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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1999
Commission file number 0-23139
RSL COMMUNICATIONS, LTD.
(Exact name of the registrant as specified in its charter)
Bermuda N/A
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) identification No.)
Clarendon House
Church Street
Hamilton HM CX Bermuda
(Address of principal executive offices)
(441) 295-2832
(Registrant's telephone number)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
As of July 31, 1999, the registrant had 29,556,036 of its Class A common stock,
par value $0.00457 per share, and 25,082,283 of its Class B common stock, par
value $0.00457 per share, outstanding.
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RSL COMMUNICATIONS, LTD.
Table of Contents
Page
----
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed Consolidated Balance Sheets as of
June 30, 1999 (Unaudited) and December 31, 1998........................ 1
Condensed Consolidated Statements of Operations for the
Three Month and Six Month Periods Ended June 30, 1999
(Unaudited) and 1998 (Unaudited)....................................... 2
Condensed Consolidated Statements of Cash Flows for the Six Month
Periods Ended June 30, 1999 (Unaudited) and 1998 (Unaudited)........... 3
Notes to Condensed Consolidated Financial Statements..................... 4
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations ...................................... 7
Item 3. Quantitative and Qualitative Disclosures About Market Risk...... 21
PART II - OTHER INFORMATION
Item 1. Legal Proceedings............................................... 22
Item 2. Change in Securities and Use of Proceeds........................ 22
Item 4. Submission of Matters to a Vote of Security Holders............. 22
Item 5. Other Information............................................... 23
Item 6. Exhibits and Reports on Form 8-K................................ 23
Signatures................................................................... 24
Exhibit Index................................................................ 25
<PAGE>
PART I
FINANCIAL INFORMATION
Item 1. Financial Statements.
RSL COMMUNICATIONS, LTD.
CONDENSED CONSOLIDATED BALANCE SHEETS
(in thousands)
<TABLE>
<CAPTION>
As of As of
June 30, December 31,
1999 1998
---- ----
(unaudited)
<S> <C> <C>
Assets
Cash and Cash Equivalents $ 320,704 $ 367,823
Accounts Receivable, Net 217,159 181,845
Marketable Securities - Available for Sale 135,774 98,637
Prepaid Expenses and Other Current Assets 94,763 77,772
----------- -----------
Total Current Assets 768,400 726,077
----------- -----------
Restricted Marketable Securities - Held to Maturity 10,101 20,159
Marketable Securities - Available for Sale 13,260 12,911
Property and Equipment 455,919 369,508
Less: Accumulated Depreciation (81,430) (45,785)
----------- -----------
Property and Equipment, Net 374,489 323,723
Investment in Unconsolidated Subsidiaries 16,645 8,446
Goodwill and Other Intangibles, Net 629,324 589,517
Deposits and Other Assets 33,086 33,760
----------- -----------
Total Assets $ 1,845,305 $ 1,714,593
=========== ===========
Liabilities and Shareholders' Equity
Accounts Payable and Other Liabilities $ 466,423 $ 434,797
Short-term Debt 24,757 36,130
----------- -----------
Total Current Liabilities 491,180 470,927
----------- -----------
Total Long-term Debt 1,249,126 1,089,375
Other Liabilities - Noncurrent 67,509 20,807
----------- -----------
Total Liabilities 1,807,815 1,581,109
----------- -----------
Shareholders' Capital 534,472 500,647
Accumulated Deficit (496,982) (367,163)
----------- -----------
Total Shareholders' Equity 37,490 133,484
----------- -----------
Total Liabilities and Shareholders' Equity $ 1,845,305 $ 1,714,593
=========== ===========
</TABLE>
See notes to condensed consolidated financial statements.
1
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RSL COMMUNICATIONS, LTD.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(unaudited)
(in thousands, except loss per share)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Revenues .................................................... $ 367,700 $ 166,567 $ 707,981 $ 298,202
Operating Costs and Expenses:
Cost of Services (exclusive of depreciation and
amortization shown separately below) ................... 258,487 138,828 508,878 251,865
Selling, General and Administrative Expenses ............ 115,981 44,182 213,823 79,817
Depreciation and Amortization ........................... 43,004 11,576 80,083 21,124
--------- --------- --------- ---------
Total Operating Costs and Expenses .......................... 417,472 194,586 802,784 352,806
--------- --------- --------- ---------
Loss From Operations ........................................ (49,772) (28,019) (94,803) (54,604)
Interest Income ............................................. 5,039 6,028 11,094 10,834
Interest Expense ............................................ (31,276) (18,866) (60,274) (33,330)
Other Income - Net .......................................... 65 153 180 204
Foreign Exchange Transaction Gain (Loss) - Net .............. 4,340 (1,705) 14,028 (1,708)
Minority Interest ........................................... (609) 1,645 822 2,728
Loss in Equity Interest of
Unconsolidated Subsidiaries - Net ......................... (152) -- (376) --
Income Tax Expense .......................................... (490) (412) (490) (634)
--------- --------- --------- ---------
Loss before extraordinary item .............................. (72,855) (41,176) (129,819) (76,510)
Extraordinary item .......................................... -- (20,800) -- (20,800)
--------- --------- --------- ---------
Net Loss .................................................... $ (72,855) $ (61,976) $(129,819) $ (97,310)
========= ========= ========= =========
Loss Per Share of Common Stock
Before Extraordinary Item $ (1.36) $ (0.97) $ (2.44) $ (1.82)
Extraordinary Item Per Share of Common Stock $ -- $ (0.50) $ -- $ (0.50)
Basic and Diluted Loss Per Share of Common Stock $ (1.36) $ (1.47) $ (2.44) $ (2.32)
Weighted Average Number of Shares of Common Stock
Outstanding 53,394 42,295 53,163 42,021
</TABLE>
See notes to condensed consolidated financial statements.
2
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RSL COMMUNICATIONS, LTD.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(unaudited)
(in thousands)
<TABLE>
<CAPTION>
Six Months Ended
June 30,
1999 1998
---- ----
<S> <C> <C>
Net loss ................................................................ $(129,819) $ (97,310)
Depreciation and amortization ........................................... 80,083 21,124
Working capital change and other ........................................ (29,892) (32,019)
--------- ---------
Net cash used in operations ........................................ (79,628) (108,205)
--------- ---------
Acquisitions of subsidiaries ............................................ (32,837) (81,375)
Purchase of property and equipment ...................................... (89,375) (37,098)
(Purchase of) proceeds from maturity of marketable securities ........... (23,399) 13,858
Proceeds from maturity of restricted securities ......................... 10,575 18,750
Other ................................................................... 780 729
--------- ---------
Net cash used in investing activities .............................. (134,256) (85,136)
--------- ---------
Proceeds from the issuance of Notes ..................................... 169,748 499,045
Payment of offering costs ............................................... (256) (5,647)
Retirement of 1996 Notes ................................................ -- (127,493)
Proceeds from short term debt ........................................... 33,335 4,094
Payment of short term debt .............................................. (27,699) --
Proceeds from issuance of Class A shares ................................ 1,475 281
Other ................................................................... -- (1,709)
--------- ---------
Net cash provided by financing activities .......................... 168,696 368,571
--------- ---------
(Decrease) increase in cash and cash equivalents ........................ (45,188) 175,230
Effects of foreign currency on cash and cash equivalents ................ (1,931) (511)
Cash and cash equivalents at beginning of period ........................ 367,823 144,894
--------- ---------
Cash and cash equivalents at end of period .............................. $ 320,704 $ 319,613
========= =========
SUPPLEMENTAL DISCLOSURE OF CASH FLOWS INFORMATION:
Cash paid for interest .................................................. $ 37,523 $ 17,356
========= =========
SUPPLEMENTAL SCHEDULE OF NON-CASH INVESTING AND FINANCING ACTIVITIES:
Exchange of Class A Common Stock for stock of subsidiaries .............. $ 34,611 $ 8,712
========= =========
Assets acquired under capital lease obligations ......................... $ 3,934 $ 4,703
========= =========
Exchange of Class A Common Stock for Distribution Rights ................ $ -- $ 44,000
========= =========
</TABLE>
See notes to condensed consolidated financial statements.
3
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RSL COMMUNICATIONS, LTD.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
FOR THE SIX MONTHS ENDED JUNE 30, 1999
1. BASIS OF PRESENTATION
The condensed consolidated financial statements of which these notes are part
have been prepared by RSL Communications, Ltd. ("RSL COM") and RSL
Communications PLC, a wholly owned subsidiary of RSL COM ("RSL PLC" and,
together with RSL COM and their direct and indirect subsidiaries, the
"Company"), pursuant to the rules and regulations of the Securities and Exchange
Commission (the "Commission"). Certain information and footnote disclosures
normally included in financial statements prepared in accordance with generally
accepted accounting principles have been condensed or omitted pursuant to such
rules and regulations; however, in the opinion of management of the Company, the
Condensed Consolidated Financial Statements include all adjustments, consisting
only of normal recurring accruals, necessary to present fairly the financial
information for such periods. These Condensed Consolidated Financial Statements
should be read in conjunction with the Consolidated Financial Statements of RSL
COM and the notes thereto included in the Company's Annual Report on Form 10-K
for the year ended December 31, 1998.
2. PRIVATE PLACEMENT OF NOTES
In May 1999, RSL PLC issued $175 million aggregate principal amount at maturity
of 9.875% Senior Notes due 2009 (the "1999 Notes"). The 1999 Notes, which are
guaranteed as to the payment of principal and interest by RSL COM, generated net
proceeds of approximately $170 million.
3. REGISTRATION OF SHARES
In May 1999, the Company filed a post-effective amendment to a registration
statement with the Securities and Exchange Commission to register 909,798 Class
A common shares that can be issued upon the exercise of warrants. The Company
was required to register the shares underlying the warrants pursuant to a
registration rights agreement, entered into in connection with the 1996 private
offering of 300,000 units, each consisting of (i) $1,000 principal amount of 12
1/4% Senior Notes due 2006 (the "1996 Notes") and (ii) one warrant to purchase
3.975 shares of Class A Common Stock of RSL COM.
4. COMPREHENSIVE LOSS
Comprehensive loss consists of net loss and other gains and losses affecting
shareholder's equity that, under generally accepted accounting principles, are
excluded from net income. For RSL COM, such items consist primarily of foreign
currency translation gains and losses and unrealized gains and losses on
marketable equity investments.
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The components of total comprehensive loss for interim periods are presented in
the following table:
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net Loss ................................... $(72,855) $(61,976) $(129,819) $ (97,310)
Other Comprehensive Income (Loss)
Foreign currency translation adjustments 5,633 (4,173) (1,619) (6,983)
Unrealized gain on securities .......... 349 -- 341 --
-------- -------- --------- ---------
5,982 (4,173) (1,278) (6,983)
-------- -------- --------- ---------
Total Comprehensive Loss ................... $(66,873) $(66,149) $(131,097) $(104,293)
======== ======== ========= =========
</TABLE>
5. NET LOSS PER SHARE
Net loss per share is computed on the basis of the weighted average number of
common shares outstanding during the period. Diluted loss per share amounts are
not presented because the inclusion of these amounts would be anti-dilutive.
6. ACQUISITIONS
In June 1999, RSL COM Spain, S.A., a subsidiary of the Company, acquired a 33.4%
economic interest in Consorcio Europeo para las Telecomunicaciones, S.A.,
("Cetel"), a supplier of nationwide telecommunications services in Spain, for
approximately $9.6 million. The investment in Cetel is being accounted for under
the equity method of accounting and is included in the Investment in
Unconsolidated Subsidiaries in the accompanying Condensed Consolidated Balance
Sheet.
In June 1999, the Company issued to an affiliate of the Cisneros Group of
Companies 1,032,485 shares of Class A Common Stock, and cash of $3.2 million in
exchange for the remaining 49% interest in RSL COM Latin America, Ltd. not
already owned by the Company. The valuation of the assets acquired is
preliminary and as a result, the allocation of the purchase price may change.
7. SUMMARIZED FINANCIAL INFORMATION FOR RSL PLC
The following presents summarized financial information of RSL PLC as of June
30, 1999 and as of December 31, 1998. RSL PLC had no independent operations
other than serving solely as a foreign holding company for the Company's North
American and European operations. Notes issued by RSL PLC are fully and
unconditionally guaranteed by RSL COM. RSL COM has not presented separate
financial statements and other related disclosures concerning RSL PLC because
management has determined that such information is not material to shareholders
or holders of the notes issued by RSL PLC. RSL COM's financial statements are,
except for RSL COM's capitalization, deltathree.com operations, Asia/Pacific
operations, Latin American operations, corporate overhead expenses and drawn
credit facilities, identical to the financial statements of RSL PLC.
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As of As of
June 30, December 31,
1999 1998
---- ----
(unaudited)
(in thousands)
Current Assets .......... $ 716,445 $ 686,727
Non-current Assets ...... $ 948,696 $ 877,696
Current Liabilities ..... $ 434,809 $ 411,667
Non-current Liabilities.. $1,660,719 $1,479,159
Six Months Ended
June 30,
1999 1998
---- ----
(unaudited)
(in thousands)
Revenues................. $ 624,042 $ 242,909
Net Loss................. $ (97,142) $ (86,802)
8. Subsequent Event
In February 1999, the Company announced that RSL COM Deutschland GmbH ("RSL
Germany"), its German subsidiary, and Debitel Kommunikationstechnik GmbH & Co.
KG ("Debitel"), Europe's largest mobile reseller company had agreed that Debitel
will utilize the Company's fixed wired network for new telecommunications
services that it will be promoting to German consumers. On August 13, 1999, the
Company announced that, effective October 31, 1999, it has agreed to terminate
this agreement with Debitel. As part of the agreement Debitel will pay the
Company $11.6 million for network services in addition to the $5.3 million
already paid for services since the beginning of the year. As part of the
termination agreement, Metro Holding AG ("Metro"), one of the founders of
Debitel and a shareholder in the Company, has agreed to provide funding to
promote certain RSL Germany products through Metro's sales and distribution
channels.
6
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Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Overview
The Company is a multinational telecommunications company which provides a broad
array of telecommunications services, with an emphasis on international long
distance voice services. The Company's target customers are primarily small and
medium-sized businesses in key markets. The Company's services include
international and national fixed and wireless, calling card, fax, data,
Internet, private line and other value-added telecommunications services. The
Company currently has revenue generating operations in Australia, Austria,
Belgium, Canada, Denmark, Finland, France, Germany, Italy, Japan, Luxembourg,
Mexico, The Netherlands, Portugal, Spain, Sweden, Switzerland, the United
Kingdom, the United States and Venezuela. In 1997, approximately 70% of all
international long distance telecommunications minutes originated in these
markets. The Company also provides Internet telephony services through its
wholly-owned subsidiary, deltathree.com and its network of Internet gateway
servers located within key metropolitan areas in target countries.
