STRICTLY CONFIDENTIAL
EXECUTION VERSION
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of January 30, 2006 (this "AMENDMENT"), to the
Guarantee dated as of October 21, 2005, issued by Xxxxxx Xxxxxxx & Co.
Incorporated ("XXXXXX XXXXXXX") in favor of Lloyds TSB Bank plc (the
"GUARANTEE").
WHEREAS, VTL (UK) Limited (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, the Borrower, Xxxxxx Xxxxxxx, Xxxxx Partners, Inc. (together with
Xxxxxx Xxxxxxx, the "LENDERS") and others are party to a Guarantee Agreement
dated as of October 21, 2005 (the "GUARANTEE AGREEMENT") pursuant to which
Xxxxxx Xxxxxxx syndicated its obligations under the Guarantee;
WHEREAS, pursuant to the Guarantee Agreement, and as a condition to the
Lloyds October Facility, Xxxxxx Xxxxxxx 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;
WHEREAS, the Borrower desires, and Xxxxxx Xxxxxxx 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, Morgan Stanley agrees to increase the
Guaranteed Amount to (pound)7,250,000 and extend the expiration date of the
Guarantee to May 31, 2006;
WHEREAS, Xxxxxx Xxxxxxx is willing to agree to increase the Guaranteed
Amount to (pound)7,250,000 and to extend the expiration date of the Guarantee to
May 31, 2006 subject to the Borrower agreeing to certain amendments to the
Guarantee Agreement; and
WHEREAS, the parties hereto desire to amend the Guarantee 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 Guarantee.
1. AMENDMENTS TO THE GUARANTEE.
(a) The last paragraph of Section 1 is hereby amended and restated to read
in its entirety as follows:
"the total amount recoverable from us under this guarantee shall be limited
to a sum of (pound)7,250,000 and in addition the interest (on that amount
or such less sum as may be due or owing) under Clause 3 hereof;".
(b) The first sentence of Section 4 is hereby amended and restated to read
in its entirety as follows:
"This guarantee shall be a continuing security provided always that our
liability hereunder shall expire upon the earlier of May 31 2006 and the
date on which all amounts outstanding under the Lloyds TSB Facility have
been repaid in full except in respect of any demand for payment received by
us by letter or authenticated cable/fax message on or before that date."
2. CONDITIONS TO EFFECTIVENESS. This Amendment shall become effective on
the date (the "EFFECTIVE DATE") upon which Xxxxxx Xxxxxxx notified Lloyds that
it is satisfied that each of the following conditions have been met:
(a) Xxxxxx Xxxxxxx shall have received a fully executed amendment to the
Guarantee Agreement, in form and substance satisfactory to Xxxxxx Xxxxxxx; and
(b) Xxxxxx Xxxxxxx shall have received a fully executed amendment to the
Lloyds October Facility, reflecting the amendments referenced in the preamble
above.
3. 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 governed and construed in accordance with
English law. The parties hereto irreovacbly agree that the courts of England
shall have jurisdiction to hear and determine any suit, action or proceedings,
and to settle any disputes, which may arise out of or in connection with this
guarantee and, for such purposes, you and we both irrevocably submit to the
jurisdiction of such courts.
(d) All agreements of Xxxxxx Xxxxxxx and Lloyds hereunder shall bind their
respective successors and assigns.
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.
XXXXXX XXXXXXX & CO. INCORPORATED
By: /S/ XXXXXXX XXXXXXX
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Name: Xxxxxxx Xxxxxxx
Title: Managing Director
LLOYDS TSB BANK PLC
By: /S/ XXXX XXXXX
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Name: Xxxx Xxxxx
Title: Senior Relationship Manager
