FIRST AMENDMENT TO
AMENDED AND RESTATED BRIDGE LOAN AGREEMENT
THIS FIRST AMENDMENT ("Amendment"), dated as of June 22, 2001, is entered
into by and among ▇▇▇▇▇▇▇▇▇.▇▇▇ Ltd., a Cayman Islands company (the "Borrower"),
NetCel360 Holdings Limited, a Cayman Islands company (the "Parent"), NetCel360
Sdn Bhd, a Malaysian Company (together with Parent, the "Guarantors"), and the
Lenders (as defined in the Bridge Agreement).
RECITALS.
--------
A. The Borrower, Guarantors and Lenders, are parties to a certain
Amended and Restated Bridge Loan Agreement, dated as of May 24, 2001 (the
"Bridge Agreement"), pursuant to which the Lenders have agreed to extend credit
to the Borrower.
B. The Parent and Vsource, Inc. (the "Acquiror") are parties to a
certain Acquisition Agreement, dated as of May 24, 2001, as amended by the
Amendment to Acquisition Agreement dated as of June 22, 2001 (as further
amended, supplemented or otherwise modified, the "Acquisition Agreement"),
pursuant to which the Acquiror will purchase certain of the Parent's assets,
including all of the outstanding capital stock of the Borrower (the
"Acquisition").
C. The parties desire to amend the Bridge Agreement on the terms set
forth herein.
D. The parties are willing to enter into this Amendment, subject to the
terms and conditions hereof.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms
--------------
used herein shall have the meanings, if any, assigned to them in the Bridge
Agreement.
2. Amendments to the Bridge Agreement.
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(a) Section 1.2(a). Section 1.2(a) is hereby amended by replacing
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the proviso at the end of the second sentence of Section 1.2(a) with the
following:
"provided that, unless (i) the Tranche A Majority Lenders have
elected to extend the Tranche A Maturity Date pursuant to Section
3.1 or (ii) any Tranche A Lender shall have elected to receive
fifty percent (50%) of such Tranche A Lender's then outstanding
Tranche A Principal Amount plus accrued and unpaid interest
thereon pursuant to Section 3.3(a) (and then solely with respect
to any such Tranche A Lender), no amount shall be paid in respect
of the Tranche B Loans unless and until the Borrower or the
Guarantors shall have paid in full all due and owing amounts in
respect of the Tranche A Loans."
(b) Section 1.3. A new Section 1.3 is hereby added by inserting
------------
the following between Sections 1.2 and 1.3:
"Section 1.3. [Intentionally Omitted]"
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(c) Section 1.4(a). Section 1.4(a) is hereby amended by inserting
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the following provision at the end of such Section:
"provided that, unless (i) the Tranche A Majority Lenders have elected
to extend the Tranche A Maturity Date pursuant to Section 3.1 or (ii)
any Tranche A Lender shall have elected to receive fifty percent (50%)
of such Tranche A Lender's then outstanding Tranche A Principal Amount
plus accrued and unpaid interest thereon pursuant to Section 3.3(a)
(and then solely with respect to any such Tranche A Lender), no amount
shall be paid in respect of the Tranche B Loans unless and until the
Borrower or the Guarantors shall have paid in full all due and owing
amounts in respect of the Tranche A Loans."
(d) Section 3.3(g). Section 3.3(g) is hereby amended and restated
--------------
in its entirety as follows:
"(g) If the Borrower has not discharged the Tranche B Loans under
this Section 3.3 prior to the Tranche B Maturity Date, the Borrower
shall, subject to the proviso in the second sentence of Section
1.2(a), pay the Tranche B Lenders, in discharge of its obligations in
respect of the Tranche B Loans, an aggregate amount (to be ratably
distributed to the Tranche B Lenders in accordance with the respect
Tranche B Principal Amounts of the Loans) equal to three (3)
multiplied by the Tranche B Principal Amount plus accrued and unpaid
interest thereon."
(e) Section 5.1(a). Section 5.1(a) is hereby amended by deleting
---------------
in its entirety the parenthetical set forth in clause (iv) of the third sentence
of such Section.