Consolidated Results Of Operations For The Three Month And Six Month Periods
Ended June 30, 1999 Compared To The Three Month And Six Month Periods Ended
June 30, 1998
Revenues
The Company provides both domestic and international long distance voice
communications and is a seller and reseller of wireless services in certain
countries in which the Company has operations. Revenues are derived from the
number of minutes of use (or fractions thereof) billed by the Company ("revenue
minutes") and are recorded upon completion of calls. The Company also derives
revenues from prepaid calling cards. These revenues are recognized at the time
of usage or upon expiration of the card. The Company maintains local market
pricing structures for its services and generally prices its services at a
discount to the prices charged by the local government-owned post, telegraph and
telephone monopolies ("PTTs") and established carriers. The Company has
experienced, and expects to continue to experience, declining revenue per minute
in all of its markets as a result of increasing competition in
telecommunications, which the Company expects will be offset by increased minute
volumes and decreased operating costs per minute.
Revenues increased to $367.7 million for the three months ended June 30, 1999
compared to $166.6 million for the three months ended June 30, 1998, an increase
of 121%. For the six months ended June 30, 1999, revenues increased to $708.0
million or an increase of 137%, as compared to $298.2 million for the same
period in 1998. This increase is due primarily to the growth, primarily from
acquisitions, in the Company's North American and European operations.
Cost of Services (exclusive of depreciation and amortization shown separately
below)
The Company's cost of services is comprised of costs associated with gaining
local access and the transport and termination of calls over the Company's
network ("RSL-NET"). The majority of the Company's cost of services are
variable, including local access charges and transmission capacity leased on a
per-minute of use basis. For certain key markets, the Company plans to make
significant investments in indefeasible rights of use ("IRUs"), minimum
investment units ("MIUs") and domestic circuits and, as a result, expects an
increasing amount of its total operating costs will become fixed, as the volume
of the Company's calls carried over its own facilities increases. As the Company
migrates increasing amounts of traffic from leased facilities to owned
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facilities, the Company experiences improving operating results in those
operations where such traffic migration occurs. The depreciation expense with
respect to the Company's MIUs and IRUs is not accounted for in cost of services.
In addition, the Company intends to lower its variable cost of termination as a
percentage of revenues by carrying traffic pursuant to more of its existing
operating agreements and by negotiating additional operating agreements on
strategic routes. The Company has directly linked certain of its local operators
in Europe and the United States utilizing lines leased on a fixed cost point to
point basis and over MIUs and IRUs. To the extent traffic can be transported
between two local operators over MIUs or IRUs, there is only marginal cost to
the Company with respect to the international portion of a call other than the
fixed lease payment or the capital expenditure incurred in connection with the
purchase of the MIUs or IRUs. The Company's cost of transport and termination
will decrease to the extent that it is able to bypass the settlement rates
associated with the transport of international traffic.
While the Company intends to purchase or construct international transmission
facilities where such facilities are available for purchase or may be
constructed and such investments are cost effective and warranted by traffic
patterns, a significant percentage of its intranational transmission facilities
will continue to be leased on a variable cost basis. Accordingly, variable costs
will continue to be a majority of the Company's cost of services for the
foreseeable future.
The Company's cost of services is primarily affected by the volume of traffic
relative to its owned facilities and facilities leased on a point-to-point fixed
cost basis and capacity leased on a per minute basis with volume discounts. To
the extent that volume exceeds capacity on leased facilities that have been
arranged for in advance, the Company is forced to acquire capacity from
alternative carriers on a spot rate per-minute ("overflow") basis at a higher
cost. Acquiring capacity on an overflow basis has a negative impact on margins,
but enables the Company to maintain uninterrupted service to its customers.
Cost of services increased to $258.5 million for the three months ended June 30,
1999 from $138.8 million for the three months ended June 30, 1998, an increase
of 86.2%. For the first half of 1999, cost of services increased to $508.9
million as compared to $251.9 million for the six months ended June 30, 1998, an
increase of 102%. This increase is primarily due to a significant increase in
traffic and, to a certain extent, increased rates paid to the Company's carrier
vendors. As a percentage of revenues, cost of services decreased to 70.3% and
71.9%, respectively, for the second quarter and first half of 1999 as compared
to 83.3% and 84.5%, respectively, for the three and six month periods ended June
30, 1998. The decrease in cost of services as a percentage of revenues is
primarily attributable to the increased utilization of the Company's facilities,
increases in higher-volume commercial accounts and an increase in higher margin
wireless subscribers. The decrease in costs of services as a percentage of
revenues is also partially attributable to a reclassification, in the second
quarter of 1999 by the Company's Australia subsidiary, of $4 million of customer
acquisition costs from costs of services to selling, general and administrative
expenses. Excluding the reclassification, our normalized cost of services as a
percentage of revenues was 71.4% in the second quarter of 1999.
Effect of Deregulation on Costs of Services (exclusive of depreciation and
amortization)
The Company's cost structure varies from country to country and is significantly
impacted by the extent of regulation in place in each country. In general, the
Company's cost structure is lower in countries that have been substantially
deregulated than in those which are partially deregulated. In countries that are
not substantially deregulated, the Company's access to the local exchange
network is through more expensive means (i.e., leased lines or dial-in access).
This results in higher costs to the Company for carrying international traffic
originating within one country and terminating in another country. In addition,
local regulations in many countries restrict the Company from purchasing
capacity on international cable and fiber
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systems. The Company must instead either enter into long-term lease agreements
for international capacity at a high fixed cost or purchase per-minute of use
termination rates from the dominant carrier. Further deregulation in countries
in which the Company operates is expected to better enable the Company to (i)
interconnect its switches with the local exchange network and (ii) purchase its
own international facilities. The Company believes that as a result of further
deregulation, particularly in certain countries in which the Company operates,
its cost structure will improve. Deregulation in a particular country is also
expected to permit the Company to terminate international inbound traffic in
such country which we expect will result in an improved cost structure for the
Company as a whole.
Selling, General and Administrative Expenses
The Company's selling, general and administrative expenses consist primarily of
costs incurred to support the continued expansion of RSL-NET, the introduction
of new products and services and the provision of ongoing customer service.
These costs are principally comprised of costs associated with employee
compensation, occupancy, insurance, professional fees, sales and marketing
(including sales commissions) and bad debt expenses. In addition, as the Company
commences operations in different countries, it incurs significant start-up
costs, particularly for hiring, training and retention of personnel, leasing of
office space and advertising.
The Company has grown by establishing operations in countries that are in the
process of being deregulated and that originate and terminate large volumes of
international traffic or offer other strategic benefits. Each of the Company's
operations is in a different stage of development. The early stages of
development of a new operation have involved substantial start-up costs in
advance of revenues. Upon the commencement of such operations, the Company
generally has incurred additional fixed costs to facilitate growth. The Company
expects that during periods of significant expansion, selling, general and
administrative expenses will increase materially. Accordingly, the Company's
consolidated results of operations will vary depending on the timing and speed
of the Company's expansion strategy and, during a period of rapid expansion,
will not necessarily reflect the performance of the Company's more established
local operators.
Selling, general and administrative expense for the three months ended June 30,
1999 increased by $71.8 million, or 163%, to $116.0 million from $44.2 million
for the three months ended June 30, 1998. For the six month period ending June
30, 1999, selling, general and administrative expense increased by $134.0
million, or 168%, to $213.8 million from $79.8 million as compared to the same
period in 1998. This increase is primarily attributable to start-ups costs in,
and expansion of, the Company's European operations, the hiring of additional
personnel in Europe and acquisitions in North America and Australia. In
addition, in the second quarter of 1999, the Company recognized (i) $4.0 million
of marketing, promotion and other expenses incurred by deltathree.com, the
Company's wholly-owned internet telephony subsidiary, as it refocuses its
operation on end users, (ii) $4.0 million of customer acquisition costs by RSL
COM Australia that were reclassified from cost of sales and (iii) $2.9 million
in non-cash compensation expense related to stock incentive awards that were
previously granted to employees in various RSL COM subsidiaries under local
stock incentive plans. These incentive plans are variable, and as a result,
there may be additional non-cash compensation expenses related to theses awards
in the future, depending on fluctuations in the price of RSL COM's common shares
and the value of the individual RSL COM subsidiaries.
Selling, general and administrative expense as a percentage of revenues
increased to 31.5% and 30.2%, respectively, in the second quarter of 1999 and
the first six months of 1999 as compared to 26.5% and 26.8%, respectively, in
the three and six month periods ended June 30, 1998. The percentage increase is
primarily the result of the inclusion of the results of Telegate AG
("Telegate"), a directory information provider in Germany,
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which the Company began consolidating at the end of 1998. As a directory
information provider, Telegate's cost structure is quite different than the
Company's other operations since its costs are predominantly labor-related with
proportionately lower network costs. Excluding the impact of the
reclassification of customer acquisition costs and the non-cash compensation
expense, selling, general and administrative expense as a percentage of revenues
for the second quarter and first six months of 1999 would have been 29.7% and
29.2%, respectively.
Depreciation and Amortization Expense
Depreciation and amortization expense increased 271% to $43.0 million for the
three months ended June 30, 1999 from $11.6 million for the three months ended
June 30, 1998. For the first half of 1999, depreciation and amortization expense
increased 279% to $80.1 million from $21.1 million in the same period in 1998.
This increase is primarily attributable to the increased amortization of
goodwill and other intangibles recorded as a result of the Company's
acquisitions and higher depreciation due to increased capital expenditures.
Depreciation expense is expected to increase in the future as the Company
continues to expand and enhance its network.
Interest Income
Interest income decreased to $5.0 million for the three months ended June 30,
1999 from $6.0 million for the three months ended June 30, 1998. On a
year-to-date basis, interest income increased slightly to $11.1 million from
$10.8 million as compared to the same period in 1998.
Interest Expense
Interest expense increased to $31.3 million for the three months ended June 30,
1999 from $18.9 million for the three months ended June 30, 1998. On a
year-to-date basis, interest expense increased to $60.3 million from $33.3
million as compared to the same period in 1998. The increase is primarily as a
result of increased debt relating to the notes issued during 1998 and 1999.
Foreign Exchange
The Company is exposed to fluctuations in foreign currencies relative to the
U.S. dollar, as its revenues, costs, assets and liabilities are, for the most
part, denominated in local currencies. The results of operations of the
Company's subsidiaries, as reported in U.S. dollars, may be significantly
affected by fluctuations in the value of the local currencies in which the
Company transacts business.
The Company recorded a foreign currency translation adjustment of $6.0 million
as a component of equity as of June 30, 1999. Such amount is recorded upon the
translation of the foreign subsidiaries' financial statements into U.S. dollars,
and is dependent upon the various foreign exchange rates and the magnitude of
the foreign subsidiaries' financial statements.
The Company incurs settlement costs when it exchanges traffic via operating
agreements with foreign correspondents. These costs currently represent a small
portion of total costs; however, as the Company's international operations
increase, it expects that these costs will become a more significant portion of
its cost of services. Such costs are settled by utilizing a net settlement
process with the Company's foreign correspondents comprised of special drawing
rights ("SDRs"). SDRs are the established method of settlement among
international telecommunications carriers. The SDRs are valued based upon a
basket of
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foreign currencies and the Company believes that this mitigates, to some extent,
its foreign currency exposure. The Company has monitored and will continue to
monitor its currency exposure.
Foreign exchange transaction gain (loss) - net, were $4.3 million and $14.0
million, respectively, for the three months and six months ended June 30, 1999,
as compared to $(1.7) million for each of the three month and six month periods
ended June 30, 1998. The gains in 1999 compared to the losses in 1998 are
primarily a result of the decline in the value of the Deutsche mark against the
U.S. dollar associated with the Company's 1998 Deutsche mark denominated Senior
Discount Notes in 1999 as opposed to the increase in the Deutsche mark against
the U.S. dollar in 1998.
Loss in Equity Interest of Unconsolidated Subsidiaries - Net
The Company recorded a loss in equity interest of unconsolidated subsidiaries -
net of $0.2 million and $0.4 million for the three months and six months ended
June 30, 1999, respectively, to reflect the Company's pro-rata allocable loss in
the investments of Maxitel Servicos e Gestao de Telecommunicacoes, S.A., a
Portugese international telecommunications carrier and MK Telecom Network Inc.,
a Canadian microwave telecommunications facilities company.
Net Loss
The net loss increased to $72.9 million for the three months ended June 30,
1999, as compared to the net loss of $62.0 million for the three months ended
June 30, 1998. On a year-to-date basis, the net loss increased to $129.8 million
as compared to a net loss of $97.3 million for the six months ended June 30,
1998. The increase is due to the factors described above and in the following
discussion of segment results. Also impacting the comparisons of the net loss
between periods is an extraordinary item of $20.8 million recorded in the three
months ended June 30, 1998, representing the premium paid to retire
approximately $127 million of the original $300 million of the Company's 1996
Notes.
Segment Information
North American Operations
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
1999 1998 1999 1998
---- ---- ---- ----
(unaudited)
(in thousands, except percentage of consolidated revenues)
<S> <C> <C> <C> <C>
Revenues .................................................... $ 145,209 $ 84,777 $ 293,629 $ 158,958
Percentage of consolidated revenues ......................... 40% 51% 41% 53%
Operating costs and expenses:
Cost of services (exclusive of depreciation and
amortization shown separately below) ................. 118,019 72,130 238,190 135,468
Selling, general and administrative expenses ............. 29,834 13,978 58,743 24,167
Depreciation and amortization ............................ 10,325 1,879 22,592 3,854
--------- --------- --------- ---------
158,178 87,987 319,525 163,489
--------- --------- --------- ---------
Loss from operations ........................................ $ (12,969) $ (3,210) $ (25,896) $ (4,531)
========= ========= ========= =========
</TABLE>
11
<PAGE>
The Company's North American revenues result primarily from the sale of long
distance voice services on a retail basis to commercial customers, on a bulk
discount basis to distributors of prepaid calling cards, and on a wholesale
basis to other carriers. The Company experiences significant month to month
changes in revenues generated by its carrier customers (i.e. customers who
acquire the Company's services for the purpose of reselling such services on a
wholesale basis to other carriers or on a retail basis to end users). The
Company believes such carrier customers will react to temporary price
fluctuations and spot market availability that will impact the Company's carrier
revenues. Over the past two years, the Company has shifted its marketing focus
in the United States to, and continues to focus on, small and medium-sized
businesses and has restructured its pricing of wholesale services to other
carriers.
