EXECUTION VERSION
AMENDMENT, dated as of January 30, 2006 (this "AMENDMENT"), to the
Guarantee Agreement dated as of October 21, 2005, among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated ("ISSUING LENDER"), VTL (UK) Limited ("BORROWER"), Varde
Partners, Inc. (together with the Issuing Lender, the "LENDERS") and others
(the "ORIGINAL AGREEMENT").
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R E C I T A L S:
WHEREAS, the Borrower is party to a revolving loan facility granted by
Lloyds TSB Bank plc ("LLOYDS") dated as of October 21, 2005 (the "LLOYDS OCTOBER
FACILITY") pursuant to which it may borrow up to an aggregate of
(pound)5,750,000 (the "FACILITY LIMIT");
WHEREAS, pursuant to the Original Agreement, and as a condition to the
Lloyds October Facility, the Issuing Lender agreed to guarantee the payment of
any principal amount and interest by the Borrower under the Lloyds October
Facility up to (pound)6,000,000 (the "GUARANTEED AMOUNT"), as reflected in the
Guarantee (as defined in the Original Agreement);
WHEREAS, the Borrower desires, and the Issuing Lender has agreed, to
increase the Facility Limit from (pound)5,750,000 to (pound)7,000,000 and to
extend the expiration date of the Lloyds October Facility (the "EXPIRY DATE") to
April 30, 2006;
WHEREAS, Lloyds has agreed to so increase the Facility Limit and extend the
Expiry Date provided that, INTER ALIA, the Issuing Lender agrees to increase the
Guaranteed Amount to (pound)7,250,000 and to extend the expiration date of the
Guarantee to May 31, 2006;
WHEREAS, the Issuing Lender is willing to agree to increase the Guaranteed
Amount to (pound)7,250,000 subject to the Borrower agreeing to certain
amendments to the Original Agreement; and
WHEREAS, the parties hereto desire to amend the Original Agreement in
accordance with Section 8.1 thereof, in order to facilitate the above-referenced
amendments to the Lloyds October Facility.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the mutual promises herein made,
the undersigned, intending to be legally bound, hereby agree as set forth
hereinbelow. Capitalized terms not otherwise defined shall have the meanings
ascribed thereto in the Original Agreement.
1. AMENDMENTS TO THE ORIGINAL AGREEMENT.
(a) The definitions of the following terms set forth in Section 1.1 of the
Original Agreement are hereby amended and restated to read in their respective
entireties as follows:
"GUARANTEE": the guarantee to be issued by the Issuing Lender,
substantially in the form attached hereto as Exhibit A, as the same may be
amended from time to time.
"LETTER AGREEMENTS": (a) those certain letter agreements, dated
October 21, 2005 and January 30, 2006, respectively, by Holding and the
holders of the Existing
Notes, and (b) those certain letter agreements dated October 21, 2005 and
January 30, 2006, respectively, by Holding and the holders of the New
Notes.
"LLOYDS FACILITY": the revolving loan facility between Lloyds TSB Bank
plc, as a lender, and the Borrower, as a borrower, dated as of October 21,
2005, as the same may be amended from time to time, in form and substance
acceptable to the Issuing Lender and the other Lenders.
"TOTAL COMMITMENTS": at any time, the aggregate amount of the
Commitments then in effect. The amount of the Total Commitments as of
January 30, 2006 is (pound)7,250,000.
(b) Schedule 1.2 to the Original Agreement is hereby amended and replaced
with Schedule 1.2 attached hereto.
(c) The following Section 2.2(d) is hereby inserted immediately after
Section 2.2(c) and immediately before Section 2.3 of the Original Agreement:
"(d) In addition to the foregoing fees, the Borrower agrees to pay to the
Issuing Lender an amendment fee in an amount equal to $100,000, payable on
the Termination Date. Such fee shall be shared ratably among the Lenders."
2. FURTHER ASSURANCES. In consideration for the increase in the amount of
the Total Commitments and other consideration provided for in this Amendment, as
security for the due and punctual payment of the Guarantee Obligations, Borrower
agrees that at any time and from time to time, at Borrower's expense, Borrower
will promptly execute and deliver all further instruments and documents, and
take all further action that the Lenders may reasonably request, in order to
perfect and protect the Security Interest granted in respect of the Guarantee
Obligations or to enable the Lenders to exercise or enforce their rights, powers
and remedies with respect to the Security Interest and any other collateral that
may secure the Guarantee Obligations in the future.
3. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to, and
agrees with, the Lenders that:
(a) Borrower has the corporate power and authority to execute, deliver and
perform, as applicable, its obligations under this Amendment and any other
documents contemplated hereby or thereby to which it is or will be a party;
(b) The execution, delivery and performance of this Amendment (a) have been
duly authorized by all necessary corporate action on the part of Borrower, (b)
will not constitute a violation of any provision of any Applicable Law or any
order of any Governmental Authority applicable to Borrower or any of its
properties or assets, (c) will not violate any provision of the certificate of
incorporation, by-laws, or any other organizational document of, or other
similar instrument to which Borrower is a party or by which Borrower or any of
its properties or assets are bound or to which Borrower is subject, (d) will not
be in conflict with, result in a breach of, or constitute (with due notice or
lapse of time or both) a default under, or create any right to terminate, any
indenture, agreement, bond, note, mortgage, deed of trust, or other instrument
to which Borrower is a party or by which Borrower or any of its properties or
assets are bound or to which Borrower is subject and (e) will not result in the
creation or
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imposition of (or the obligation to create or impose) any lien, charge or
encumbrance of any nature whatsoever upon any of the properties or assets of
Borrower other than pursuant to the Security Documents or the other Guarantee
Documents (as amended);
(c) Upon its execution and delivery by Borrower, this Amendment and each
Guarantee Document amended pursuant hereto shall constitute or continue to
constitute the legal, valid and binding obligation of Borrower, enforceable
against Borrower in accordance with its terms, except as such enforceability may
be limited by applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general principles of equity, irrespective of
whether such enforceability is considered in a proceeding at law or equity; and
(d) Borrower is not in violation of any Applicable Law or any restrictions
of record or agreements affecting the Security Interest, except for violations
which in the aggregate could not reasonably be expected to have a Material
Adverse Effect.