(f) Section 5.1(d). Section 5.1(d) is hereby amended and restated
--------------
in its entirety as follows:
"(d) Perfection of Security. All such action as is necessary
-----------------------
after the Initial Disbursement Date to maintain the perfected security
interest granted with respect to the Collateral, including filing of
the Debenture, Form 34, Form 40B and any other documents or
instruments that are required with the Registrar of Companies in
Malaysia, shall be taken promptly, but in no event later than thirty
(30) days after the Initial Disbursement Date, by the Guarantors and
the Borrower."
-2-
(g) Schedule IB. Schedule IB is hereby replaced in its entirety
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by Schedule IB1 attached hereto.
(h) Exhibit A. Exhibit A is hereby replaced in its entirety by
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Exhibit A1 attached hereto.
(i) Exhibit B. Exhibit B is hereby replaced in its entirety by
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Exhibit B1 attached hereto.
3. Consent. The Lenders hereby acknowledge and consent to the exchange
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by any Tranche B Lender of its Tranche B Note, for cancellation in full of the
obligations owed thereunder, for a Series A Note, issued by Vsource, Inc.
pursuant to the terms of a Series A Convertible Note Purchase Agreement to be
entered into by Vsource, Inc. and certain purchasers named therein, in principal
amount equal to the principal amount of such Tranche B Note plus all accrued
interest thereon through the date of the exchange.
4. Miscellaneous.
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(a) Except as herein expressly modified, all terms, covenants and
provisions of the Bridge Agreement are and shall remain in full force and effect
and all references therein to such Bridge Agreement shall henceforth refer to
the Bridge Agreement as amended by this Amendment. This Amendment shall be
deemed incorporated into, and a part of, the Bridge Agreement.
(b) This Amendment shall be binding upon and inure to the benefit
of the parties hereto and thereto and their respective successors and assigns.
No third party beneficiaries are intended in connection with this Amendment.
(c) This Amendment shall be governed by and construed under the
internal laws of the State of Delaware without giving effect to any choice of
law rule that would cause the application of the laws of any jurisdiction other
than the internal laws of the State of Delaware to the rights and duties of the
parties.
(d) This Amendment may be executed in counterparts, each of which
shall be enforceable against the party actually executing such counterpart, and
which together shall constitute one instrument.
(e) This Amendment, together with the Bridge Agreement and the
other documents delivered pursuant to the Bridge Agreement, constitute the full
and entire understanding and agreement between the parties with regard to the
subjects hereof and thereof and supercedes and replaces any prior understanding
or agreement. This Amendment supersedes all prior drafts and communications
with respect thereto. This Amendment may not be amended except in accordance
with the provisions of Section 8.4 of the Bridge Agreement.
(f) In the event that any provision of this Amendment becomes or
is declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Amendment shall continue in full force and effect without said
provision.
-3-
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Amendment as of the date first above written.
THE BORROWER:
▇▇▇▇▇▇▇▇▇.▇▇▇ LTD
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
THE GUARANTORS:
NETCEL360 HOLDINGS LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
NETCEL360 SDN BHD
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
-4-
THE LENDERS:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Address: ▇/▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇ Centre
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Address: ▇/▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇ Centre
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
BAPEF INVESTMENTS XII LTD.
By: _______________________________________
Name:
Title:
G5 PARTNERS, LP
By: MG5 LLC, as general partner
By: _______________________________________
Name:
Title:
-5-
BAINLAB, INC.
By: _______________________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
______________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: ▇/▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇ Centre
▇-▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
_______________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Address: c/o Credit Suisse First Boston
▇ ▇▇▇▇▇▇▇ ▇▇▇▇
#▇▇-▇▇, #▇▇-▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
CSFB ASIANET TECH CO-INVESTORS, LTD.
By: _______________________________________
Name:
Title:
-6-
CSFB ASIANET IEP, LTD.
By: _______________________________________
Name:
Title:
CSFB ASIANET CO-INVESTORS, LTD.
By: _______________________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇
_______________________________________
Name:
Address:
ASIA INTERNET INVESTMENT GROUP I, LLC
By: Asia Investing Group, L.P, as Managing Member
By: Asia Investors Group, LLC, as General Partner
By: Mercantile Asia Investors, LP, as Managing Member
By: Mercantile Asia, LLC, its General Manager
By: /s/ I. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name:
Title:
-7-
NEW MEDIA INVESTORS VI, L.L.C.