Revenue from the Company's North American operations increased to $145.2 million
for the three months ended June 30, 1999 compared to $84.8 for the same period
in 1998, a 71% increase. On a year-to-date basis, revenue from the Company's
North American operations increased to $293.6 million as compared to $159.0 for
the same period in 1998, an 85% increase. In July 1998, the Company acquired
Westinghouse Communications which provides voice telephony and data services in
the United States, and Westel Communications Ltd. which provides long distance
and enhanced telecommunications services in Canada. These acquisitions
contributed $38.9 million and $77.5 million in revenues in the second quarter
and first six months of 1999, respectively. The increase in the Company's North
American revenues was also due to a significant increase in the Company's
corporate customers and prepaid calling card usage.
North American revenues as a percentage of consolidated revenues decreased from
51% and 53% in the second quarter of 1998 and the first six months of 1998 to
40% and 41% in the second quarter and first six months of 1999, respectively.
This decline is a result of the Company's effort to reduce its dependence on the
very competitive North American operations and in particular its low margin
wholesale markets and focus additional efforts on expanding its more profitable
European operations.
Cost of services increased 64% to $118.0 million in the second quarter of 1999
from $72.1 million in the second quarter of 1998. On a year-to-date basis, cost
of services increased 76% to $238.2 million from $135.5 million over the same
period in 1998. The increase is primarily a result of acquisitions and higher
revenues. Costs of services as a percentage of revenues in the second quarter
and first six months of 1999 was 81%, an improvement from the 85% as compared to
the same periods of time in 1998 as a result of the focus to more profitable
customer segments.
Selling, general and administrative expense in the second quarter of 1999
increased to $29.8 million from $14.0 million in the second quarter of 1998. For
the first half of 1999, selling, general and administrative expense increased to
$58.7 million from $24.2 million as compared to the same period in 1998.
Selling, general and administrative expenses as a percentage of revenues,
increased to 21% in the second quarter of 1999 as compared to 16% recorded in
the second quarter of 1998. On a year-to-date basis, selling, general and
administrative expenses as a percentage of revenues, increased to 20% as
compared to 15% recorded in the first six months of 1998. The increase is
primarily a result of costs incurred to acquire new customers and enhance
customer services.
Depreciation and amortization in the second quarter of 1999 increased to $10.3
million from $1.9 million recorded in the second quarter of 1998. For the first
six months of 1999, depreciation and amortization increased to $22.6 million
from $3.9 million as compared to the first six months of 1998. These increases
were primarily attributable to the amortization of intangible assets,
principally goodwill, recorded in connection with several acquisitions made
since the second quarter of 1998. Depreciation expense also increased as a
result of the substantial capital investment made over the past year.
12
<PAGE>
Loss from operations in North America increased from $3.2 million in the second
quarter of 1998 to $13.0 million in the second quarter of 1999. Loss from
operations in North America increased from $4.5 million for the first six months
in 1998 to $25.9 million in the first six months of 1999. The increase is
primarily due to higher selling, general and administrative expenses as well as
higher amortization of intangible assets recorded in connection with the
acquisitions made in July 1998.
European Operations
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
1999 1998 1999 1998
---- ---- ---- ----
(unaudited)
(in thousands, except percentage of consolidated revenues)
<S> <C> <C> <C> <C>
Revenues .................................................... $ 178,303 $ 48,686 $ 330,414 $ 83,951
Percentage of consolidated revenues ......................... 48% 29% 47% 28%
Operating costs and expenses:
Cost of services (exclusive of depreciation and
amortization shown separately below) ................. 113,611 40,406 212,937 70,494
Selling, general and administrative expenses ........... 58,396 19,832 109,415 38,000
Depreciation and amortization .......................... 14,148 4,958 27,471 8,231
--------- --------- --------- ---------
186,155 65,196 349,823 116,725
--------- --------- --------- ---------
Loss from operations ........................................ $ (7,852) $ (16,510) $ (19,409) $ (32,774)
========= ========= ========= =========
</TABLE>
The Company derives its European revenues from the provision of international
and domestic long distance voice services, including directory information
services in Germany and the sale and resale of wireless services in certain
countries in which the Company operates. The Company plans to introduce several
new product groups, such as data, Internet, value-added services and web based
applications and broaden existing services such as fixed voice and wireless
services. Substantially all revenues from the Company's European operations are
derived from commercial sales to end-users. Sales are targeted towards small to
medium-sized corporate customers, and niche consumer markets (including selected
ethnic communities). To reduce its credit risk to such niche consumer markets,
the Company primarily offers prepaid products to these targeted consumers.
The Company operates in various countries in Europe, each of which is in a
different state of deregulation. In certain of these countries, current
regulatory restrictions limit the Company's ability to offer a broader array of
products and services and limit the availability of those services to customers.
The Company anticipates that deregulation will have a favorable impact on
revenues because (i) customers will be able to access the Company's services
more easily and (ii) the Company will have the ability to provide a broader
array of products and services. The Company believes that, with established or
start-up operations in 14 European countries, it will be well positioned to
benefit from the anticipated continued deregulation of European markets. It is
anticipated that most European countries will further deregulate various aspects
of the telecommunications industry during 1999 through 2000.
Revenue from the Company's European operations increased by 266% to $178.3
million for the three months ended June 30, 1999 compared to $48.7 million for
the same period in 1998. For the first half of 1999, revenue from the Company's
European operations increased by 294% to $330.4 million as compared to $84.0
million for the same period in 1998. During 1998, the Company made several
acquisitions in Europe, including Motorola Tel.Co, a reseller of wireless
services in the U.K. and Germany, and a majority interest in
13
<PAGE>
Telegate Holding, the parent holding company of Telegate. The Company's European
acquisitions during 1998 contributed $98.6 million and $187.0 million of revenue
in the second quarter and first half of 1999, respectively. The increase in the
Company's European revenues was also attributable to a substantial increase in
the number of carrier and corporate customers.
In February 1999, the Company announced that RSL Germany, its German subsidiary,
and Debitel had agreed that Debitel will utilize the Company's fixed wired
network for new telecommunications services that it will be promoting to German
consumers. Through July 1999, the utilization of the Company's network by
Debitel has been below expectation. Under the terms of the agreement, the
Company has been recognizing Debitel's minimum commitments for usage of its
network and, accordingly, for the second quarter and first six months of 1999,
the Company has recognized $6.0 million and $10.4 million, respectively. On
August 13, 1999, the Company announced that it has agreed to terminate this
agreement with Debitel effective October 31, 1999. As part of the agreement
Debitel will pay the Company $11.6 million for network services in addition to
the $5.3 million already paid for services since the beginning of the year.
European revenues as a percentage of consolidated revenues increased from 29%
and 28%, in the second quarter and first six months of 1998, to 48% and 47% in
the second quarter and first six months of 1999, respectively. Europe currently
represents the Company's largest market segment surpassing the North American
operations.
Cost of services increased 181% to $113.6 million in the second quarter of 1999
from $40.4 million in the second quarter of 1998. On a year-to-date basis, cost
of services increased 202% to $212.9 million from $70.5 million over the same
period in 1998. Costs of services as a percentage of revenues in the second
quarter of 1999 was 64% reflecting a 19% decrease compared to the 83% recorded
in the second quarter of 1998. For the first half of 1999, costs of services as
a percentage of revenues was 64% reflecting a 20% decrease from the 84% recorded
in the same period of 1998. The decrease in the cost of services as a percentage
of revenue is primarily attributable to the Company's ability to carry more
traffic on its own network which is less expensive than leasing capacity from
other carriers. The improved profitability is also due to the continued
deregulation of several European markets, allowing the Company to compete in
such markets on more favorable terms.
Selling, general and administrative expense in the second quarter of 1999
increased to $58.4 million from $19.8 million in the second quarter of 1998. For
the first half of 1999, selling, general and administrative expense increased to
$109.4 million from $38.0 million as compared to the same period in 1998.
Selling, general and administrative expenses as a percentage of revenue in the
second quarter of 1999 was 33%, a significant reduction from 41% recorded in the
second quarter of 1998. For the first half of 1999, selling, general and
administrative expenses as a percentage of revenue was 33%, a significant
reduction from 45% for the same period in 1998. These reductions were primarily
attributable to lower start-up costs in countries in which operations had
already been established in the past year.
Depreciation and amortization in the second quarter of 1999 increased to $14.1
million from $5.0 million recorded in the second quarter of 1998. For the first
half of 1999, depreciation and amortization increased to $27.5 million from $8.2
million as compared to the same period in 1998. These increases were primarily
attributable to the amortization of intangible assets, principally goodwill,
recorded in connection with several acquisitions made since the second quarter
of 1998. Depreciation expense also increased as a result of the substantial
capital investment made over the past year.
Net loss from European operations in the second quarter of 1999 declined to $7.9
million from $ 16.5 million
14
<PAGE>
recorded in the second quarter of 1998. On a year-to-date basis, net loss from
European operations declined to $19.4 million from $ 32.8 million as compared to
the same period in 1998. The improvement reflects the substantially higher
revenue partially offset by higher costs and increased amortization of
intangible assets acquired.
Asia/Pacific and Other Operations
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
1999 1998 1999 1998
---- ---- ---- ----
(unaudited)
(in thousands, except percentage of consolidated revenues)
<S> <C> <C> <C> <C>
Revenues .................................................... $ 44,188 $ 33,104 $ 83,938 $ 55,293
Percentage of consolidated revenues ......................... 12% 20% 12% 19%
Operating costs and expenses:
Cost of services (exclusive of depreciation and
amortization shown separately below) ................. 26,857 26,293 57,751 45,904
Selling, general and administrative expenses ............. 22,577 8,287 35,771 13,734
Depreciation and amortization ............................ 10,431 1,226 13,182 2,323
--------- --------- --------- ---------
59,865 35,806 106,704 61,961
--------- --------- --------- ---------
Loss from operations ........................................ $ (15,677) $ (2,702) $ (22,766) $ (6,668)
========= ========= ========= =========
</TABLE>
Asia/Pacific and Other operations are comprised primarily of domestic and
international long distance and wireless services operations in Australia. This
segment also includes relatively small start-up operations in Venezuela, Mexico,
Japan and deltathree.com. In May 1999, the Company announced a plan to offer up
to approximately 20% of the common shares of deltathree.com in an initial public
offering. deltathree.com is currently preparing to file a registration statement
with the Securities and Exchange Commission. The Company is also considering
strategic financing alternatives for its operations in Australia.
Revenues from the Company's Asia/Pacific and Other operations increased 33% to
$44.2 million for the three months ended June 30, 1999 compared to $33.1 million
for the same period in 1998. For the first half of 1999, revenues from the
Company's Asia/Pacific and Other operations increased 52% to $83.9 from $55.3
million as compared to the same period in 1998. In March 1998, the Company
acquired the customer base of two mobile resellers; First Direct Communications,
Pty. Limited and Link Telecommunication, Pty. Ltd. In July 1998, the Company
initiated operations in Japan. These new operations contributed $13.0 million of
additional revenues in the first half of 1999.
Revenues from the Company's Asia/Pacific and Other operations as a percentage of
consolidated revenues declined to 12% in the second quarter and first half of
1999 from 20% and 19% in the second quarter and first half of 1998,
respectively. The decline is primarily as a result of the Company's acquisition
of significant businesses in Europe and North America over the past year.
Cost of services in the second quarter of 1999 increased to $26.9 million from
$26.3 million recorded in the second quarter of 1998 as a result of the higher
revenues. For the first half of 1999, cost of services increased to $57.8
million from $45.9 million as compared to the same period in 1998. Cost of
services as a percentage of revenues in the second quarter and first half of
1999 declined to 61% and 69% from 79% and 83% as compared to the same period in
1998, respectively. The decrease in costs of services is also partially
15
<PAGE>
attributable to a reclassification in the second quarter of 1999 by the
Company's Australia subsidiary of $4 million of customer acquisition costs from
costs of services to selling, general and administrative expenses. Excluding the
reclassification, cost of services as a percentage of revenues was 70% in the
second quarter of 1999.
Selling, general and administrative expense in the second quarter of 1999
increased to $22.6 million from $8.3 million in the second quarter of 1998. For
the first half of 1999, selling, general and administrative expense increased to
$35.8 million from $13.7 million as compared to the same period in 1998. These
increases were primarily due to the costs to acquire and retain wireless
customers. Selling, general and administrative expenses as a percent of revenues
in the second quarter and first half of 1999 increased to 51% and 43% from 25%
and 25% as compared to the same periods in 1998, respectively. The increases are
a result of the initial start-up costs incurred in Latin America and up-front
costs incurred to acquire wireless customers. In addition, in the second quarter
of 1999, $4 million of marketing, promotion and other expenses were incurred by
deltathree.com, as it refocuses its operation on end users.
Depreciation and amortization in the second quarter of 1999 increased to $10.4
million from $1.2 million. For the first half of 1999, depreciation and
amortization increased to $13.2 million from $2.3 million as compared to the
same period in 1998, primarily as a result of the amortization of intangibles
recorded in connection with the 1998 acquisitions.
The loss from the Asia/Pacific and Other operations for the second quarter of
1999 increased to $15.7 million from $2.7 million recorded in the second quarter
of 1998. On a year-to-date basis, the loss from the Asia/Pacific and Other
operations increased to $22.8 million from $6.7 million as compared to the same
period in 1998. The increased operating losses are primarily due to the start-up
costs incurred in the Company's Latin America operation and higher amortization
of intangibles.
Liquidity and Capital Resources
The Company has incurred significant operating losses, net losses and negative
cash flow from operations, due in large part to the start-up and development of
the Company's operations and the development of "RSL-NET," the Company's
integrated digital telecommunications network. The Company expects that its net
losses and negative cash flow will continue as the Company continues to
implement its growth strategy. Historically, the Company has funded its losses
and capital expenditures through borrowings, capital contributions, and a
portion of the net proceeds of prior securities offerings.
Cash used in operating activities for the six months ended June 30, 1999 totaled
$79.6 million compared with $108.2 million for the same period in 1998
reflecting the use of cash to fund operating losses and working capital
requirements. Capital expenditures for the six months ended June 30, 1999 were
$93.3 million compared with $41.8 million for the comparable period in 1998.
