbour, Dublin 2, D02 P820 and regulated by the Central Bank
of Ireland for conduct of business rules. The branch is registered by HSBC France, a company incorporated under the laws of France
as a société anonyme (registered number 775 670 284 RCS Paris), having its registered office at 103, avenue des Champs-Elysées,
75008 Paris, France. HSBC France is supervised by the European Central Bank, as part of the Single Supervisory Mechanism, the
French Prudential Supervisory and Resolution Authority (l’Autorité de Contrôle Prudentiel et de Résolution) as the French National
Competent Authority and the French Financial Markets Authority (l’Autorité des Marchés Financiers) for the activities carried
out over financial instruments or in financial markets.
15