By: _______________________________________
Name:
Title:
-8-
SCHEDULE IB1
Tranche B Lenders List
Contact
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Name of Lender Loan Amount Information
-------------- ------------ -------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ $ ▇▇▇,▇▇▇ ▇/▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Limited
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Tel: ▇▇▇-▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ $ ▇▇▇,▇▇▇ ▇/▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Limited
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Tel: ▇▇▇-▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇▇-▇▇▇▇
Asia Internet Investment Group I, LLC $ 250,000 c/o Mercantile Equity Partners
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
EXHIBIT A1
FORM OF TRANCHE A NOTE
----------------------
The securities represented hereby have not been registered under the
U.S. Securities Act of 1933, as amended, or under the securities laws
of any state of the United States. These securities are subject to
restrictions on transferability and resale and may not be transferred
or resold except as permitted under the applicable securities laws.
Investors should be aware that they may be required to bear the
financial risks of this investment for an indefinite period of time.
CONVERTIBLE PROMISSORY NOTE
US$[*]
Principal Amount As of April 11, 2001
▇▇▇▇▇▇▇▇▇.▇▇▇ Ltd, a Cayman Islands company (the "Obligor"), for value
received, hereby promises to pay to the order of the Tranche A Lenders set forth
in Schedule 1A to the Amended and Restated Bridge Loan Agreement dated May 24,
2001, as amended by the first Amendment to Amended and Restated Bridge Loan
dated as of June __, 2001 (the "Agreement") on the Tranche A Maturity Date the
principal amount set next to each Tranche A Lender's name in such Schedule 1A,
which in aggregate is US$2,250,000 (the "Tranche A Principal Amount"), unless
this Tranche A Note is repaid or converted before that date pursuant to the
terms hereunder or under the Agreement. Interest shall accrue on the
outstanding Tranche A Principal Amount at the rate of 5% per annum from the date
hereof and is due and payable on the Tranche A Maturity Date unless this Tranche
A Note is repaid or converted before that date pursuant to the terms hereunder.
Any terms not defined in this Tranche A Note shall have the meaning set forth in
the Agreement unless otherwise indicated.
In consideration of the Tranche A Lenders agreeing to make the Tranche A
Principal Amount available to the Borrower upon the terms and conditions of this
Agreement, the Guarantors hereby jointly and severally and unconditionally and
irrevocably guarantee, as a continuing obligation, the due and punctual payment
and performance of the Secured Obligations in the currency and respective
currencies in which the same is payable under the terms of this Agreement and
the due and punctual performance and observance by the Borrower of all other
obligations of the Borrower contained in this Tranche A Note, the Agreement or
the Debenture (as defined below), notwithstanding any dispute between the
Tranche A Lenders and the Borrower, and if the Borrower fails to pay any amount
of the Secured Obligations when due the Guarantors shall pay such amount to the
Tranche Lenders in the required currency as aforesaid forthwith upon receiving
the Tranche A Majority Lenders' first written demand. The Guarantee shall be
secured by a fixed and floating charge over the Collateral in favor of the
Lenders granted under a Debenture, as amended by a Supplemental Agreement dated
May 24, 2001, entered into by NetCel360 Sdn Bhd (the "Debenture").
The Obligor and the Guarantors waive the rights of presentment, demand for
performance, protest, notice of protest, and notice of dishonor. No delay on
the part of the Tranche A Lenders in exercising any right hereunder shall
operate as waiver of such right under this Tranche A Note. This Tranche A Note
is being delivered and shall be construed in accordance with the internal laws
of the State of Delaware without giving effect to any choice of law rule that
would cause the application of the laws of any jurisdiction other than the
internal laws of the State of Delaware to the rights and duties of the parties.