These capital expenditures are principally for switches, fiber, and related
telecommunications equipment. The Company intends to continue to expand and
develop the Company's infrastructure, in part by replacing leased transmission
facilities with owned transmission lines, purchasing IRU and interests in
inter-city fiber routes in certain key markets and installing additional
national and international telephone gateway switches. The Company expects to
invest in the aggregate approximately $250 million in 1999 to expand and enhance
its telecommunications network. Cash expended for acquisitions were $32.8
million during the six months ended June 30, 1999 primarily reflecting payments
for properties acquired at the end of 1998 as well as the acquisition of an
equity interest in Cetel in Spain for $9.6 million in the second quarter,
compared with $81.4 million for the six months ended June 30,
16
<PAGE>
1998. At June 30, 1999, the Company had $277.2 million of working capital as
compared to $255.2 million of working capital at December 31, 1998.
The Company's indebtedness was approximately $1.2 billion at June 30, 1999
substantially all of which represented long-term debt. Nearly all of the
Company's indebtedness is attributable to the debt securities issued by RSL PLC
and guaranteed by RSL COM.
The Company through RSL PLC has various Senior Notes and Senior Discount Notes
which are due from 2006 through 2009 (the "Notes"), totaling $1.17 billion, net,
as of June 30, 1999. The Notes were issued under indentures containing certain
restrictive covenants which impose limitations on the Company's ability to,
among other things: (i) incur additional indebtedness, (ii) pay dividends or
make certain other distributions, (iii) issue capital stock of certain
subsidiaries, (iv) guarantee debt, (v) enter into transactions with shareholders
and affiliates, (vi) create liens, (vii) enter into sale-leaseback transactions,
and (viii) sell assets.
Under the terms of the Notes, the Company was required to offer to exchange each
of the Notes for substantially identical notes registered under the Securities
Act of 1933. The Company has successfully completed all such exchange offers to
date, except for the exchange offer relating to the 1999 Notes.
In connection with the issuance of the 1996 Notes, RSL PLC was required to
purchase and maintain restricted marketable securities, which are held by the
indenture trustee for the 1996 Notes, in order to secure the payment of the
first six scheduled interest payments on the 1996 Notes. The market value of
such securities at June 30, 1999, as adjusted to reflect the redemption of
$127.5 million of the 1996 Notes, was $10.4 million.
The Company, through LDM Systems, Inc., a subsidiary of the Company, has a $10.0
million revolving credit facility. There was $2.7 million utilized under this
facility at June 30, 1999. This facility is payable in full on September 30,
2000 and accrues interest at prime rate plus 2.5% per annum (10.25% at June 30,
1999).
The Company, through Telegate Holding, has a $7.1 million revolving credit
facility, all of which was available at June 30, 1999. This facility is payable
in annual payments through December 31, 2002 and accrues interest at a variable
interest rate not to exceed 5.5% per annum (3.3% at June 30, 1999). Telegate had
$11.1 million of overdraft credit facilities with various banks that accrue
interest at a rate of 6.0% to 6.5%. There was $0.3 million utilized under these
facilities at June 30, 1999. Telegate also had two loans that accrue interest at
a rate of 6% from a related party and from a shareholder of $3.3 million and
$4.5 million, respectively, as of June 30, 1999. These loans are payable in four
semiannual installments beginning June 30, 2001.
The Company, through RSL COM Canada, has a $6.8 million revolving credit
facility that accrues interest at 7.4% per annum, all of which was available at
June 30, 1999.
One of the Company's primary equipment vendors has provided to certain of the
Company's subsidiaries $75.0 million in vendor financing commitments to fund the
purchase of additional switching and related telecommunications capital
equipment. At June 30, 1999, all of which was utilized under this facility.
Borrowings from this equipment vendor accrue interest at a rate of LIBOR plus
either 5.25% or 4.5% depending on the equipment purchased.
17
<PAGE>
In May 1999, the Company issued the 1999 Notes which generated net proceeds to
the Company of approximately $169.5 million. The 1999 Notes are guaranteed as to
payment of principal and interest by the Company. The Company plans to raise
additional capital in 1999. The limitation under the Company's most restrictive
covenants will likely prohibit the Company from incurring any significant amount
of additional indebtedness to fund net losses unless the Company completes a
significant equity offering or generates significant positive cash flow from
operations. The Company believes that the net proceeds from these notes and the
remaining net proceeds from the issuance of the outstanding notes and the 1998
equity offering, together with availability under its revolving credit
facilities, vendor financing facility and short-term lines of credit and
overdraft facilities from local banks, will be sufficient to fund its capital
expenditure and operations at least through the first half of 2000. However, the
Company may be required to raise additional capital regardless of market
conditions, if the Company's plans or assumptions change or prove to be
inaccurate, if the Company identifies additional required or desirable
infrastructure investments or acquisitions, if the Company experiences
unanticipated costs or competitive pressures or if the net proceeds from the
issuance of its debt and equity securities, together with other sources of
liquidity otherwise prove to be insufficient. Regardless, the Company plans to
raise additional capital in 1999 to ensure that adequate funding is available
for capital expenditures and operations for the year 2000 and beyond.
Effects of Recently Issued Accounting Standards
In June 1998, the FASB issued SFAS No.133, "Accounting for Derivative
Instruments and Hedging Activities", which establishes accounting and reporting
standards for derivative instruments and hedging activities. Generally, it
requires that an entity recognize all derivatives as either an asset or
liability and measure those instruments at fair value, as well as identify the
conditions for which a derivative may be specially designed as a hedge. SFAS
No.133 is effective for fiscal years beginning after June 15, 2000. Management
is currently addressing the financial reporting measures that will be needed in
order to comply with this disclosure. The Company has not participated in any
hedging activities in connection with foreign currency exposure.
Seasonality
The Company's European operations experience seasonality during January, August,
October and December, and, to a lesser extent, March, as these months are
traditional holiday months in most European countries and many European
businesses, which are the Company's principal European customers, are closed
during portions of these months.
Year 2000 Technology Risks
The "Year 2000" problem is the result of computer programs being written using
two digits, rather than the four digits, to define the applicable year. Any of
the programs used in the Company's operations that have time-sensitive software
may recognize a date using "00" as the year 1900 rather than the year 2000. This
could result in a major system failure or miscalculations, or other computer
errors, causing disruptions of operations. The potential for failures
encompasses all aspects of the Company's business, including computer systems
and voice networks, and could cause, among other things, a temporary inability
to process transactions, billing and customer service or to engage in similar
normal business activities.
18
<PAGE>
The Company is implementing a comprehensive program of analysis of and/or
changes to its computer systems to ensure that all such systems are, or prior to
the end of 1999 will be, Year 2000 compliant. The Company's Year 2000 project
includes the following phases: (i) conducting a comprehensive inventory of the
Company's internal systems, including information technology systems and
non-information technology systems (which include switching, billing and other
platforms and electrical systems) and the systems acquired or to be acquired by
the Company, (ii) assessing and prioritizing any required remediation, (iii)
remediating any problems by repairing, or, if appropriate, replacing the
non-compliant systems and (iv) testing all remediated systems for Year 2000
compliance. All critical components, which include network switching, billing
and financial systems, have been substantially completed, with the exception of
two required upgrades of L.M. Ericsson A.B. ("Ericsson") switches in France,
which is expected to be completed by September 30, 1999. Non-critical
components, which include administrative support systems, are also scheduled to
be completed by September 30, 1999. The Company will engage in continued
operational verification and testing.
The Company has also retained a Year 2000 solution provider, through the first
quarter of 2000, as a consultant to assist the Company in its assessment and
remediation projects and to manage and coordinate Year 2000 compliance for each
of the Company's local operators on a global basis.
In addition to assesing its own systems, the Company is conducting an external
review of its vendors and suppliers, including equipment and system providers
and other telecommunications service providers, to determine their vulnerability
to Year 2000 problems and any potential impact on the Company. Based on
discussions with Ericsson, the Company's primary equipment vendor, and the
Company's testing of the Ericsson equipment, which is substantially complete,
the Company believes that the equipment provided to the Company by Ericsson will
be Year 2000 compliant. The Company may experience problems to the extent that
other telecommunications carriers whose services are resold by the Company or to
which the Company sends traffic for termination are not Year 2000 compliant.
There can be no assurance that such problems will not have a material adverse
effect on the Company.
The Company has completed numerous acquisitions during recent periods, and is in
the process of integrating the systems of the acquired businesses into the
Company's operations. Those systems are included in the Company's Year 2000
review and remediation project. During the process of evaluating businesses for
potential acquisition, and after any such acquisition, the Company will evaluate
the extent of the Year 2000 problems associated with such acquisitions and the
cost and timing of the remediation. No assurance can be given, however, that the
systems of any acquired business will be Year 2000 compliant when acquired or
will be capable of timely remediation. In August 1998, the Company acquired
Motorola Tel.co, in the United Kingdom and Germany from Motorola Inc. The
acquired assets are expected to be Year 2000 compliant by August 31, 1999.
The Company expects to continue testing its systems for Year 2000 compliance
during the rest of 1999 as a result of upgrades and other changes to our system
and further expects that all of its computer systems will be fully Year 2000
compliant before the end of 1999. There can be no assurance, however, that the
Company will achieve full Year 2000 compliance before the end of 1999 or that
effective contingency plans will be developed or implemented. A failure of the
Company's computer systems or the failure of the Company's vendors or customers
to effectively upgrade their software and systems for transition to the year
2000 could have a material adverse effect on the Company's business, financial
position and results of operations.
Through July 31, 1999 the Company has spent approximately $6 million on the Year
2000 program. The
19
<PAGE>
company expects that it will cost approximately an additional $4 million, to be
paid through the first quarter of 2000, to complete its Year 2000 project. These
amounts will be financed through working capital. The Company expenses costs
associated with software modification when they are incurred.
With the substantial completion of the Company's Year 2000 assessment and
remediations, contingency planning, which primarily consist of ongoing
monitoring of successful remediations and remediations of dependent partners, is
in progress. Even if the Company's assessment is completed without identifying
any additional material non-compliant systems operated by, or under the control
of, the Company, or of third parties, the most likely worst case scenario would
be a systems failure beyond the control of the Company to remedy. Such a failure
could materially prevent the Company from operating its business. The Company
believes that such a failure would likely lead to lost revenues, increased
operating costs, loss of customers or other business interruptions of a material
nature, in addition to potential claims against the Company.
20
<PAGE>
Item 3. Quantitative and Qualitative Disclosures about Market Risk
The Company has not entered into any financial instruments for trading or
hedging purposes.
The Company is exposed to fluctuations in foreign currencies relative to the
U.S. dollar, as its revenues, costs, assets and liabilities are, for the most
part, denominated in local currencies. The results of operations of the
Company's subsidiaries, as reported in U.S. dollars, may be significantly
affected by fluctuations in the value of the local currencies in which the
Company transacts business. The Company recorded a foreign currency translation
adjustment of $6.0 million as a component of equity as of June 30, 1999. Such
amount is recorded upon the translation of the foreign subsidiaries' financial
statements into U.S. dollars, and is dependent upon the various foreign exchange
rates and the magnitude of the foreign subsidiaries' financial statements. For
the six month period ended June 30, 1999, the Company had recorded a foreign
currency transaction gain of approximately $14.0 million, primarily as a result
of the decrease in the Deutsche mark against the U.S. dollar in connection with
the DM296 million 10% Senior Discount Notes issued during 1998.
The Company incurs settlement costs when it exchanges traffic via operating
agreements with foreign correspondents. These costs currently represent a small
portion of the total costs of services; however, as the Company's international
operations increase, it expects that these costs will become a more significant
portion of its cost of services. Such costs are settled by utilizing a net
settlement process with the Company's foreign correspondents comprised of
special drawing rights ("SDRs"). SDRs are the established method of settlement
among international telecommunications carriers. The SDRs are valued based upon
a basket of foreign currencies and the Company believes that this mitigates, to
some extent, its foreign currency exposure. The Company has monitored and will
continue to monitor its foreign currency exposure, and, if necessary, may enter
into forward contracts and/or similar instruments to mitigate the potential
impacts of such risks.
The Company is currently not exposed to material future earnings or cash flow
exposures from changes in interest rates on long-term debt obligations since the
majority of the Company's long-term debt obligations are at fixed rates. The
Company is exposed to interest rate risk, as additional financing may be
required due to the large operating losses and capital expenditures associated
with establishing and expanding the Company's networks and facilities. The
interest rate that the Company will be able to obtain on additional financing
will depend on market conditions at that time, and may differ from the rates the
Company has secured on its current debt. The Company does not currently
anticipate entering into interest rate swap and/or similar instruments.
The Company's carrying value of cash and cash equivalents, accounts receivable,
accounts payable, marketable securities - available for sale, restricted
marketable securities - held to maturity, accrued expenses and notes payable is
a reasonable approximation of their fair value.
At June 30, 1999, the fair value of the Company's long-term debt was estimated
to be $1.14 billion based on the overall weighted average rate of the Company's
long-term debt of 10.6% and an overall weighted average maturity of 8.8 years
compared to terms and rates currently available in long-term financing markets.
Market risk is estimated as the potential decrease in fair value of the
Company's long-term debt resulting from a hypothetical increase of 106 basis
points in interest rates (ten percent of the Company's overall weighted average
borrowing rate). Such an increase in interest rates would result in
approximately a $103.3 million decrease in fair value of the Company's long-term
debt.
21
<PAGE>
PART II
OTHER INFORMATION
Item 1. Legal Proceedings.
The Company is, from time to time, a party to litigation that arises in the
normal course of business. The Company is not presently a party to any
litigation that it believes would reasonably be expected to have a material
adverse effect on its business or results of operations.
Item 2. Change in Securities and Use of Proceeds
In April 1999, the Company issued to the principal shareholders of
ICN/Commsource Network Services, LLC, a total of 35,963 shares of the Company's
Class A Common Stock in connection with the merger of ICN into a wholly owned
subsidiary of the Company. The issuance of such shares was exempt from
registration under the Securities Act pursuant to Section 4(2) thereof.
In April 1999, the Company issued to Dov Bar-Gera 158,439 shares of the
Company's Class A Common Stock in exchange for approximately a 15% interest in
RSL COM Austria AG. The issuance of such shares was exempt from registration
under the Securities Act pursuant to Section 4(2) thereof.
In June 1999, the Company issued to Coral Gate Investments Ltd. ("CGI") an
affiliate of the Cisneros Group of Companies, 1,032,485 shares of the Company's
Class A Common Stock plus cash in exchange for CGI's 49% interest in RSL COM
Latin America, Ltd. As a result, RSL COM Latin America, Ltd. became a wholly
owned subsidiary of the Company. The issuance of such shares was exempt from
registration under the Securities Act pursuant to Section 4(2) thereof.
Item 4. Submission of Matters to a Vote of Security Holders
On June 8, 1999, the Company held its annual general meeting (the "Meeting") of
shareholders of the Company. At the Meeting, there were present in person or by
proxy a total of 22,891,336 shares of Class A Common Stock out of a total
26,945,691 shares of such stock issued and outstanding and entitled to vote at
the Meeting, and a total of 26,241,147 shares of Class B Common Stock of the
Company out of a total of 26,245,315 issued and outstanding and entitled to vote
at the meeting (or, in the aggregate 285,302,806 votes out of a total of
289,398,841 potential votes).
The shareholders voted in favor of the election of the following eight directors
to serve on the Company's Board of Directors until the next annual general
meeting of shareholders: Ronald S. Lauder, Itzhak Fisher, Jacob Z. Schuster,
Gustavo A. Cisneros, Fred H. Langhammer, Leonard A. Lauder, Eugene A. Sekulow
and Nicolas G. Trollope. Each of the nominees for director received 285,298,474
votes in favor of his election (except that Mr. Cisneros received 285,298,374,
and Mr. Trollope received 285,298,449, votes), 0 votes against his election and
0 abstention votes.
In addition, the shareholders voted in favor of (i) a proposal to amend the
Company's 1997 Stock Incentive Plan (the "Plan") to expand the existing group of
participants to whom options and other awards may be granted as follows:
283,022,258 votes for, 70,374 votes against and 4,486 abstention votes, (ii) a
proposal to amend the Plan to increase by 5,000,000 to 8,100,000 the number of
shares with respect to which options or
22
<PAGE>
other awards may be granted as follows: 278,694,289 votes for, 4,398,683 votes
against and 4,146 abstention votes, (iii) a proposal to amend the Company's
by-laws as follows: 282,856,272 votes for, 232,185 votes against and 8,661
abstention votes, (iv) the adoption of the financial statements of the Company
for the Company's fiscal year ended December 31, 1998, together with the
auditor's report thereon as follows: 285,295,892 votes for, 4,374 votes against
and 2,540 abstention votes and (v) the appointment of Deloitte & Touche LLP as
auditors for the Company and the delegation to the Company's Audit Committee the
authority to fix the auditor's fee for the current fiscal year as follows:
285,297,909 votes for, 4,006 votes against and 896 abstention votes.
Item 5. Other Information
Forward-Looking Statements
Certain matters discussed in this Report under the heading "Management's
Discussion and Analysis of Financial Condition and Results of Operation -
Liquidity and Capital Resources" contain certain forward-looking statements
which involve risks and uncertainties and depend upon certain assumptions, some
of which may be beyond the Company's control, including changing market
conditions, competitive and regulatory matters (such as timing and extent of
deregulation of telecommunications market, the size and financial resources of
competitors, etc.), general economic conditions in the markets in which the
Company operates, Year 2000 readiness of the Company's customers and suppliers,
etc. and, accordingly, there can be no assurance with regard to such statements.
Item 6. Exhibits and Reports on Form 8-K
Exhibits:
3.1 Certificate of Incorporation of RSL Communications, Ltd., issued by the
Bermuda Registrar of Companies on March 14, 1996 (incorporated by
reference to Registrant's Registration Statement on Form S-4
(Registration No.333-25749))
3.2 Memorandum of Association of RSL Communications, Ltd., filed with the
Bermuda Registrar of Companies on March 14, 1996 (incorporated by
reference to Registrant's Registration Statement on Form S-4
(Registration No.333-25749))
3.3 Bye-Laws of RSL Communications, Ltd., as amended to date (filed
herewith)
4.1 Form of Class A Common Share (incorporated by reference to Registrant's
Registration Statement on Form S-1 (Registration No. 333-34281))
10.1 Indenture, dated as of May 13, 1999, by and among RSL Communications
PLC, RSL Communications, Ltd. and The Chase Manhattan Bank, as Trustee,
containing, as exhibits, specimens of 9 7/8% Senior Notes due 2009
(filed herewith)
10.2 Note Deposit Agreement, dated as of May 13, 1999, by and among RSL
Communications PLC, RSL Communications, Ltd. and The Chase Manhattan
Bank, as Book Entry Depositary (filed herewith)
10.3 Exchange and Registration Rights Agreement, dated as of May 13, 1999,
among RSL Communications PLC, RSL Communications, Ltd. and Goldman,
Sachs & Co. (filed herewith)
10.4 RSL Communications, Ltd. 1997 Stock Incentive Plan, as amended to date
(incorporated by reference to Registrant's definitive proxy materials
relating to its June 8, 1999 Annual General Meeting as filed with the
Securities and Exchange Commission)
27.1 Financial Data Schedule (filed herewith)
23
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Quarterly Report on Form 10-Q to be signed on
its behalf by the undersigned thereunto duly authorized.
RSL COMMUNICATIONS, LTD.
Date: August 13, 1999 By /s/ Joel S. Beckoff
--------------- ---------------------------------
Name: Joel S. Beckoff
Title: Vice President - Controller
and Chief Accounting Officer
24
<PAGE>
Exhibit Index
3.1 Certificate of Incorporation of RSL Communications, Ltd., issued by the
Bermuda Registrar of Companies on March 14, 1996 (incorporated by
reference to Registrant's Registration Statement on Form S-4
(Registration No.333-25749))
3.2 Memorandum of Association of RSL Communications, Ltd., filed with the
Bermuda Registrar of Companies on March 14, 1996 (incorporated by
reference to Registrant's Registration Statement on Form S-4
(Registration No.333-25749))
3.3 Bye-Laws of RSL Communications, Ltd., as amended to date (filed
herewith)
4.1 Form of Class A Common Share (incorporated by reference to Registrant's
Registration Statement on Form S-1 (Registration No. 333-34281))
10.1 Indenture, dated as of May 13, 1999, by and among RSL Communications
PLC, RSL Communications, Ltd. and The Chase Manhattan Bank, as Trustee,
containing, as exhibits, specimens of 9 7/8% Senior Notes due 2009
(filed herewith)
10.2 Note Deposit Agreement, dated as of May 13, 1999, by and among RSL
Communications PLC, RSL Communications, Ltd. and The Chase Manhattan
Bank, as Book Entry Depositary (filed herewith)
10.3 Exchange and Registration Rights Agreement, dated as of May 13, 1999,
among RSL Communications PLC, RSL Communications, Ltd. and Goldman,
Sachs & Co. (filed herewith)
10.4 RSL Communications, Ltd. 1997 Stock Incentive Plan, as amended to date
(incorporated by reference to Registrant's definitive proxy materials
relating to its June 8, 1999 Annual General Meeting as filed with the
Securities and Exchange Commission)
27.1 Financial Data Schedule (filed herewith)
25
<PAGE>
B Y E - L A W S
of
RSL Communications, Ltd.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Bye-Law
Page
<S> <C> <C>
1 Interpretation 1
2 Board of Directors 3
3 Management of the Company 3
4 Power to appoint managing director or chief executive officer 3
5 Power to appoint manager 3
6 Power to authorise specific actions 4
7 Power to appoint attorney 4
8 Executive Committee and Other Committees 4
9 Power to appoint and dismiss employees 6
10 Power to borrow and charge property 6
11 Exercise of power to purchase shares of or
discontinue the Company 6
12 Election of Directors 6
13 Defects in appointment of Directors 7
14 Alternate Directors 7
15 Removal of Directors 8
16 Vacancies on the Board 8
17 Notice of meetings of the Board 9
18 Quorum at meetings of the Board 10
19 Meetings of the Board 10
20 Unanimous written resolutions 10
21 Contracts and disclosure of Directors' interests10
22 Remuneration of Directors 11
23 Officers of the Company 11
24 Appointment of Officers 11
25 Remuneration of Officers 11
26 Duties of Officers 12
27 Chairman of meetings 12
28 Register of Directors and Officers 12
29 Obligations of Board to keep minutes 13
30 Indemnification of Directors and Officers of the Company 14
31 Waiver of claim by Member 14
32 Notice of annual general meeting 14
33 Notice of special general meeting 15
34 Accidental omission of notice of general meeting 15
35 Meeting called on requisition of members 16
</TABLE>
<PAGE>
(ii)
<TABLE>
<S> <C> <C>
36 Short notice 16
37 Postponement of meetings 16
38 Quorum for general meeting 16
39 Adjournment of meetings 17
40 Attendance at meetings 17
41 Written resolutions 17
42 Attendance of Directors 18
43 Voting at meetings 18
44 Voting on show of hands 19
45 Decision of chairman 19
46 Demand for a poll 19
47 Seniority of joint holders voting 20
48 Instrument of proxy 21
49 Representation of corporations at meetings 22
50 Rights of shares 22
51 Power to issue shares 25
51A Warrants 26
52 Variation of rights, alteration of share capital and purchase
of shares of the Company 26
53 Registered holder of shares 27
54 Death of a joint holder 28
55 Share certificates 28
56 Calls on shares 28
57 Forfeiture of Shares 29
58 Contents of Register of Members 29
59 Inspection of Register of Members 30
60 Determination of record dates 30
61 Instrument of transfer 30
62 Restriction on Transfer 31
63 Transfers by joint holders 31
64 Representative of deceased Member 31
65 Registration on death or bankruptcy 32
66 Declaration of dividends by Board 32
67 Other distributions 32
68 Reserve fund 33
69 Deduction of amounts due to the Company 33
70 Issue of bonus shares 33
71 Records of account 33
72 Financial year end 34
73 Financial statements 34
</TABLE>
<PAGE>
(iii)
<TABLE>
<S> <C> <C>
74 Appointment of Auditor 34
75 Remuneration of Auditor 35
76 Vacation of office of Auditor 35
77 Access to books of the Company 35
78 Report of the Auditor 35
79 Notices to Members of the Company 36
80 Notices to joint Members 36
81 Service and delivery of notice 36
82 The seal 37
83 Manner in which seal is to be affixed 37
84 Winding-up/distribution by liquidator 37
85 Alteration of Bye-laws 38
</TABLE>
<PAGE>
INTERPRETATION
1. Interpretation
--------------
(1) In these Bye-laws the following words and expressions shall,
where not inconsistent with the context, have the following meanings
respectively:-
(a) "Act" means the Companies Act 1981 as
amended from time to time;
(b) "Alternate Director" means an alternate
Director appointed in accordance with these
Bye-laws;
(c) "Auditor" includes any individual or
partnership;
(d) "Board" means the Board of Directors
appointed or elected pursuant to these
Bye-laws and acting by resolution in
accordance with the Act and these Bye-laws
or the Directors present at a meeting of
Directors at which there is a quorum;
(e) "Company" means the company for which these
Bye-laws are approved and confirmed;
(f) "Director" means a director of the Company
and shall include an Alternate Director;
(g) "Member" means the person registered in the
Register of Members as the holder of shares
in the Company and, when two or more
persons are so registered as joint holders
of shares, means the person whose name
stands first in the Register of Members as
one of such joint holders or all of such
persons as the context so requires;
(h) "notice" means written notice as further
defined in these Bye-laws unless otherwise
specifically stated;
(i) "Officer" means any person appointed by the
Board to hold an office in the Company;
(j) "Register of Directors and Officers" means
the Register of Directors and Officers
referred to in these Bye-laws;
<PAGE>
- 2 -
(k) "Register of Members" means the Register of
Members referred to in these Bye-laws; and
(l) "Secretary" means the person appointed to
perform any or all the duties of secretary
of the Company and includes any deputy or
assistant secretary.
(2) In these Bye-laws, where not inconsistent with the
context:-
--------------------------------------------------
(a) words denoting the plural number include the
singular number and vice
versa;
(b) words denoting the masculine gender include
the feminine gender;
(c) words importing persons include companies,
associations or bodies of persons whether
corporate or not;
(d) the word:-
(i) "may" shall be construed as
permissive;
(ii) "shall" shall be construed as
imperative; and
(e) unless otherwise provided herein words or
expressions defined in the Act shall bear the
same meaning in these Bye-laws.
(3) Expressions referring to writing or written shall, unless the
contrary intention appears, include facsimile, printing, lithography,
photography and other modes of representing words in a visible form.
(4) Headings used in these Bye-laws are for convenience only and are
not to be used or relied upon in the construction hereof.
<PAGE>
- 3 -
BOARD OF DIRECTORS
2. Board of Directors
------------------
The business of the Company shall be managed and conducted by the
Board.
3. Management of the Company
-------------------------
(1) In managing the business of the Company, the Board may exercise all
such powers of the Company as are not, by statute or by these Bye-laws,
required to be exercised by the Company in general meeting subject,
nevertheless, to these Bye-laws, the provisions of any statute and to such
regulations as may be prescribed by the Company in general meeting.
(2) No regulation or alteration to these Bye-laws made by the Company
in general meeting shall invalidate any prior act of the Board which would have
been valid if that regulation or alteration had not been made.
(3) The Board may procure that the Company pays all expenses incurred
in promoting and incorporating the Company.
4. Power to appoint managing director or chief executive officer
-------------------------------------------------------------
The Board may from time to time appoint one or more Directors to the
office of managing director or chief executive officer of the Company who
shall, subject to the control of the Board, supervise and administer all of the
general business and affairs of the Company.
5. Power to appoint manager
------------------------
The Board may appoint a person to act as manager of the Company's day
to day business and may entrust to and confer upon such manager such powers and
duties as it deems appropriate for the transaction or conduct of such business.
<PAGE>
- 4 -
6. Power to authorise specific actions
-----------------------------------
The Board may from time to time and at any time authorise any company,
firm, person or body of persons to act on behalf of the Company for any
specific purpose and in connection therewith to execute any agreement, document
or instrument on behalf of the Company.
7. Power to appoint attorney
-------------------------
The Board may from time to time and at any time by power of attorney
appoint any company, firm, person or body of persons, whether nominated
directly or indirectly by the Board, to be an attorney of the Company for such
purposes and with such powers, authorities and discretions (not exceeding those
vested in or exercisable by the Board) and for such period and subject to such
conditions as it may think fit and any such power of attorney may contain such
provisions for the protection and convenience of persons dealing with any such
attorney as the Board may think fit and may also authorise any such attorney to
sub-delegate all or any of the powers, authorities and discretions so vested in
the attorney. Such attorney may, if so authorised under the seal of the
Company, execute any deed or instrument under such attorney's personal seal
with the same effect as the affixation of the seal of the Company.