4. CONDITIONS TO EFFECTIVENESS. This Amendment shall become effective on
the date (the "EFFECTIVE DATE") upon which the Lenders notify the Borrower that
they are satisfied that each of the following conditions have been met:
(a) The Lenders shall have received an executed counterpart of this
Amendment bearing the signature of Borrower;
(b) Borrower shall have delivered to the Lenders such other documents and
information as the Lenders may reasonably request;
(c) Borrower shall have paid to Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇ an amount
equal to $140,000, which amount represents due and unpaid legal fees incurred in
connection with the restructuring of the Borrower; and
(d) The Lenders shall have received reimbursement or other payment of all
reasonable costs, fees and expenses of the Lenders (including, without
limitation, the fees and disbursements of Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇ not
otherwise satisfied under Section 4(c) above), incurred in connection with the
restructuring of the Borrower, including without limitation, this Amendment, and
all other documents to be delivered in connection herewith, it being understood
and agreed that the obligations of Borrower set forth in Section 8.9 of the
Original Agreement shall extend to the negotiation, preparation, execution and
delivery of this Amendment and all other documents to be delivered herewith.
5. NO OTHER EFFECT. Except as expressly provided otherwise in this
Amendment, the terms and conditions of this Amendment shall not operate as a
waiver by the Lenders of, or otherwise prejudice the Lenders' rights, remedies
or powers under the Original Agreement or any applicable law. Except as
expressly provided herein:
(a) No terms or provisions of any Guarantee Document are waived, modified
or changed by this Amendment; and
(b) The terms and provisions of the Original Document shall continue in
full force and effect.
6. REAFFIRMATION.
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(a) The Borrower hereby acknowledges and reaffirms all of its obligations
and duties under the Guarantee Documents; and
(b) The Borrower and each of the Lenders hereby acknowledge and reaffirm
that the Lenders have and shall continue to have a valid and perfected Security
Interest, as set forth in the Security Documents.
7. MISCELLANEOUS.
(a) This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
this Amendment. This Amendment may be executed by facsimile.
(b) If any provision of this Amendment shall be adjudicated to be invalid
or unenforceable, then such provision shall be deemed amended to delete
therefrom the portion thus adjudicated to be invalid or unenforceable, such
deletion to apply only with respect to the operation of such provision in the
particular jurisdiction in which such adjudication is made.
(c) This Amendment shall be construed in accordance with the internal laws
of the State of New York without regard to the conflicts of laws provisions
thereof. Each party hereto hereby irrevocably submits to the jurisdiction of any
court of the State of New York located in the County of New York or the United
States District Court for the Southern District of the State of New York, any
appellate courts from any thereof (any such court, a "New York Court") or any
court of the United Kingdom located in London, or any appellate courts from any
thereof (any such court, a "U.K. Court"), for the purpose of any suit, action or
other proceeding arising out of or relating to this Amendment or under any
applicable securities laws and arising out of the foregoing, which is brought by
or against such party, and each such party hereby irrevocably agrees that all
claims in respect of any such suit, action or proceeding will be heard and
determined in any New York Court or U.K. Court. Each such party hereby agrees
not to commence any action, suit or proceeding relating to this Amendment other
than in a New York Court except to the extent mandated by applicable law. Each
such party hereby waives any objection that it may now or hereafter have to the
venue of any such suit, action or proceeding in any such court or that such
suit, action or proceeding was brought in an in-convenient court and agree not
to plead or claim the same. EACH PARTY TO THIS AMENDMENT HEREBY EXPRESSLY WAIVES
ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
ARISING UNDER THIS AMENDMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT
THIS AMENDMENT, OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY, AND THAT ANY PARTY TO THIS AMENDMENT MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(d) All agreements of the Borrower and the Lenders hereunder shall bind
their respective successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
VTL (UK) LIMITED
By: /s/ ▇. ▇▇▇▇▇▇
Name: ▇. ▇▇▇▇▇▇
Title: Director
VIATEL HOLDING (BERMUDA) LIMITED
By: /s/ ▇. ▇▇▇▇▇
Name: ▇. ▇▇▇▇▇
Title: CEO, Director
VIATEL INTERNET LIMITED
By: /s/ ▇. ▇▇▇▇▇▇
Name: ▇. ▇▇▇▇▇▇
Title: Director
VIATEL BROADBAND LIMITED
By: /s/ ▇. ▇▇▇▇▇▇
Name: ▇. ▇▇▇▇▇▇
Title: Director
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
as the Issuing Lender and
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
VARDE PARTNERS, INC., as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Partner
EXECUTION VERSION
SCHEDULE 1.2
REVOLVING COMMITMENTS
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LENDER AMOUNT
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated (pound)5,843,500.00
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Varde Partners, Inc. 1,406,500.00
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TOTAL (pound)7,250,000.00
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