EXHIBIT 4.4 INVESTMENT AND NOTE PURCHASE AGREEMENT

Exhibt 4.4 [Execution Copy] INVESTMENT AND NOTE PURCHASE AGREEMENT BY AND AMONG VIATEL HOLDING (BERMUDA) LIMITED AND THE PURCHASERS LISTED ON SCHEDULE 1 HERETO DATED AS OF JUNE 23, 2005 TABLE OF CONTENTS

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Schedule 1 - Purchasers Schedule 2 - Guarantors Schedules 3.02 - 3.28 - Disclosure Schedules Exhibit A - Form of Certificates Exhibit B - Opinion of Counsel -iii- INVESTMENT AND NOTE PURCHASE AGREEMENT dated as of June 23, 2005 (the "Agreement"), by and among Viatel Holding (Bermuda) Limited, a company organized under the laws of Bermuda (the "Company"), and each of the Purchasers listed on Schedule 1 hereto (individually, a "Purchaser" and collectively, the "Purchasers"). 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 "Notes") to the several Purchasers; WHEREAS, the Notes will be subject to a Security Trust and Intercreditor Deed, dated June 23, 2005 (as amended from time to time, the "Security Trust Agreement"), by and among the Company, the Guarantors, and The Law Debenture Trust Corporation p.l.c., as security trustee (the "Security Trustee"); WHEREAS, the Notes will be guaranteed on a senior secured basis by each of the Guarantors listed on Schedule 2 hereto; WHEREAS, pursuant to the Deed of Priorities dated June 23, 2005, the Company's existing 8% Convertible Senior Secured Notes due 2014 (the "Existing Notes") will be subordinated and made junior in priority to the Notes; WHEREAS, the Notes will be offered and sold to the Purchasers without being registered under the Securities Act, in reliance upon an exemption therefrom; and WHEREAS, the Purchasers desire, subject to the terms and conditions set forth herein, to purchase the Notes from the Company; NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows. ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE Section 1.01. Definitions. "affiliate" has the meaning set forth in Rule 405 under the Securities Act. "Actions" has the meaning set forth in Section 3.09. "Additional Notes" means additional Notes which are issued in face amount equal to interest that would otherwise be payable in cash on a Note or on such Notes. "Applicable Law" means (a) any United States Federal, state, local or foreign or transnational law, statute, rule, regulation, order, writ, injunction, judgment, decree or permit of any Governmental Authority and (b) any rule or listing requirement 1 of any national stock exchange or Commission recognized trading market on which securities issued by the Company or any of the Subsidiaries are listed or quoted. "Business Day" means any day other than a Legal Holiday. "Capital Stock" of any Person means any and all shares, partnership, membership or other interests, participations or other equivalents of or interests in (however designated) equity of such Person, including any Preferred Stock (but excluding any debt securities convertible into such equity) and any rights to purchase, warrants, options or similar interests with respect to the foregoing. "Closing Date" has the meaning set forth in Section 2.02(a). "Code" means the Internal Revenue Code of 1986, as amended. "Commission" means the U.S. Securities and Exchange Commission. "Common Shares" means the Common Shares of the Company, par value $0.01 per share. "Communications Laws" has the meaning set forth in Section 3.27. "Communication Liabilities" has the meaning set forth in Section 3.27. "Company" has the meaning set forth in the preamble. "Consent and Instruction Letter" means the Consent and Instruction Letter dated June 23, 2005, by and between The Law Debenture Company, as security trustee for the holders of the Existing Notes. "Deed of Priorities" means the Deed of Priorities dated June 23, 2005, by and between the Security Trustee, as security trustee for the Purchasers, and The Law Debenture Company, as security trustee for the holders of the Existing Notes. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder. "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the applicable rules and regulations promulgated thereunder. "Existing Notes" has the meaning set forth in the recitals. "Federal Reserve Board" has the meaning set forth in Section 3.23. "FCC" means the U.S. Federal Communications Commission. "GAAP" means generally accepted accounting principles in the United States of America. 2 "Governmental Authority" means (i) any transnational, foreign, Federal, state or local court or governmental or regulatory agency or authority, (ii) any arbitration board, tribunal or mediator and (iii) any national stock exchange or Commission recognized trading market on which securities issued by the Company or any of the Subsidiaries are listed or quoted. "Guarantee" means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any indebtedness of any other Person and any obligation, direct or indirect, contingent or otherwise, of such Person (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise) or (b) entered into for purposes of assuring in any other manner the obligee of such indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided, however, that the term "Guarantee" shall not include endorsements for collection or deposit in the ordinary course of business. The term "Guarantee" used as a verb has a corresponding meaning. "Guarantor" means VTL (UK) Limited, Viatel Broadband Limited, Viatel Internet Limited, and any other Subsidiary that may issue a Guarantee of the Notes under the Security Trust Agreement or other guarantee agreement. "including" means, unless the context otherwise requires, "including without limitation." "Indemnified Person" has the meaning set forth in Section 7.02(c). "Indemnifying Person" has the meaning set forth in Section 7.02(c). "Insolvency Event" in respect of any Person means: (a) the initiation of a consent to Insolvency Proceedings by such company or any other person or the presentation of a petition for the making of an administration order and such proceedings not being disputed in good faith with a reasonable prospect of success; or (b) the making of an administration order in relation to such Person; or (c) an encumbrancer taking possession of the whole or any substantial part of the undertaking or assets of such Person; or (d) a distress, diligence, execution or other process being levied or enforced upon or sued out against the whole or any substantial part of the undertaking or assets of such Person and such order, appointment, possession or process (as the case may be) not being discharged or otherwise ceasing to apply within 30 days; or 3 (e) the making of an arrangement, composition, reorganization with or conveyance to or assignment for the creditors of such Person generally or the making of an application to a court of competent jurisdiction for protection from the creditors of such Person generally; or (f) the passing by such Person of an effective resolution or the making of an order by a court of competent jurisdiction for the winding up or dissolution of such Person; or (g) the appointment of an Insolvency Official in relation to such Person or in relation to the whole or any substantial part of the undertaking or assets of such Person. "Insolvency Official" means, in respect of any Person, a liquidator, provisional liquidator, administrator (whether appointed by the court or otherwise), administrative receiver, receiver or managers, nominee, supervisor, trustee in bankruptcy, conservator, guardian or similar official in respect of such Person or in respect of all (or substantially all) of the Person's assets or in respect of any arrangements or composition with creditors. "Insolvency Proceedings" means the winding-up, dissolution, voluntary arrangement or administration of a Person or corporation and shall be construed so as to include any equivalent or analogous proceedings under the law of the jurisdiction in which such Person or corporation carried on business including the seeking of liquidation, winding-up, reorganization, dissolution, administration, arrangement, adjustment, protection or relief from creditors or the appointment of an Insolvency Official. "Intellectual Property Rights" means patents, trade marks, service marks, logos, getup, trade names, internet domain names, rights in designs, copyright (including rights in computer software) and moral rights, data base rights, semi-conductor topography rights, utility models, rights in know-how and other intellectual property rights, in each case whether registered or unregistered and including applications for registration, and all rights or forms of protection having equivalent or similar effect anywhere in the world. "Investment Company Act" has the meaning set forth in Section 3.13. "knowledge of the Company" or "knowledge of the Company and its Subsidiaries" means actual knowledge of any of Lucy Woods, Stuart Blythe and Brian McArthur Muscroft after due inquiry. "Legal Holiday" is a Saturday, a Sunday or other day on which banking institutions are not open for general business in London or New York. "Liabilities" means, as to any Person, all debts, adverse claims, liabilities and obligations of such Person, whether accrued, vested or otherwise, fixed or unfixed, choate or inchoate, direct or indirect, liquidated or unliquidated, secured or unsecured, accrued, absolute, contingent or otherwise, whether in contract, tort, strict liability or 4 otherwise and whether or not actually reflected, or required by applicable accounting standards to be reflected, in such Person's balance sheets or other books and records. "Lien" means any mortgage, sub-mortgage, security assignment, standard security, charge, sub-charge, pledge, lien, right of set-off or other encumbrance or security interest of any kind, however created or arising. "Material Adverse Effect" means a material adverse effect on the assets, liabilities, business, condition (financial or otherwise), results of operations or prospects of the Company and its Subsidiaries taken as a whole, or any other circumstance that in any manner would be expected to materially adversely affect the interests of the Purchasers. "Network" means the telecommunications network in Belgium, France, Germany, the Netherlands, Switzerland, United Kingdom and the United States operated or to be operated by the Company and its Subsidiaries (including all apparatus, equipment and telecommunications systems of every description which is installed and operated in connection therewith). "Notes" has the meaning set forth in the recitals. "Permit" has the meaning set forth in Section 3.11. "Permitted Liens" means the following: (a) Liens for taxes or assessments or other governmental charges not yet due and payable or which are being contested in good faith, by appropriate proceedings, provided, that adequate reserves with respect to such contest are maintained on the books of the applicable Company or Subsidiary, in accordance with GAAP; (b) pledges or deposits of money securing statutory obligations under workmen's compensation, unemployment insurance, social security or public liability laws or similar legislation (excluding Liens under ERISA); (c) pledges or deposits of money securing bids, tenders, contracts (other than contracts for the payment of money) or leases to which the Company or any Subsidiary is a party as lessee made in the ordinary course of business; (d) inchoate and unperfected workers', mechanics' or similar Liens arising in the ordinary course of business; (e) zoning restrictions, easements, licenses, or other restrictions on the use of any real estate or other minor irregularities in title (including leasehold title) thereto; and (f) Liens securing obligations under the Existing Notes; so long as in each case set forth in (a) through (e) above the same do not materially impair the use or marketability of the asset or property subject to such Lien or materially impair the use, value or marketability of the Company's and its Subsidiaries' assets and properties in the aggregate. For purposes of clarity, the Permitted Liens described in clauses (a) through (e) above shall include equivalent Liens under similar laws of jurisdictions outside the United States. "Person" means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity. "Plans" has the meaning set forth in Section 3.19. 5 "Preferred Stock," as applied to the Capital Stock of any Person, means Capital Stock of any class or classes (however designated) that is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other class of such Person. "Purchaser" and "Purchasers" have the meaning set forth in the preamble. "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law, but if not having the force of law, compliance with which is customary) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organization. "Regulation D" has the meaning set forth in Section 3.25(c). "Regulation S" has the meaning set forth in Section 3.25(b). "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. "Security Agreements" means the Security Agreements dated June 23, 2005, by and between the Security Trustee and each of the Guarantors, respectively. "Security Documents" means the Security Trust Agreements, the Security Agreement, the Deed of Priorities, the Consent and Instruction Letter, and any mortgages, charges, assignments or other security interests from time to time granted by the Company or the Guarantors to the Security Trustee pursuant to the Security Trust Agreement or any other such security document. "Security Trust Agreement" has the meaning set forth in the recitals. "Security Trustee" has the meaning set forth in the recitals. "Similar Law" means provisions under any federal, state, local, non-US or other laws or regulations that are similar to Section 406 of ERISA or Section 4975 of the Code. "Special Share" means the Special Share of the Company, as defined in the Company's bye-laws, and having the rights and privileges described therein. "Subsidiary" of any Person means any corporation, association, partnership or other business entity of which more than 50% of the total Voting Stock is at the time owned or controlled, directly or indirectly, by (a) such Person, (b) such Person and one or more Subsidiaries of such Person or (c) one or more Subsidiaries of such Person. 6 "tax" means all taxes, imposts, duties, levies, charges, deductions and withholdings in the nature or on account of tax, together with all interest thereon and penalties with respect thereto. "Transaction Documents" means this Agreement, the Security Trust Agreement, the Notes, the Security Documents, and related agreements. "Trust Indenture Act" means the Trust Indenture Act of 1935, as amended. "Voting Stock" of a Person means all classes of Capital Stock or other interests (including partnership interests) of such Person then outstanding and normally entitled at the time to vote in the election of directors, managers or trustees thereof. ARTICLE II SALE AND PURCHASE OF THE SECURITIES Section 2.01. Offer to Sell and to Purchase; Purchase Price. On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein, the Company agrees to issue and sell to each of the Purchasers, severally and not jointly, and each of the Purchasers, severally and not jointly, agrees to purchase from the Company, the principal amount of Notes set forth opposite the name of such Purchaser on Schedule 1 hereto at a purchase price equal to the principal amount thereof. Section 2.02. Delivery of and Payment for the Notes. (a) Subject to the terms and conditions set forth herein, delivery of and payment for the Notes shall be made at the offices of Wachtell, Lipton, Rosen & Katz, or at such other place as shall be agreed upon by the 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 Article VI hereof (other than those conditions that by their nature are to be satisfied or waived on the 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 Purchasers and the Company (such date and time of payment and delivery being referred to herein as the "Closing Date"). (b) On the Closing Date, payment of the purchase price for the 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 Closing Date or by such other means as the parties hereto shall agree prior to the Closing Date against delivery to the Purchasers of the certificates evidencing the Notes. Time shall be of the essence, and delivery at the time and place specified pursuant to this Agreement is a further condition of the obligations of the Purchasers hereunder. Upon delivery, the Notes shall be in definitive certificated form, registered in such names and in such denominations as the Purchasers shall have requested in writing not less than two full Business Days prior to the Closing Date (or such shorter period as the Purchasers and the Company may agree). The Company agrees to make one or more certificates evidencing 7 the Notes available for inspection by the Purchasers in New York, New York at least 24 hours prior to the Closing Date. (c) When delivered by the Company on the Closing Date, the Notes shall be fully authorized, duly and validly issued, and free and clear of Liens (other than Liens specifically contemplated by the Transaction Documents). ARTICLE III REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY The Company represents and warrants to each of the Purchasers on and as of the date hereof that: Section 3.01. Organization and Standing. The Company and each of its Subsidiaries have been duly incorporated or formed and are validly existing as corporations or companies, as the case may be, in good standing under the laws of their respective jurisdictions of incorporation or formation, as the case may be, are duly qualified to do business and are in good standing as foreign corporations in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to be so qualified or have such power or authority could not, singularly or in the aggregate, be reasonably expected to have a Material Adverse Effect. The Company and each of its Subsidiaries has furnished to the Purchasers true and correct copies of the Company's and each Subsidiary's certificate of incorporation and bye-laws (and/or other organizational documents) in substantially the form as will be in effect as of the Closing Date. Phrases used in this Section 3.01 shall incorporate equivalent references used in each relevant jurisdiction. Section 3.02. Subsidiaries. The companies listed on SCHEDULE 3.02 hereto are all the Subsidiaries of the Company. Except as set forth in SCHEDULE 3.02, the Company does not own a majority of or control, directly or indirectly, any corporation, association or other entity. Section 3.03. Capital Stock. (a) The Company has authorized 250,000,000 Common Shares and the Special Share, of which (i) 10,630,000 Common Shares and the Special Share are issued and outstanding as of the date hereof, (ii) 69,666,666 Common Shares are reserved for issuance upon conversion of the Existing Notes, and (iii) no other Common Shares are issued, outstanding or reserved for issuance. As of the date hereof, all of the Common Shares are identical in all respects and, except with respect to the Special Share, there are no other types of Capital Stock or other securities of the Company authorized, issued or outstanding. As of the Closing Date, the Company will have authorized 250,000,000 Common Shares, of which 10,630,000 will be issued and outstanding, and the Special Share. 8 (b) All of the outstanding shares of Capital Stock of the Company and each of the Company's Subsidiaries have been (and immediately after the Closing Date will be) duly and validly authorized and issued, fully paid and non-assessable and (except as set forth in Section 4.1 of the Shareholders Agreement or with respect to Capital Stock of the Company's Subsidiaries under Applicable Law) free of preemptive rights. (c) Except as set forth in SCHEDULE 3.03(c), all of the shares of Capital Stock of each of the Company's Subsidiaries are owned directly or indirectly by the Company, free and clear of any Lien, restriction upon voting or transfer or any other claim of any third party. (d) Except for Common Shares issuable upon conversion of the Existing Notes, there are no outstanding subscriptions, rights, warrants, calls or options to acquire, or instruments convertible into or exchangeable for, or agreements or understandings with respect to the sale or issuance of, any shares of Capital Stock of or other equity or other ownership interest in the Company or any of its Subsidiaries, or any other contracts, commitments, agreements, understandings or arrangements of any kind to which the Company or any Subsidiary is a party obligating the Company or any Subsidiary under any circumstance to issue any Capital Stock, or any securities convertible into or exchangeable for or rights to purchase any Capital Stock. Except as set forth in SCHEDULE 3.03(d) and the Registration Rights Agreement dated as of April 21, 2004, neither the Company nor any Subsidiary is a party to or bound by any agreement with respect to any of its securities which grants registration rights to any Person. Except for the Shareholders Agreement dated as of April 21, 2004, and as otherwise set forth on SCHEDULE 3.03(d), neither the Company nor any Subsidiary is, and to the knowledge of the Company no stockholder is, a party to any voting trust or other agreement or understanding affecting the voting or transfer of the Capital Stock of the Company or any Subsidiary. Section 3.04. Corporate Power. The Company and each of its Subsidiaries has full right, power and authority to execute and deliver each Transaction Document to which it is a party, and to perform their respective obligations hereunder and thereunder; and all corporate or company action required to be taken for the due and proper authorization, execution and delivery of each of the Transaction Documents and the consummation of the transactions contemplated hereby and thereby have been duly and validly taken. Section 3.05. Authorization; Enforceability. (a) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company, except as may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors' rights generally and by general equitable principles (whether considered in a proceeding in equity or at law). (b) The Security Trust Agreement, including the amendments thereto, has been duly authorized by the Company and, when duly executed and delivered in accordance with its terms by each of the parties thereto, will constitute a valid and legally 9 binding agreement of the Company and each of the Guarantors, enforceable against the Company and each of the Guarantors in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors' rights generally and by general equitable principles (whether considered in a proceeding in equity or at law). (c) The Notes have been duly authorized by the Company and, when duly executed, issued and delivered by the Company and paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits of the Security Trust Agreement, except as may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors' rights generally and by general equitable principles (whether considered in a proceeding in equity or at law). (d) The Security Documents, including the amendments thereto, have been duly authorized by each of the Company and the Guarantors party thereto and, when the Notes have been duly executed, authenticated, issued and delivered as provided in the Security Trust Agreement and paid for as provided herein, will be valid and legally binding obligations of the Company and each of the Guarantors, except as may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors' rights generally and by general equitable principles (whether considered in a proceeding in equity or at law). Section 3.06. Securities Act; Trust Indenture Act. Assuming the accuracy of the representations and warranties of the Purchasers contained in Article IV, it is not necessary, in connection with the issuance and sale of the Notes to the Purchasers in the manner contemplated by this Agreement, to register the Notes under the Securities Act or to qualify the Notes under the Trust Indenture Act. Section 3.07. No Violation; Consents. Except as set forth in SCHEDULE 3.07, the execution, delivery and performance by the Company and each of its Subsidiaries of each of the Transaction Documents to which each is a party, the issuance, authentication, sale and delivery of the Notes and compliance by the Company and each of its Subsidiaries party thereto with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents will not (with or without due notice or lapse of time or both) (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or cause or give rise to the acceleration or increase of any benefits or any termination right, or result in the creation or imposition of any Lien (other than the Liens created in favor of the Security Trustee) upon any property or assets of the Company or any of its Subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument, including any lease or employment agreement, or any Permit, to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries is subject, (ii) result in any violation of the provisions of the charter or bye-laws or similar organizational documents of the Company or any of its Subsidiaries or (iii) result in the violation 10 of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental agency or body having jurisdiction over the Company or any of its Subsidiaries or any of their properties or assets; and no consent, approval, authorization or order of, or filing or registration with, or notification of, any such court or arbitrator or governmental agency or body under any such statute, judgment, order, decree, rule or regulation is required for the execution, delivery and performance by the Company and each of its Subsidiaries of each of the Transaction Documents to which each is a party, the issuance, authentication, sale and delivery of the Notes and compliance by the Company and each of its Subsidiaries with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents. Section 3.08. Financial Statements; SEC Reports. (a) The financial statements (including the related notes) that will be included in the Form 20-F for the fiscal year ended December 31, 2004 that will be filed on or before June 30, 2005 (the "Financial Statements"), shall be in accordance with the books and records of the Company and each of its Subsidiaries, will have been prepared in accordance with GAAP consistently applied throughout the periods covered thereby and will fairly present the consolidated financial position, results of operations and cash flows of the entities purported to be covered thereby as of the respective dates and for the respective periods indicated. (b) Except as set forth in SCHEDULE 3.08(b), since March 23, 2004, the Company has filed all forms, reports and documents required to be filed by it with the Commission pursuant to the Exchange Act (collectively, and including any documents filed by the Company at any time with the Commission that were not at the time of filing required to be so filed, the "SEC Reports"). As of the respective dates they were filed (or, if amended or superseded by a filing prior to the date hereof, on the date of such filing), (i) the SEC Reports were prepared, and all forms, reports and documents filed with the Commission after the date of this Agreement will be prepared, in all material respects in accordance with the requirements of Applicable Law and (ii) none of the SEC Reports contained, nor will any forms, reports and documents filed after the date of this Agreement contain, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. None of the Company's Subsidiaries is required to make any filing with the Commission pursuant to the Exchange Act. (c) As of December 31, 2004 and as of the date hereof, neither the Company nor any of its Subsidiaries had, and as of the Closing Date neither the Company nor any of its Subsidiaries will have, any Liabilities, except (i) Liabilities fully and adequately reflected or noted on the balance sheet as of December 31, 2004 that will be included in the Financial Statements (to the extent quantified in such balance sheet or the notes thereto); (ii) Liabilities incurred since December 31, 2004 in the ordinary course of business and consistent with past practice which are not material individually or in the aggregate; and (iii) as set forth in SCHEDULE 3.08(c). 11 Section 3.09. No Litigation. (a) Except as set forth in SCHEDULE 3.09(a) (to the extent quantified therein), there is no action, order, writ, injunction, investigation, judgment or decree outstanding or claim, suit, litigation, proceeding, labor dispute, arbitral action or investigation (collectively, "Actions") pending and as to which the Company or any Subsidiary has received notice or, to the knowledge of the Company and its Subsidiaries, otherwise pending or threatened against (i) the Company or any of its Subsidiaries, (ii) any benefit plan for personnel of the Company or any of its Subsidiaries or any fiduciary or administrator thereof, or (iii) any officers or directors of the Company or any Subsidiary which relates to the business of the Company and its Subsidiaries. Except as set forth in SCHEDULE 3.09, there is, to the knowledge of the Company and its Subsidiaries, no basis for any Action of the nature described in the previous sentence arising from events, occurrences, actions or omissions prior to the Closing Date. None of the Company or any of its Subsidiaries is in default with respect to any judgment, order, writ, injunction or decree of any court of governmental agency and there are not unsatisfied judgments against the Company or any of its Subsidiaries. (b) No action has been taken and no statute, rule, regulation or order has been enacted, adopted or issued by any governmental agency or body which prevents the issuance of the Notes or suspends the sale of the Notes in any jurisdiction; no injunction, restraining order or order of any nature by any federal or state court of competent jurisdiction has been issued with respect to the Company or any of its Subsidiaries which would prevent or suspend the issuance or sale of the Notes in any jurisdiction; no action, suit or proceeding is pending against or, to the best knowledge of the Company and each of its Subsidiaries, threatened against or affecting the Company or any of its Subsidiaries before any court or arbitrator or any governmental agency, body or official, domestic or foreign, which could reasonably be expected to interfere with or adversely affect the issuance of the Notes or in any manner draw into question the validity or enforceability of any of the Transaction Documents or any action taken or to be taken pursuant thereto. Section 3.10. Compliance with Constituent Documents; No Defaults. Neither the Company nor any of its Subsidiaries is (i) in violation of its charter or bye-laws (or similar organizational documents), (ii) in default in any material respect, and, to the knowledge of the Company, no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or to which the property or assets of the Company or any of its Subsidiaries is subject or (iii) except as set forth on SCHEDULE 3.10, to the knowledge of the Company, in violation in any material respect of any law, ordinance, governmental rule or regulation to which it or its property or assets are subject. Section 3.11. Licenses; Permits. Except as set forth on SCHEDULE 3.11, the Company and each of its Subsidiaries possess all material licenses, certificates, authorizations and permits (collectively, "Permits") issued by, and have made all declarations and filings with, the appropriate federal, state or foreign regulatory agencies or bodies that are necessary or, in the reasonable judgment of the Company, desirable for 12 the ownership or lease of their respective properties or the conduct of their respective businesses, and neither the Company nor any of its Subsidiaries has received notification of any revocation or modification of any such Permit or has any reason to believe that any such Permit will not be renewed in the ordinary course. Section 3.12. Taxes. Except as set forth on SCHEDULE 3.12, the Company and each of its Subsidiaries have properly filed all federal, state, local and foreign income, sales, turnover and franchise tax returns required to be filed through the date hereof and have paid all taxes due thereon (other than those taxes being contested in good faith or those taxes currently payable without penalty or interest, in ea