8. Executive Committee and Other Committees
----------------------------------------
(1) The Board may designate one or more Committees, including an
Executive Committee, each such Committee to consist of such number of Directors
as from time to time may be fixed by the Board. Any such Committee may be
abolished or re-designated from time to time by the Board. Each member of any
such Committee shall hold office until his or her successor shall have been
designated or he or she shall cease to be a Director, or until his or her
earlier death, resignation or removal.
(2) During the intervals between the meetings of the Board, the
Executive Committee, except as otherwise provided in this Bye-law, shall have
and may exercise all the powers and authority of the Board in the management of
the business of the Company. Each such other
<PAGE>
- 5 -
Committee may exercise such powers of the Board as may be provided by
resolution of the Board. Neither the Executive Committee nor any such other
Committee shall have the power or authority to:
(a) amend the Company's Memorandum of Association
or Bye-laws;
(b) adopt an agreement of merger or consolidation
or approve the sale, lease or exchange of all
or substantially all of the Company's
property and assets; or
(c) approve or recommend to the Members a
dissolution of the Company.
The members of the Executive Committee shall be unless
changed in accordance with Bye-law 8(1): Itzhak Fisher, Andrew Gaspar, Ronald S
Lauder, Jacob Z Schuster and Eugene Sekulow.
(3) Each such Committee may fix its own rules of procedures and may
meet at such place, and such time, and upon such notice if any, as it shall
determine from time to time. The presence of a majority of the authorised
members of a Committee shall constitute a quorum for the transaction of
business.
The act of the majority of the members present at any meeting at which
a quorum is present shall be the act of such Committee. Any action required or
permitted to be taken at any meeting of any such Committee may be taken without
a meeting, if all members of such Committee shall consent to such action in
writing. Members of any Committee may participate in a meeting of such
Committee by means of conference telephone or similar communications equipment
by means of which all persons participating in a meeting can hear each other,
and participating in a meeting pursuant to this provision shall constitute
presence in person at such meeting.
<PAGE>
- 6 -
9. Power to appoint and dismiss employees
--------------------------------------
The Board may appoint, suspend or remove any manager, secretary, clerk,
agent or employee of the Company and may fix their remuneration and determine
their duties.
10. Power to borrow and charge property
-----------------------------------
The Board may exercise all the powers of the Company to borrow money
and to mortgage or charge its undertaking, property and uncalled capital, or
any part thereof, and may issue debentures, debenture stock and other
securities whether outright or as security for any debt, liability or
obligation of the Company or any third party.
11. Exercise of power to purchase shares of or discontinue the Company
------------------------------------------------------------------
(1) The Board may exercise all the powers of the Company to purchase
all or any part of its own shares pursuant to Section 42A of the Act.
(2) The Board may exercise all the powers of the Company to discontinue
the Company to a named country or jurisdiction outside Bermuda pursuant to
Section 132G of the Act.
12. Election of Directors
---------------------
The Board shall consist of not less than two Directors or such number
in excess thereof as the Members may from time to time determine who shall be
elected or appointed in the first place at the statutory meeting of the Company
and thereafter, except in the case of casual vacancy, at the annual general
meeting or at any special general meeting called for the purpose and who shall
hold office for such term as the Members may determine or, in the absence of
such determination, until the next annual general meeting or until their
successors are elected or appointed or their office is otherwise vacated, and
any general meeting may authorise the Board to fill any vacancy in their number
left unfilled at a general meeting.
<PAGE>
- 7 -
13. Defects in appointment of Directors
-----------------------------------
All acts done bona fide by any meeting of the Board or by a committee
of the Board or by any person acting as a Director shall, notwithstanding that
it be afterwards discovered that there was some defect in the appointment of
any Director or person acting as aforesaid, or that they or any of them were
disqualified, be as valid as if every such person had been duly appointed and
was qualified to be a Director.
14. Alternate Directors
-------------------
(1) Any general meeting of the Company may elect a person or persons to
act as a Director in the alternative to any one or more of the Directors of the
Company or may authorise the Board to appoint such Alternate Directors. Unless
the Members otherwise resolve, any Director may appoint a person or persons to
act as a Director in the alternative to himself or herself by notice in writing
deposited with the Secretary. Any person so appointed shall have all the rights
and powers of the Director or Directors for whom such person is appointed in
the alternative provided that such person shall not be counted more than once
in determining whether or not a quorum is present.
(2) An Alternate Director shall be entitled to receive notice of all
meetings of the Board and to attend and vote at any such meeting at which a
Director for whom such Alternate Director was appointed in the alternative is
not personally present and generally to perform at such meeting all the
functions of such Director for whom such Alternate Director was appointed.
(3) An Alternate Director shall cease to be such if the Director for
whom such Alternate Director was appointed ceases for any reason to be a
Director but may be re-appointed by the Board as alternate to the person
appointed to fill the vacancy in accordance with these Bye-laws.
<PAGE>
- 8 -
15. Removal of Directors
--------------------
(1) Subject to any provision to the contrary in these Bye-laws, the
Members may, at any special general meeting convened and held in accordance
with these Bye-laws, remove a Director provided that the notice of any such
meeting convened for the purpose of removing a Director shall contain a
statement of the intention so to do and be served on such Director not less
than 14 days before the meeting and at such meeting such Director shall be
entitled to be heard on the motion for such Director's removal.
(2) A vacancy on the Board created by the removal of a Director under
the provisions of subparagraph (1) of this Bye-law may be filled by the Members
at the meeting at which such Director is removed and, in the absence of such
election or appointment, the Board may fill the vacancy.
16. Vacancies on the Board
----------------------
(1) The Board shall have the power from time to time and at any time to
appoint any person as a Director to fill a vacancy on the Board occurring as
the result of the death, disability, disqualification or resignation of any
Director and to appoint an Alternate Director to any Director so appointed.
(2) The Board may act notwithstanding any vacancy in its number but, if
and so long as its number is reduced below the number fixed by these Bye-laws
as the quorum necessary for the transaction of business at meetings of the
Board, the continuing Directors or Director may act for the purpose of (i)
summoning a general meeting of the Company or (ii) preserving the assets of the
Company.
(3) The office of Director shall be vacated if the Director:-
(a) is removed from office pursuant to these
Bye-laws or is prohibited from being a
Director by law;
<PAGE>
- 9 -
(b) is or becomes bankrupt or makes any
arrangement or composition with
his creditors generally;
(c) is or becomes of unsound mind or dies;
(d) resigns his or her office by notice in
writing to the Company.
17. Notice of meetings of the Board
-------------------------------
(1) The Chairman, the President and CEO or the Secretary on the
requisition of any two directors may at any time summon a meeting of the Board
on two days' notice.
(2) Notice of a meeting of the Board shall be deemed to be duly given
to a Director if it is given to such Director verbally in person or by
telephone or otherwise communicated or sent to such Director by post, cable,
telex, telecopier, facsimile or other mode of representing words in a legible
and non-transitory form at such Director's last known address or any other
address given by such Director to the Company for this purpose.
18. Quorum at meetings of the Board
-------------------------------
The quorum necessary for the transaction of business at a meeting of
the Board shall be a majority of the Directors at the time in office.
19. Meetings of the Board
---------------------
(1) The Board may meet for the transaction of business, adjourn and
otherwise regulate its meetings as it sees fit.
(2) Directors may participate in any meeting of the Board by means of
such telephone, electronic or other communication facilities as permit all
persons participating in the meeting to communicate with each other
simultaneously and instantaneously, and participation in such a meeting shall
constitute presence in person at such meeting.
<PAGE>
- 10 -
(3) A resolution put to the vote at a meeting of the Board shall be
carried by the affirmative votes of a majority of the votes cast and in the
case of an equality of votes the resolution shall fail.
20. Unanimous written resolutions
-----------------------------
A resolution in writing signed by all the Directors which may be in
counterparts, shall be as valid as if it had been passed at a meeting of the
Board duly called and constituted, such resolution to be effective on the date
on which the last Director signs the resolution. For the purposes of this
Bye-law only, "Director" shall not include an Alternate Director.
21. Contracts and disclosure of Directors' interests
------------------------------------------------
(1) Any Director, or any Director's firm, partner or any company with
whom any Director is associated, may act in a professional capacity for the
Company and such Director or such Director's firm, partner or such company
shall be entitled to remuneration for professional services as if such Director
were not a Director, provided that nothing herein contained shall authorise a
Director or Director's firm, partner or such company to act as Auditor of the
Company.
(2) A Director who is directly or indirectly interested in a contract
or proposed contract or arrangement with the Company shall declare the nature
of such interest as required by the Act.
(3) Following a declaration being made pursuant to this Bye-law, and
unless disqualified by the chairman of the relevant Board meeting, a Director
may vote in respect of any contract or proposed contract or arrangement in
which such Director is interested and may be counted in the quorum at such
meeting.
<PAGE>
- 11 -
22. Remuneration of Directors
-------------------------
The remuneration, (if any) of the Directors shall be determined by the
Company in general meeting and shall be deemed to accrue from day to day. The
Directors may also be paid all travel, hotel and other expenses properly
incurred by them in attending and returning from meetings of the Board, any
committee appointed by the Board, general meetings of the Company, or in
connection with the business of the Company or their duties as Directors
generally.
OFFICERS
23. Officers of the Company
-----------------------
The Officers of the Company shall consist of a President and a Vice
President or a Chairman and a deputy Chairman, a Treasurer, a Secretary and
such additional Officers as the Board may from time to time determine all of
whom shall be deemed to be Officers for the purposes of these Bye-laws.
24. Appointment of Officers
-----------------------
(1) The Board shall, as soon as possible after the statutory meeting of
Members and after each annual general meeting appoint a President and Vice
President or a Chairman and Deputy Chairman who shall be Directors.
(2) The Secretary and additional Officers, if any, shall be appointed
by the Board from time to time.
25. Remuneration of Officers
------------------------
The Officers shall receive such remuneration as the Board may from time
to time determine.
<PAGE>
- 12 -
26. Duties of Officers
------------------
The Officers shall have such powers and perform such duties in the
management, business and affairs of the Company as may be delegated to them by
the Board from time to time.
27. Chairman of meetings
--------------------
Unless otherwise agreed by a majority of those attending and entitled
to attend and vote thereat, the Chairman, if there be one, and if not the
President shall act as chairman at all meetings of the Members and of the Board
at which such person is present. In their absence the Deputy Chairman or Vice
President, if present, shall act as chairman and in the absence of all of them
a chairman shall be appointed or elected by those present at the meeting and
entitled to vote.
28. Register of Directors and Officers
----------------------------------
(1) The Board shall cause to be kept in one or more books at its
registered office a Register of Directors and Officers and shall enter therein
the following particulars with respect to each Director and the President, each
Vice-President, the Chairman, and each Deputy Chairman, provided that each such
person is a Director and the Secretary, that is to say:
(a) first name and surname; and
(b) address.
(2) The Board shall, within the period of fourteen days from
the occurrence of
(a) any change among its Directors, the President,
any Vice-President, the Chairman, and any
Deputy Chairman, provided that each such
person is a Director, and in the Secretary; or
(b) any change in the particulars contained in
the Register of Directors and Officers,
<PAGE>
- 13 -
cause to be entered on the Register of Directors and Officers the particulars
of such change and the date on which such change occurred.
(3) The Register of Directors and Officers shall be open to inspection
at the office of the Company on every business day, subject to such reasonable
restrictions as the Board may impose, so that not less than two hours in each
business day be allowed for inspection.
MINUTES
29. Obligations of Board to keep minutes
------------------------------------
The Board shall cause minutes to be duly entered in books provided for
the purpose:-
(a) of all elections and appointments of Officers;
(b) of the names of the Directors present at each meeting of
the Board and of any committee appointed by the Board;
and
(c) of all resolutions and proceedings of general meetings of
the Members, meetings of the Board, meetings of managers
and meetings of committees appointed by the Board.
INDEMNITY
30. Indemnification of Directors and Officers of the Company
--------------------------------------------------------
The Directors, Secretary and other Officers for the time being of the
Company and the liquidator or trustees (if any) for the time being acting in
relation to any of the affairs of the Company and every one of them, and their
heirs, executors and administrators, shall be indemnified and secured harmless
out of the assets of the Company from and against all actions, costs, charges,
losses, damages and expenses which they or any of them, their heirs, executors
or administrators, shall or may incur or sustain by or by reason of any act
done, concurred in or omitted in or about the
<PAGE>
- 14 -
execution of their duty, or supposed duty, or in their respective offices or
trusts, and none of them shall be answerable for the acts, receipts, neglects
or defaults of the others of them or for joining in any receipts for the sake
of conformity, or for any bankers or other persons with whom any moneys or
effects belonging to the Company shall or may be lodged or deposited for safe
custody, or for insufficiency or deficiency of any security upon which any
moneys of or belonging to the Company shall be placed out on or invested, or
for any other loss, misfortune or damage which may happen in the execution of
their respective offices or trusts, or in relation thereto, PROVIDED THAT this
indemnity shall not extend to any matter in respect of any fraud or dishonesty
which may attach to any of said persons.
31. Waiver of claim by Member
-------------------------
Each Member agrees to waive any claim or right of action such Member
might have, whether individually or by or in the right of the Company, against
any Director or Officer on account of any action taken by such Director or
Officer, or the failure of such Director or Officer to take any action in the
performance of his duties with or for the Company, PROVIDED THAT such waiver
shall not extend to any matter in respect of any fraud or dishonesty which may
attach to such Director or Officer.
MEETINGS
32. Notice of annual general meeting
--------------------------------
(1) The annual general meeting of the Company shall be held in each
year other than the year of incorporation at such time and place as the
President or the Chairman or any two Directors or any Director and the
Secretary or the Board shall appoint. At least five days notice of such meeting
shall be given to each Member stating the date, place and time at which the
meeting is to be held, that the election of Directors will take place thereat,
and as far as practicable, the other business to be conducted at the meeting.
<PAGE>
- 15 -
(2) Proposals of business to be considered by the Members at an annual
general meeting of Members may be presented at an annual general meeting of
Members by any Member of the Company who was a Member of record at the time of
giving notice provided for in this bye-law who is entitled to vote at an annual
general meeting and who complies with the notice procedures set forth in
Bye-law 32(3) below.
(3) For business to be properly brought before an annual general
meeting of Members pursuant to Bye-law 32(2) above, the Member must have given
timely notice thereof in writing to the Secretary of the Company and such other
business must otherwise be a proper matter for Member action in accordance with
the U.S. Securities Exchange Act of 1934, as amended, and the rules and
interpretations thereunder (or any successor law or provision thereto), and
Bermuda law. To be timely, a Member's notice shall be delivered to the
Secretary at the principal executive offices of the Company at such time as is
determined in accordance with the proxy rules promulgated by the U.S.
Securities and Exchange Commission relating to the inclusion of shareholder
proposals in proxy statements.
33. Notice of special general meeting
---------------------------------
The President or the Chairman or any two Directors or any Director and
the Secretary or the Board may convene a special general meeting of the Company
whenever in their judgment such a meeting is necessary, upon not less than five
days' notice which shall state the date, time, place and the general nature of
the business to be considered at the meeting.
34. Accidental omission of notice of general meeting
------------------------------------------------
The accidental omission to give notice of a general meeting to, or the
non-receipt of notice of a general meeting by, any person entitled to receive
notice shall not invalidate the proceedings at that meeting.
<PAGE>
- 16 -
35. Meeting called on requisition of Members
----------------------------------------
Notwithstanding anything herein, the Board shall, on the requisition of
Members holding at the date of the deposit of the requisition not less than
one-tenth of such of the paid-up share capital of the Company as at the date of
the deposit carries the right to vote at general meetings of the Company,
forthwith proceed to convene a special general meeting of the Company and the
provisions of section 74 of the Act shall apply.
36. Short notice
------------
A general meeting of the Company shall, notwithstanding that it is
called by shorter notice than that specified in these Bye-laws, be deemed to
have been properly called if it is so agreed by (i) all the Members entitled to
attend and vote thereat in the case of an annual general meeting; and (ii) by a
majority in number of the Members having the right to attend and vote at the
meeting, being a majority together holding not less than 95% in nominal value
of the shares giving a right to attend and vote thereat in the case of a
special general meeting.
37. Postponement of meetings
------------------------
The Board may postpone any general meeting called in accordance with
the provisions of these Bye-laws (other than a meeting requisitioned under
these Bye-laws) provided that notice of postponement is given to each Member
before the time for such meeting. Fresh notice of the date, time and place for
the postponed meeting shall be given to each Member in accordance with the
provisions of these Bye-laws.
38. Quorum for general meeting
--------------------------
At any general meeting of the Company two persons present in person and
representing in person or by proxy in excess of 50% of the total issued voting
shares in the Company throughout the meeting shall form a quorum for the
transaction of business, PROVIDED that if the Company shall at any time have
only one Member, one Member present in person or by proxy shall form a quorum
for the transaction of business at any general meeting of the Company held
during such
<PAGE>
- 17 -
time. If within half an hour from the time appointed for the meeting a quorum
is not present, the meeting shall stand adjourned to the same day one week
later, at the same time and place or to such other day, time or place as the
Board may determine.
39. Adjournment of meetings
-----------------------
The chairman of a general meeting may, with the consent of the Members
at any general meeting at which a quorum is present (and shall if so directed),
adjourn the meeting. Unless the meeting is adjourned to a specific date and
time, fresh notice of the date, time and place for the resumption of the
adjourned meeting shall be given to each Member in accordance with the
provisions of these Bye-laws.
40. Attendance at meetings
----------------------
Members may participate in any general meeting by means of such
telephone, electronic or other communication facilities as permit all persons
participating in the meeting to communicate with each other simultaneously and
instantaneously, and participation in such a meeting shall constitute presence
in person at such meeting.
41. Written resolutions
-------------------
(1) Subject to subparagraph (6), anything which may be done by
resolution of the Company in general meeting or by resolution of a meeting of
any class of the Members of the Company, may, without a meeting and without any
previous notice being required, be done by resolution in writing signed by, or,
in the case of a Member that is a corporation whether or not a company within
the meaning of the Act, on behalf of, all the Members who at the date of the
resolution would be entitled to attend the meeting and vote on the resolution.
(2) A resolution in writing may be signed by, or, in the case of a
Member that is a corporation whether or not a company within the meaning of the
Act, on behalf of, all the Members, or any class thereof, in as many
counterparts as may be necessary.
<PAGE>
- 18 -
(3) For the purposes of this Bye-law, the date of the resolution is the
date when the resolution is signed by, or, in the case of a Member that is a
corporation whether or not a company within the meaning of the Act, on behalf
of, the last Member to sign and any reference in any Bye-law to the date of
passing of a resolution is, in relation to a resolution made in accordance with
this Bye-law, a reference to such date.
(4) A resolution in writing made in accordance with this Bye-law is as
valid as if it had been passed by the Company in general meeting or by a
meeting of the relevant class of Members, as the case may be, and any reference
in any Bye-law to a meeting at which a resolution is passed or to Members
voting in favour of a resolution shall be construed accordingly.
(5) A resolution in writing made in accordance with this Bye-law shall
constitute minutes for the purposes of sections 81 and 82 of the Act.
(6) This Bye-law shall not apply to:-
(a) a resolution passed pursuant to section 89(5)
of the Act; or
(b) a resolution passed for the purpose of
removing a Director before the expiration of
his term of office under these Bye-laws.
42. Attendance of Directors
-----------------------
The Directors of the Company shall be entitled to receive notice of and
to attend and be heard at any general meeting.
43. Voting at meetings
------------------
(1) Subject to the provisions of the Act and these Bye-laws, any
question proposed for the consideration of the Members at any general meeting
shall be decided by the affirmative vote
<PAGE>
- 19 -
of a majority of the votes cast in accordance with the provisions of these
Bye-laws and in the case of an equality of votes the resolution shall fail.
(2) No Member shall be entitled to vote at any general meeting unless
such Member has paid all the calls on all shares held by such Member.
44. Voting on show of hands
-----------------------
At any general meeting a resolution put to the vote of the meeting
shall, in the first instance, be voted upon by a show of hands and, subject to
any rights or restrictions for the time being lawfully attached to any class of
shares and subject to the provisions of these Bye-laws, every Member present in
person and every person holding a valid proxy at such meeting shall be entitled
to one vote and shall cast such vote by raising his or her hand.
45. Decision of chairman
--------------------
At any general meeting a declaration by the chairman of the meeting
that a question proposed for consideration has, on a show of hands, been
carried, or carried unanimously, or by a particular majority, or lost, and an
entry to that effect in a book containing the minutes of the proceedings of the
Company shall, subject to the provisions of these Bye-laws, be conclusive
evidence of that fact.
46. Demand for a poll
-----------------
(1) Notwithstanding the provisions of the immediately preceding two
Bye-laws, at any general meeting of the Company, in respect of any question
proposed for the consideration of the Members (whether before or on the
declaration of the result of a show of hands as provided for in these
Bye-laws), a poll may be demanded by any of the following persons:-
(a) the chairman of such meeting; or
(b) at least three Members present in person or
represented by proxy; or
<PAGE>
- 20 -
(c) any Member or Members present in person or
represented by proxy and holding between them
not less than one-tenth of the total voting
rights of all the Members having the right to
vote at such meeting; or
(d) any Member or Members present in person or
represented by proxy holding shares in the
Company conferring the right to vote at such
meeting, being shares on which an aggregate
sum has been paid up equal to not less than
one-tenth of the total sum paid up on all
such shares conferring such right.
(2) Where, in accordance with the provisions of subparagraph (1) of
this Bye-law, a poll is demanded, subject to any rights or restrictions for the
time being lawfully attached to any class of shares, every person present at
such meeting shall have one vote for each share of which such person is the
holder or for which such person holds a proxy and such vote shall be counted in
the manner set out in sub-paragraph (4) of this Bye-Law or in the case of a
general meeting at which one or more Members are present by telephone in such
manner as the chairman of the meeting may direct and the result of such poll
shall be deemed to be the resolution of the meeting at which the poll was
demanded and shall replace any previous resolution upon the same matter which
has been the subject of a show of hands.
(3) A poll demanded in accordance with the provisions of subparagraph
(1) of this Bye-law, for the purpose of electing a chairman or on a question of
adjournment, shall be taken forthwith and a poll demanded on any other question
shall be taken in such manner and at such time and place as the chairman may
direct and any business other than that upon which a poll has been demanded may
be proceeded with pending the taking of the poll.
(4) Where a vote is taken by poll, each person present and entitled to
vote shall be furnished with a ballot paper on which such person shall record
his or her vote in such manner as shall be determined at the meeting having
regard to the nature of the question on which the vote is taken, and each
ballot paper shall be signed or initialled or otherwise marked so as to
identify the
<PAGE>
- 21 -
voter and the registered holder in the case of a proxy. At the conclusion of
the poll, the ballot papers shall be examined and counted by a committee of not
less than two Members or proxy holders appointed by the chairman for the
purpose and the result of the poll shall be declared by the chairman.
47. Seniority of joint holders voting
---------------------------------
In the case of joint holders the vote of the senior who tenders a vote,
whether in person or by proxy, shall be accepted to the exclusion of the votes
of the other joint holders, and for this purpose seniority shall be determined
by the order in which the names stand in the Register of Members.
48. Instrument of proxy
-------------------
The instrument appointing a proxy shall be in writing in the form, or
as near thereto as circumstances admit, of Form "A" in the Schedule hereto,
under the hand of the appointor or of the appointor's attorney duly authorised
in writing, or if the appointor is a corporation, either under its seal, or
under the hand of a duly authorised officer or attorney. The decision of the
chairman of any general meeting as to the validity of any instrument of proxy
shall be final.
49. Representation of corporations at meetings
------------------------------------------
A corporation which is a Member may, by written instrument, authorise
such person as it thinks fit to act as its representative at any meeting of the
Members and the person so authorised shall be entitled to exercise the same
powers on behalf of the corporation which such person represents as that
corporation could exercise if it were an individual Member. Notwithstanding the
foregoing, the chairman of the meeting may accept such assurances as he or she
thinks fit as to the right of any person to attend and vote at general meetings
on behalf of a corporation which is a Member.
<PAGE>
- 22 -
SHARE CAPITAL AND SHARES
50. Rights of shares
----------------
The Company shall be authorized to issue preferred shares (the
"Preferred Shares") and Class A common shares and Class B common shares (the
"Common Shares") which shall have the following powers, designations,
preferences, rights, limitations and qualifications:
(a) Preferred Shares
(i) Dividends. Dividends shall accrue on each Preferred Share on a cumulative
basis at a rate of 8% of the liquidation preference amount per share per annum
and shall be paid when and if declared out of surplus. Cumulative dividends
shall be declared by the Board and payable (to the extent of surplus)
immediately in the event of a liquidation, dissolution or winding up of the
Company, or the sale of the Company to, or amalgamation of the Company into,
another entity. Cumulative dividends shall not be payable and shall be deemed
cancelled and waived upon conversion of the Preferred Shares.
(ii) Voting Rights. Each holder of Preferred Shares shall be entitled to the
number of votes per share, and shall vote together with holders of Class A
Common Shares and Class B Common Shares as a single class, on matters submitted
to the vote of shareholders of the Company, equal to the number of Class B
Common Shares into which a Preferred Share is convertible at the record date.
(iii) Liquidation Preference
(a) In the event of the voluntary or involuntary liquidation,
dissolution or winding up of the Company, and provided there are
sufficient assets after payment of all outstanding debts and other
liabilities, holders of Preferred Shares then outstanding shall be
entitled to
<PAGE>
- 23 -
receive $0.457 per share (to the extent a share is paid up) plus an
amount per share equal to the accrued and unpaid dividends thereon.
(b) Neither the sale, lease or exchange (for cash, shares of stock,
securities or other consideration) of all or substantially all of the
property and assets of the Company, nor the amalgamation or
consolidation of the Company into or with any other Company nor the
amalgamation of any other Company into the Company, shall be deemed to
be a dissolution, liquidation or winding up of the Company.
(iv) Conversion
Each Preferred Share shall, at the option of the holder thereof, be
convertible at any time into one Class B Common Share, and all
Preferred Shares shall be automatically converted into Class B Common
Shares, on a one for one basis, in the event of a firmly underwritten
public offering of the Class A Common Shares of the Company which has
aggregate net proceeds to the Company of at least U.S.$25,000,000.
(v) Reservation of Shares
There are hereby reserved for issuance upon conversion of the Preferred
Shares 20,244,066.54 shares of the authorized but unissued Class B
Common Shares of the Company.
(b) Common Shares
The Common Shares of the Company shall be divided into Class A Common
Shares and Class B Common Shares.
(i) Dividends
The holders of Common Shares shall be entitled to receive dividends
when, as and if declared by the Directors out of funds legally available
therefor with dividends being paid
<PAGE>
- 24 -
equally on the Class A Common Shares and the Class B Common Shares
after the payment of any dividends declared but unpaid on any Preferred
Shares.
(ii) Voting Rights
The holders of Class A Common Shares shall be entitled to cast one vote
per Class A Common Share on all matters submitted for the vote of the
Members of the Company and as otherwise required by law and shall vote
as a single class with the holders of the Class B Common Shares and the
Preferred Shares on all matters subject to approval of the Members and
any matter requiring class voting under the Act. The holders of Class B
Common Shares shall be entitled to cast ten votes per Class B Common
Share held on all matters submitted for the vote of the Members of the
Company and as otherwise required by law and shall vote as a single
class with the holders of the Class A Common Shares and the Preferred
Shares on all matters subject to approval of the Members and any matter
requiring class voting under the Act.
(iii) Liquidation
In the event of the voluntary or involuntary liquidation or winding up
of the Company, the holders of Common Shares are entitled to share
ratably in all assets remaining after payment of all debts and other
liabilities and after distribution in full of the preferential amounts
to be distributed to the holders of any Preferred Shares then
outstanding.
(iv) Convertibility
The holders of Class A Common Shares have no rights to convert their
Class A Common Shares into any other securities. The Class B Common
Shares shall be convertible into Class A Common Shares on a one for one
basis at the option of the holder thereof.
(v) Transfer
Class B Common Shares may be transferred only to other original holders
of Class B Common Shares or to a member of the family of the original
holder by gift, devise or otherwise through laws of inheritance,
descent, distribution or to a trust established by the holder for the
holder's family members, to corporations the majority of beneficial
owners of
<PAGE>
- 25 -
which are or will be owned by the holders of Class B Common Shares, to
their shareholders or partners as the case may be. Any purported
transfer of Class B Common Shares other than in accordance with this
sub-clause (v) shall be void. For the purposes of this sub-clause (v),
"member of the family" means a spouse, a sibling, brother, sister,
mother, or father.
