EXHIBIT 17
AMENDMENT NO. 1, WAIVER AND CONSENT
Amendment No. 1, Waiver and Consent, dated as of October 21, 2005
(this "WAIVER AND CONSENT"), 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 Waiver and Consent and not defined
shall have the meanings assigned to them in the Existing Agreement.
Whereas, VTL (UK) Limited ("VTL UK") and Lloyds Bank plc ("LLOYDS")
intend to enter into a loan facility to be dated the date hereof (the "LLOYDS
FACILITY") and executed simultaneously with this Waiver and Consent, to loan VTL
UK up to (pound)5,750,000. Whereas, VTL UK contemplates repaying any amounts
borrowed under the Lloyds Facility with the proceeds from the sale (the
"CYBERNET SALE") of Cybernet (Schweiz) AG ("CYBERNET") to Swisscom Fixnet AG
pursuant to the Share Purchase Agreement dated October 20, 2005, by and among
the Company, Viatel Holding (Europe) Limited and Swisscom Fixnet AG.
Whereas, Xxxxxx Xxxxxxx & Co. Incorporated ("XXXXXX XXXXXXX") is
agreeing, pursuant to and subject to the conditions contained in a guarantee to
be dated the date hereof (the "GUARANTEE") and executed simultaneously with this
Waiver and Consent, to guarantee VTL UK's obligations under the Lloyds Facility
up to (pound)6,000,000.
Whereas, VTL UK, the Company, Viatel Broadband Limited, Viatel
Internet Limited, Xxxxxx Xxxxxxx and certain of the holders of the Company's 8%
Convertible Senior Secured Notes due 2014 (together with Xxxxxx Xxxxxxx, the
"LENDERS"), in connection with the syndication of the obligations under the
Guarantee, intend to enter into a guarantee facility to be dated the date hereof
(the "GUARANTEE FACILITY") and executed simultaneously with this Waiver and
Consent;
Whereas, Lloyds is only willing to enter into the Lloyds Facility if
the Guarantee and this Waiver and Consent are executed and delivered;
Whereas, Xxxxxx Xxxxxxx and the Lenders are only willing to enter into
the Guarantee and the Guarantee Facility, respectively, if this Waiver and
Consent is executed and delivered;
Whereas, the Board of Directors of the Company has determined that
entering into or having VTL UK enter into, as applicable, the Lloyds Facility,
the Guarantee Facility and the related documentation are in the best interests
of the Company and have approved and authorized the execution of the documents
necessary to give effect to the Lloyd's Facility, the Guarantee Facility and
related documentation; and
Whereas, each of the holders of the New Notes (the "NEW HOLDERS") has
determined that the Guarantee Facility and this Waiver and Consent are in its
best interests and has approved this Waiver and Consent;
Now, therefore, the parties hereto, intending to be legally bound,
hereby agree as follows.
1. CONSENT OF EXISTING HOLDERS. Each New Holder and the Company hereby
agrees that the transactions contemplated by the Lloyds Facility, the Guarantee
Facility and the Cybernet Sale, including (without limitation) the application
of any proceeds received from the sale of Cybernet toward repayment of any
borrowing made under the Lloyds Facility or any amount due under the Guarantee
or Guarantee Facility, shall be excluded from the application of proceeds
contemplated by Sections 5.2(a) and 5.2(d) of the New Notes.
2. 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 enter into
the Guarantee Facility and to execute any other documents or transactions
related thereto.
3. AMENDMENT TO EXISTING AGREEMENT. Each of the Company and each New
Holder hereby agrees that the Existing Agreement is hereby amended by:
(i) Inserting the following new definition in alphabetical order in
Section 1.01 of the Existing Agreement:
""GUARANTEE" means that certain guarantee dated October 21, 2005,
issued by Xxxxxx Xxxxxxx & Co. Incorporated to Lloyds TSB Bank plc.
"GUARANTEE FACILITY" means that certain guarantee agreement dated
October 21, 2005, among Xxxxxx Xxxxxxx & Co. Incorporated, VTL (UK) Limited,
the Company, Viatel Broadband Limited, Viatel Internet Limited and the several
banks and other financial institutions from time to time party thereto."
(ii) Inserting the following new Section 2.03 immediately after
Section 2.02 of the Existing Agreement:
"Section 2.03. GUARANTEE NOTES. On the basis of the representations
and warranties and agreements contained herein and in the Guarantee Facility, if
any demand is made under the Guarantee, the Company agrees to issue to each of
the lenders under the Guarantee Facility, severally and not jointly, Notes in an
aggregate principal amount of $1,000,000 pursuant to Section 2.2(b) of the
Guarantee Facility."
4. GOVERNING LAW; JURISDICTION; WAIVER OF TRIAL BY JURY. This Waiver and
Consent 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 Waiver and Consent 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 Waiver and
Consent 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 WAIVER AND
CONSENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION ARISING UNDER THIS WAIVER AND CONSENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT THIS WAIVER AND CONSENT, 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 WAVIER 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.
5. SEPARABILITY. If any one or more of the provisions contained in this
Waiver and Consent 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 Waiver and Consent 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.
6. SUCCESSORS AND ASSIGNS. All agreements of the Company and the New
Holders hereunder shall bind their respective successors and assigns.
IN WITNESS HEREOF, THE PARTIES HERETO HAVE CAUSED THIS WAIVER AND CONSENT TO BE
DULY EXECUTED AS OF THE DATE FIRST WRITTEN ABOVE:
VIATEL HOLDING (BERMUDA) LIMITED
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Chief Executive Officer
AGREED AND ACCEPTED AS OF THE DATE FIRST WRITTEN ABOVE:
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XXXXXX XXXXXXX & CO. INCORPORATED VARDE PARTNERS, INC.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxxx Name: Xxxxxx Xxxxx
Title: Managing Director Title: Managing Partner
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