AS OBLIGOR:
▇▇▇▇▇▇▇▇▇.▇▇▇ LTD
By:_____________________________________
Name:
Title:
AS GUARANTORS:
NETCEL360 HOLDINGS LIMITED
By:_____________________________________
Name:
Title:
NETCEL360 SDN BHD
By:_____________________________________
Name:
Title:
EXHIBIT B1
FORM OF TRANCHE B NOTE
----------------------
The securities represented hereby have not been registered under the
U.S. Securities Act of 1933, as amended, or under the securities laws
of any state of the United States. These securities are subject to
restrictions on transferability and resale and may not be transferred
or resold except as permitted under the applicable securities laws.
Investors should be aware that they may be required to bear the
financial risks of this investment for an indefinite period of time.
CONVERTIBLE PROMISSORY NOTE
US$[*]
Principal Amount As of June __, 2001
▇▇▇▇▇▇▇▇▇.▇▇▇ Ltd, a Cayman Islands company (the "Obligor"), for value
received, hereby promises to pay to the order of the Tranche B Lenders set forth
in Schedule 1B to the Amended and Restated Bridge Loan Agreement dated as of May
24, 2001, as amended by the First Amendment to Amended and Restated Bridge Loan
Agreement dated as of June __, 2001 (the "Agreement") on the Tranche B Maturity
Date the principal amount set next to each Tranche B Lender's name in such
Schedule IB1, which in aggregate is US$________ (the "Tranche B Principal
Amount"), unless this Tranche B Note is repaid or converted before that date
pursuant to the terms hereunder or under the Agreement. Interest shall accrue
on the outstanding Tranche B Principal Amount at the rate of 8% per annum from
the date hereof and is due and payable on the Tranche B Maturity Date unless
this Tranche B Note is repaid or converted before that date pursuant to the
terms hereunder. Any terms not defined in this Tranche B Note shall have the
meaning set forth in the Agreement unless otherwise indicated.
In consideration of the Tranche B Lenders agreeing to make the Tranche B
Principal Amount available to the Borrower upon the terms and conditions of this
Agreement, the Guarantors hereby jointly and severally and unconditionally and
irrevocably guarantee, as a continuing obligation, the due and punctual payment
and performance of the Secured Obligations in the currency and respective
currencies in which the same is payable under the terms of this Agreement and
the due and punctual performance and observance by the Borrower of all other
obligations of the Borrower contained in this Tranche B Note, the Agreement or
the Debenture (as defined below), notwithstanding any dispute between the
Tranche B Lenders and the Borrower, and if the Borrower fails to pay any amount
of the Secured Obligations when due the Guarantors shall pay such amount to the
Tranche B Lenders in the required currency as aforesaid forthwith upon receiving
the Tranche B Majority Lenders' first written demand; provided that, unless (i)
the Tranche A Majority Lenders have elected to extend the Tranche A Maturity
Date pursuant to Section 3.1 of the Agreement or (ii) any Tranche A Lender shall
have elected to receive fifty percent (50%) of such Tranche A Lender's then
outstanding Tranche A Principal Amount plus accrued and unpaid interest thereon
pursuant to Section 3.3(a) (and then solely with respect to any such Tranche A
Lender), no amount shall be paid in respect of the Tranche B Loans unless and
until the Obligor or the Guarantors shall have paid in full all due and owing
amounts in respect of the Tranche A Loans. The Guarantee shall be secured by a
fixed and floating charge over the Collateral in favor of the Lenders granted
under a Debenture, as amended by a Supplemental Agreement dated May 24, 2001,
entered into by NetCel360 Sdn Bhd (the "Debenture").
The Obligor and the Guarantors waive the rights of presentment, demand for
performance, protest, notice of protest, and notice of dishonor. No delay on
the part of the Tranche B Lenders in exercising any right hereunder shall
operate as waiver of such right under this Tranche B Note. This Tranche B Note
is being delivered and shall be construed in accordance with the internal laws
of the State of Delaware without giving effect to any choice of law rule that
would cause the application of the laws of any jurisdiction other than the
internal laws of the State of Delaware to the rights and duties of the parties.
AS OBLIGOR:
▇▇▇▇▇▇▇▇▇.▇▇▇ LTD
By:_____________________________________
Name:
Title:
AS GUARANTORS:
NETCEL360 HOLDINGS LIMITED
By:_____________________________________
Name:
Title:
NETCEL360 SDN BHD
By:_____________________________________
Name:
Title:
