AMENDMENT NO. 4, WAIVER AND CONSENT
Exhibit 4.16
AMENDMENT NO. 4, WAIVER AND CONSENT
Amendment No. 4, Waiver and Consent, dated as of December 21, 2006 (this “Amendment No.
4”), relating to the Investment and Note Purchase Agreement (the “Existing Agreement”),
dated as of June 23, 2005, by and among Viatel Holding (Bermuda) Limited (the “Company”)
and the purchasers named therein and the Company’s Senior Secured Increasing Rate Notes Due 2007
(the “New Notes”). Capitalized terms used in this Amendment No. 4 and not defined shall
have the meanings assigned to them in the Existing Agreement.
WHEREAS, the parties hereto have agreed that the parties set forth on Schedule I attached
hereto (“New Purchasers”) will purchase additional New Notes in an aggregate principal
amount equal to $13,011,120.00 (“December 2006 Notes”);
WHEREAS, the parties have agreed, subject to and upon the terms and conditions set forth
herein, to amend the Existing Agreement as set forth herein in order to provide for the December
2006 Notes;
WHEREAS, the Board of Directors of the Company has determined that entering into this
Amendment No. 4 and related documentation is in the best interests of the Company and have approved
and authorized the execution of the documents necessary to give effect to this Amendment No. 4 and
related documentation; and
WHEREAS, each of the holders of the New Notes (the “New Holders”) has determined that
this Amendment No. 4 is in its best interests and has approved this Amendment No. 4;
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows.
1. Consent to Special Share Holder Action. Each New Holder hereby consents to the
holder of the Special Share entering into a consent pursuant to Section 76A of the Company’s
bye-laws that will allow the Company to issue the December 2006 Notes pursuant to this Amendment
No. 4 and to execute any other documents or transactions related thereto.
2. Amendment to Existing Agreement. Each of the Company and each New Holder hereby
agrees that the Existing Agreement is hereby amended by:
(i) Replacing the second paragraph of the recitals with the following paragraph:
“WHEREAS, the Company proposes to issue and sell US$16,000,000 aggregate principal amount
of its Senior Secured Increasing Rate Notes due 2007 (the “2005 Notes”), US$8,802,600
aggregate principal amount of its Tranche A Senior Secured Increasing Rate Notes due 2007 (the
“2006 Notes”), and US$13,011,120.00 aggregate principal amount of its Tranche B Senior
Secured Increasing Rate Notes due 2007 (the “December 2006 Notes”) to the several
Purchasers;”
(ii) Inserting the following new definition in alphabetical order in Section 1.01 of the
Existing Agreement:
““December 2006 Notes” has the meaning set forth in the recitals.”
(iii) Replacing the definition of Notes in Section 1.01 with the following definition:
““Notes” means the 2005 Notes, the 2006 Notes and the December 2006 Notes.”
(iv) Replacing the existing Schedule I with the Schedule I attached hereto.
3. Waiver to 2005 Notes and 2006 Notes.
(i) For the avoidance of doubt, the holders of the 2005 Notes and the holders of the 2006
Notes hereby agree to waive the requirement pursuant to Section 5.2(d) of such notes that the
Company use the proceeds of the issuance of the New Notes to redeem such 2005 Notes and 2006 Notes.
4. Delivery of and Payment for the Notes.
(i) Subject to the terms and conditions set forth herein and in the Existing Agreement,
delivery of and payment for the December 2006 Notes shall be made at the offices of Wachtell,
Lipton, Xxxxx & Xxxx, or at such other place as shall be agreed upon by the New Purchasers and the
Company, at 10:00 am (New York time) on the first Business Day following the satisfaction or waiver
of all of the conditions set forth in paragraph 6 hereof (other than those conditions that by their
nature are to be satisfied or waived on the Amendment No. 4 Closing Date, but subject to the
satisfaction or waiver of those conditions), or at such other time and date as shall be agreed upon
by the New Purchasers and the Company (such date and time of payment and delivery being referred to
herein as the “Amendment No. 4 Closing Date”).
(ii) On the Amendment No. 4 Closing Date, payment of the purchase price for the December 2006
Notes shall be made to the Company by wire or book-entry transfer in immediately available funds to
such account or accounts as the Company shall specify prior to the Amendment No. 4 Closing Date or
by such other means as the parties hereto shall agree prior to the Amendment No. 4 Closing Date
against delivery to the New Purchasers of the certificates evidencing the December 2006 Notes.
Time shall be of the essence, and delivery at the time and place specified pursuant to this
Amendment No. 4 is a further condition of the obligations of the New Purchasers hereunder. Upon
delivery, the December 2006 Notes shall be in definitive certificated form, registered in such
names and in such denominations as the New Purchasers shall have requested in writing prior to the
Amendment No. 4 Closing Date.
(iii) When delivered by the Company on the Amendment No. 4 Closing Date, the December 2006
Notes shall be fully authorized, duly and validly issued, and free and clear of Liens (other than
Liens specifically contemplated by the Transaction Documents).
5. Further Assurances. In consideration for the purchase of the December 2006 Notes
and other consideration provided for in this Amendment No. 4, as security for the due and punctual
payment of the December 2006 Notes, the Company agrees that at any time and from time to time, at
the Company’s expense, the Company 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 (as defined in the New Notes) granted in respect of the New Notes
or to enable the New Holders to exercise or enforce their rights, powers and remedies with respect
to the Security Interest and any other collateral that may secure the New Notes in the future.
6. Representations and Warranties.
(i) The Company represents and warrants to, and agrees with, the New Holders that:
(a) The Company has the corporate power and authority to execute, deliver and perform, as
applicable, its obligations under this Amendment No. 4 and any other documents contemplated hereby
to which it is or will be a party;
(b) The execution, delivery and performance of this Amendment No. 4 (a) have been duly
authorized by all necessary corporate action on the part of the Company, (b) will not constitute a
violation of any provision of any Applicable Law or any order of any Governmental Authority
applicable to the Company or any of its properties or assets, (c) will not violate any provision of
the charter, bye-laws, or any other organizational document of, or other similar instrument to
which the Company is a party or by which the Company or any of its properties or assets are bound
or to which the Company 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 the Company is a party or by which the Company or any of its properties or assets are bound
or to which the Company is subject and (e) will not result in the creation or 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 the Company other than pursuant to the Security Documents or the
other Transaction Documents (as amended);
(c) Upon its execution and delivery by the Company, this Amendment No. 4 and each Transaction
Document amended pursuant hereto shall constitute or continue to constitute the legal, valid and
binding obligation of the Company, enforceable against the Company 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;
(d) The Company 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;
(e) As of the Amendment No. 4 Closing Date, there are no outstanding Defaults or Events of
Default (as defined in the New Notes) under the existing New Notes;
(f) The December 2006 Notes constitute Notes under the Existing Agreement and the other
Transaction Documents, including, without limitation, the Security Documents; and
(g) All representations and warranties set forth in the Existing Agreement and the other
Transaction Documents are true and correct in all material respects on and as of the Amendment No.
4 Closing Date with the same effect as if made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date or to the extent qualified by
the disclosure schedules hereto.
(ii) Each Purchaser severally as to itself, and not jointly, hereby represents and warrants to
the Company on the date hereof that all representations and warranties set forth in Section 4.02 of
the Existing Agreement are true and correct in all material respects on and as of the date of the
Amendment No. 4 Closing Date with the same effect as if made on and as of such date.
7. Conditions to Effectiveness. This Amendment No. 4 shall become effective on the
date upon which the New Holders notify the Company that they are satisfied that each of the
following conditions have been met:
(i) The New Holders shall have received an executed counterpart of this Amendment No. 4
bearing the signature of the Company;
(ii) The Company shall have delivered to the New Holders such other documents, agreements,
instruments and information as the New Holders may reasonably request;
(iii) The Company shall have included, in the principal amount of the December 2006 Notes, an
amendment fee equal to 2% of the purchase price of the December 2006 Notes, set forth as the
“Purchase Price of December 2006 Notes” in Schedule I attached hereto.
(iii) The New Holders 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, Xxxxx & Xxxx), incurred in connection with this Amendment No. 4, and all other
documents to be delivered in connection herewith;
(iv) The representations and warranties set forth herein and in Article III of the Existing
Agreement and in any other Transaction Documents then in existence shall be true and correct in all
material respects, and no Default or Event of Default under the existing New Notes shall have
occurred and be continuing; and
(v) The Company, the Law Debenture Trust Corporation P.L.C. and the holders of the 2005 Notes
shall have executed and delivered to the New Holders an executed counterpart of Amendment No. 1 to
the Subordination Agreement dated as of March 14, 2006, between the holders of the 2005 Notes,
which amendment shall be in form and substance satisfactory to the New Holders.
8. Governing Law; Jurisdiction; Waiver of Trial by Jury. This Amendment No. 4 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
No. 4 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 No. 4 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 inconvenient court and agree not to plead or claim the same. EACH PARTY TO THIS
AMENDMENT NO. 4 HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION ARISING UNDER THIS AMENDMENT NO. 4 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 NO. 4,
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 WAIVER AND CONSENT 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.
9. Separability. If any one or more of the provisions contained in this Amendment No.
4 shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions of this Amendment
No. 4 and such provision shall be interpreted to the fullest extent permitted by the law; provided
that the Company and each New Holder shall use their reasonable best efforts to find and employ an
alternative means to achieve the same or substantially the same result as that contemplated by such
provision.
10. Successors and Assigns. All agreements of the Company and the New Holders
hereunder shall bind their respective successors and assigns.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS HEREOF, THE PARTIES HERETO HAVE CAUSED THIS AMENDMENT NO. 4 TO BE DULY EXECUTED
AS OF THE DATE FIRST WRITTEN ABOVE:
VIATEL HOLDING (BERMUDA) LIMITED
By:
|
/s/ Xxxx Xxxxx | |||
| Name: Xxxx Xxxxx | ||||
| Title: Chief Executive Officer |
[SIGNATURE PAGE TO AMENDMENT TO INVESTMENT
AND NOTE PURCHASE AGREEMENT]
AND NOTE PURCHASE AGREEMENT]
AGREED AND ACCEPTED AS OF THE DATE FIRST WRITTEN ABOVE:
| XXXXXX XXXXXXX & CO. INCORPORATED | VÄRDE PARTNERS, INC. | |||||||||
By:
|
/s/ Xxxxxx Xxxxxx | By: | /s/ Xxxxxx Xxxxx | |||||||
| Name: Xxxxxx Xxxxxx | Name: Xxxxxx Xxxxx | |||||||||
| Title: Managing Director | Title: Managing Partner | |||||||||
STONEHILL INSTITUTIONAL PARTNERS, L.P.
By:
|
/s/ Xxxxx Xxxxxx | |||
| Name: Xxxxx Xxxxxx | ||||
| Title: General Partner |
[SIGNATURE PAGE TO AMENDMENT TO INVESTMENT
AND NOTE PURCHASE AGREEMENT]
AND NOTE PURCHASE AGREEMENT]
Schedule 1 – Purchasers
2005 Notes
| Principal Amount | ||||||
| Purchasers | Address | of 2005 Notes | ||||
Xxxxxx Xxxxxxx & Co.
Incorporated
|
Xxxxxx Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxx Xxxx, XX 00000 Attn: Xxxxxx X. Xxxxxx Tel: (000) 000-0000 Fax: (000) 000-0000 |
$ | 12,631,579 | |||
Värde Partners, Inc.
|
Värde Partners, Inc. 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx Xxxxx 0000 Xxxxxxxxxxx, XX 00000-0000 Attn: Xxxxxx X. Xxxxx Tel: (000) 000-0000 Fax: (000)000-0000 |
$ | 3,062,201 | |||
Stonehill
Institutional
Partners, X.X.
|
Xxxxxxxxx Institutional Partners, L.P.
000 Xxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 Tel: (000) 000-0000 Attn: Xxxxx Xxxxxx Xxxx Xxxxx Xxxxx Xxxxxx |
$ | 306,220 | |||
Total
|
$ | 16,000,000.00 | ||||
2006 Notes
| Principal Amount | ||||||
| Purchasers | Address | of 2006 Notes | ||||
Xxxxxx Xxxxxxx & Co.
Incorporated
|
Xxxxxx Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxx Xxxx, XX 00000 Attn: Xxxxxx X. Xxxxxx Tel: (000) 000-0000 Fax: (000) 000-0000 |
$ | 6,949,421 | |||
Värde Partners, Inc.
|
Värde Partners, Inc. 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx Xxxxx 0000 Xxxxxxxxxxx, XX 00000-0000 Attn: Xxxxxx X. Xxxxx Tel: (000) 000-0000 Fax: (000)000-0000 |
$ | 1,684,708 | |||
| Principal Amount | ||||||
| Purchasers | Address | of 2006 Notes | ||||
Stonehill
Institutional
Partners, X.X.
|
Xxxxxxxxx Institutional Partners, L.P.
000 Xxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 Tel: (000) 000-0000 Attn: Xxxxx Xxxxxx Xxxx Xxxxx Xxxxx Xxxxxx |
$ | 168,471 | |||
Total
|
$ | 8,802,600.00 | ||||
December 2006 Notes
| Principal Amount | Purchase Price of | |||||||||
| of December 2006 | December 2006 | |||||||||
| Purchasers | Address | Notes | Notes | |||||||
Xxxxxx Xxxxxxx & Co.
Incorporated
|
Xxxxxx Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxx Xxxx, XX 00000 Attn: Xxxxxx X. Xxxxxx Tel: (000) 000-0000 Fax: (000) 000-0000 |
$ | 10,271,936.84 | $ | 10,070,526.32 | |||||
Värde Partners, Inc.
|
Värde Partners, Inc. $ 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx Xxxxx 0000 Xxxxxxxxxxx, XX 00000-0000 Attn: Xxxxxx X. Xxxxx Tel: (000) 000-0000 Fax: (000)000-0000 |
$ | 2,490,166.51 | $ | 2,441,339.71 | |||||
Stonehill
Institutional
Partners, X.X.
|
Xxxxxxxxx
Institutional Partners,
L.P. 000 Xxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 Tel: (000) 000-0000 Attn: Xxxxx Xxxxxx Xxxx Xxxxx Xxxxx Xxxxxx |
$ | 249,016.65 | $ | 244,133.97 | |||||
Total
|
$ | 13,011,120.00 | $ | 12,756,000.00 | ||||||