51. Power to issue shares
---------------------
(1) Subject to these Bye-laws and to any resolution of the Members to
the contrary and without prejudice to any special rights previously conferred
on the holders of any existing shares or class of shares, the Board shall have
power to issue any unissued shares of the Company on such terms and conditions
as it may determine and any shares or class of shares may be issued with such
preferred, deferred or other special rights or such restrictions, whether in
regard to dividend, voting, return of capital or otherwise as the Company may
from time to time by resolution of the Members prescribe.
(2) The Board shall, in connection with the issue of any share, have
the power to pay such commission and brokerage as may be permitted by law.
(3) The Company shall not give, whether directly or indirectly, whether
by means of loan, guarantee, provision of security or otherwise, any financial
assistance for the purpose of a purchase or subscription made or to be made by
any person of or for any shares in the Company, but nothing in this Bye-Law
shall prohibit transactions mentioned in Sections 39A, 39B and 39C of the Act.
(4) The Company may from time to time do any one or more of the
following things:
(a) make arrangements on the issue of shares for
a difference between the Members in the
amounts and times of payments of calls on
their shares;
<PAGE>
- 26 -
(b) accept from any Member the whole or a part of
the amount remaining unpaid on any shares
held by him, although no part of that amount
has been called up;
(c) pay dividends in proportion to the amount
paid up on each share where a larger amount
is paid up on some shares than on others; and
(d) issue its shares in fractional denominations
and deal with such fractions to the same
extent as its whole shares and shares in
fractional denominations shall have in
proportion to the respective fractions
represented thereby all of the rights of
whole shares including (but without limiting
the generality of the foregoing) the right to
vote, to receive dividends and distributions
and to participate in a winding up.
51A. Warrants
--------
The Board may issue warrants conferring the rights upon the holders
thereof to subscribe for any class of shares or securities in the capital of
the Company on such terms as it may from time to time determine.
52. Variation of rights, alteration of share capital and purchase of shares
of the Company
-----------------------------------------------------------------------
(1) Subject to the provisions of Sections 42 and 43 of the Act any
preference shares may be issued or converted into shares that, at a
determinable date or at the option of the Company, are liable to be redeemed on
such terms and in such manner as the Company before the issue or conversion may
by resolution of the Members determine.
(2) If at any time the share capital is divided into different classes
of shares, the rights attached to any class (unless otherwise provided by the
terms of issue of the shares of that class) may, whether or not the Company is
being wound-up, be varied with the consent in writing of the holders of
three-fourths of the issued shares of that class or with the sanction of a
resolution passed by a majority of the votes cast at a separate general meeting
of the holders of the shares of the class in accordance with Section 47 (7) of
the Act. The rights conferred upon the holders of the shares of any class
issued with preferred or other rights shall not, unless otherwise expressly
provided by
<PAGE>
- 27 -
the terms of issue of the shares of that class, be deemed to be varied by the
creation or issue of further shares ranking pari passu therewith.
(3) The Company may from time to time by resolution of the Members
change the currency denomination of, increase, alter or reduce its share
capital in accordance with the provisions of Sections 45 and 46 of the Act.
Where, on any alteration of share capital, fractions of shares or some other
difficulty would arise, the Board may deal with or resolve the same in such
manner as it thinks fit including, without limiting the generality of the
foregoing, the issue to Members, as appropriate, of fractions of shares and/or
arranging for the sale or transfer of the fractions of shares of Members.
(4) The Company may from time to time purchase its own shares in
accordance with the provisions of Section 42A of the Act.
53. Registered holder of shares
---------------------------
(1) The Company shall be entitled to treat the registered holder of any
share as the absolute owner thereof and accordingly shall not be bound to
recognise any equitable or other claim to, or interest in, such share on the
part of any other person.
(2) Any dividend, interest or other moneys payable in cash in respect
of shares may be paid by cheque or draft sent through the post directed to the
Member at such Member's address in the Register of Members or, in the case of
joint holders, to such address of the holder first named in the Register of
Members, or to such person and to such address as the holder or joint holders
may in writing direct. If two or more persons are registered as joint holders
of any shares any one can give an effectual receipt for any dividend paid in
respect of such shares.
<PAGE>
- 28 -
54. Death of a joint holder
-----------------------
Where two or more persons are registered as joint holders of a share or
shares then in the event of the death of any joint holder or holders the
remaining joint holder or holders shall be absolutely entitled to the said
share or shares and the Company shall recognise no claim in respect of the
estate of any joint holder except in the case of the last survivor of such
joint holders.
55. Share certificates
------------------
(1) Every Member shall be entitled to a certificate under the seal of
the Company (or a facsimile thereof) specifying the number and, where
appropriate, the class of shares held by such Member and whether the same are
fully paid up and, if not, how much has been paid thereon. The Board may by
resolution determine, either generally or in a particular case, that any or all
signatures on certificates may be printed thereon or affixed by mechanical
means.
(2) The Company shall be under no obligation to complete and deliver a
share certificate unless specifically called upon to do so by the person to
whom such shares have been allotted.
(3) If any such certificate shall be proved to the satisfaction of the
Board to have been worn out, lost, mislaid or destroyed the Board may cause a
new certificate to be issued and request an indemnity for the lost certificate
if it sees fit.
56. Calls on shares
---------------
(1) The Board may from time to time make such calls as it thinks fit
upon the Members in respect of any monies unpaid on the shares allotted to or
held by such Members and, if a call is not paid on or before the day appointed
for payment thereof, the Member may at the discretion of the Board be liable to
pay the Company interest on the amount of such call at such rate as the Board
may determine, from the date when such call was payable up to the actual date
of
<PAGE>
- 29 -
payment. The joint holders of a share shall be jointly and severally liable
to pay all calls in respect thereof.
(2) The Board may, on the issue of shares, differentiate between the
holders as to the amount of calls to be paid and the times of payment of such
calls.
57. Forfeiture of shares
--------------------
(1) If any Member fails to pay, on the day appointed for payment
thereof, any call in respect of any share allotted to or held by such Member,
the Board may, at any time thereafter during such time as the call remains
unpaid, direct the Secretary to forward to such Member a notice in the form, or
as near thereto as circumstances admit, of Form "B" in the Schedule hereto.
(2) If the requirements of such notice are not complied with, any such
share may at any time thereafter before the payment of such call and the
interest due in respect thereof be forfeited by a resolution of the Board to
that effect, and such share shall thereupon become the property of the Company
and may be disposed of as the Board shall determine.
(3) A Member whose share or shares have been forfeited as aforesaid
shall, notwithstanding such forfeiture, be liable to pay to the Company all
calls owing on such share or shares at the time of the forfeiture and all
interest due thereon.
REGISTER OF MEMBERS
58. Contents of Register of Members
-------------------------------
The Board shall cause to be kept in one or more books a Register of
Members and shall enter therein the following particulars:-
<PAGE>
- 30 -
(a) the name and address of each Member, the number and,
where appropriate, the class of shares held by such
Member and the amount paid or agreed to be considered as
paid on such shares;
(b) the date on which each person was entered in the Register
of Members; and
(c) the date on which any person ceased to be a Member for
one year after such person so ceased.
59. Inspection of Register of Members
---------------------------------
The Register of Members shall be open to inspection at the registered
office of the Company on every business day, subject to such reasonable
restrictions as the Board may impose, so that not less than two hours in each
business day be allowed for inspection. The Register of Members may, after
notice has been given by advertisement in an appointed newspaper to that
effect, be closed for any time or times not exceeding in the whole thirty days
in each year.
60. Determination of record dates
-----------------------------
Notwithstanding any other provision of these Bye-laws, the Board may
fix any date as the record date for:-
(a) determining the Members entitled to receive any dividend;
and
(b) determining the Members entitled to receive notice of and
to vote at any general meeting of the Company.
TRANSFER OF SHARES
61. Instrument of transfer
----------------------
(1) An instrument of transfer shall be in the form or as near thereto
as circumstances admit of Form "C" in the Schedule hereto or in such other
common form as the Board may accept. Such instrument of transfer shall be
signed by or on behalf of the transferor and transferee provided that, in the
case of a fully paid share, the Board may accept the instrument signed by or on
behalf
<PAGE>
- 31 -
of the transferor alone. The transferor shall be deemed to remain the holder of
such share until the same has been transferred to the transferee in the
Register of Members.
(2) The Board may refuse to recognise any instrument of transfer unless
it is accompanied by the certificate in respect of the shares to which it
relates and by such other evidence as the Board may reasonably require to show
the right of the transferor to make the transfer.
62. Restriction on transfer
-----------------------
(1) The Board shall refuse to register a transfer unless all applicable
consents, authorisations and permissions of any governmental body or agency in
Bermuda have been obtained.
(2) If the Board refuses to register a transfer of any share the
Secretary shall, within three months after the date on which the transfer was
lodged with the Company, send to the transferor and transferee notice of the
refusal.
63. Transfers by joint holders
--------------------------
The joint holders of any share or shares may transfer such share or
shares to one or more of such joint holders, and the surviving holder or
holders of any share or shares previously held by them jointly with a deceased
Member may transfer any such share to the executors or administrators of such
deceased Member.
TRANSMISSION OF SHARES
64. Representative of deceased Member
---------------------------------
In the case of the death of a Member, the survivor or survivors where
the deceased Member was a joint holder, and the legal personal representatives
of the deceased Member where the deceased Member was a sole holder, shall be
the only persons recognised by the Company as having any title to the deceased
Member's interest in the shares. Nothing herein contained shall release the
<PAGE>
- 32 -
estate of a deceased joint holder from any liability in respect of any share
which had been jointly held by such deceased Member with other persons. Subject
to the provisions of Section 52 of the Act, for the purpose of this Bye-law,
legal personal representative means the executor or administrator of a deceased
Member or such other person as the Board may in its absolute discretion decide
as being properly authorised to deal with the shares of a deceased Member.
65. Registration on death or bankruptcy
-----------------------------------
Any person becoming entitled to a share in consequence of the death or
bankruptcy of any Member may be registered as a Member upon such evidence as
the Board may deem sufficient or may elect to nominate some person to be
registered as a transferee of such share, and in such case the person becoming
entitled shall execute in favour of such nominee an instrument of transfer in
the form, or as near thereto as circumstances admit, of Form "D" in the
Schedule hereto. On the presentation thereof to the Board, accompanied by such
evidence as the Board may require to prove the title of the transferor, the
transferee shall be registered as a Member but the Board shall, in either case,
have the same right to decline or suspend registration as it would have had in
the case of a transfer of the share by that Member before such Member's death
or bankruptcy, as the case may be.
DIVIDENDS AND OTHER DISTRIBUTIONS
66. Declaration of dividends by the Board
-------------------------------------
The Board may, subject to these Bye-laws and in accordance with Section
54 of the Act, declare a dividend to be paid to the Members, in proportion to
the number of shares held by them, and such dividend may be paid in cash or
wholly or partly in specie in which case the Board may fix the value for
distribution in specie of any assets.
67. Other distributions
-------------------
The Board may declare and make such other distributions (in cash or in
specie) to the Members as may be lawfully made out of the assets of the
Company.
<PAGE>
- 33 -
68. Reserve fund
------------
The Board may from time to time before declaring a dividend set aside,
out of the surplus or profits of the Company, such sum as it thinks proper as a
reserve fund to be used to meet contingencies or for equalising dividends or
for any other special purpose.
69. Deduction of Amounts due to the Company
---------------------------------------
The Board may deduct from the dividends or distributions payable to any
Member all monies due from such Member to the Company on account of calls or
otherwise.
CAPITALISATION
70. Issue of bonus shares
---------------------
(1) The Board may resolve to capitalise any part of the amount for the
time being standing to the credit of any of the Company's share premium or
other reserve accounts or to the credit of the profit and loss account or
otherwise available for distribution by applying such sum in paying up unissued
shares to be allotted as fully paid bonus shares pro rata to the Members.
(2) The Company may capitalise any sum standing to the credit of a
reserve account or sums otherwise available for dividend or distribution by
applying such amounts in paying up in full partly paid shares of those Members
who would have been entitled to such sums if they were distributed by way of
dividend or distribution.
ACCOUNTS AND FINANCIAL STATEMENTS
71. Records of account
------------------
The Board shall cause to be kept proper records of account with respect
to all transactions of the Company and in particular with respect to:-
<PAGE>
- 34 -
(a) all sums of money received and expended by the Company
and the matters in respect of which the receipt and
expenditure relates;
(b) all sales and purchases of goods by the Company; and
(c) the assets and liabilities of the Company.
Such records of account shall be kept at the registered office of the Company
or, subject to Section 83 (2) of the Act, at such other place as the Board
thinks fit and shall be available for inspection by the Directors during normal
business hours.
72. Financial year end
------------------
The financial year end of the Company may be determined by resolution
of the Board and failing such resolution shall be 31st December in each year.
73. Financial statements
--------------------
Subject to any rights to waive laying of accounts pursuant to Section
88 of the Act, financial statements as required by the Act shall be laid before
the Members in general meeting.
AUDIT
74. Appointment of Auditor
----------------------
Subject to Section 88 of the Act, at the annual general meeting or at a
subsequent special general meeting in each year, an independent representative
of the Members shall be appointed by them as Auditor of the accounts of the
Company. Such Auditor may be a Member but no Director, Officer or employee of
the Company shall, during his or her continuance in office, be eligible to act
as an Auditor of the Company.
<PAGE>
- 35 -
75. Remuneration of Auditor
-----------------------
The remuneration of the Auditor shall be fixed by the Company in
general meeting or in such manner as the Members may determine.
76. Vacation of office of Auditor
-----------------------------
If the office of Auditor becomes vacant by the resignation or death of
the Auditor, or by the Auditor becoming incapable of acting by reason of
illness or other disability at a time when the Auditor's services are required,
the Board shall, as soon as practicable, convene a special general meeting to
fill the vacancy thereby created.
77. Access to books of the Company
------------------------------
The Auditor shall at all reasonable times have access to all books kept
by the Company and to all accounts and vouchers relating thereto, and the
Auditor may call on the Directors or Officers of the Company for any
information in their possession relating to the books or affairs of the
Company.
78. Report of the Auditor
---------------------
(1) Subject to any rights to waive laying of accounts or appointment of
an Auditor pursuant to Section 88 of the Act, the accounts of the Company shall
be audited at least once in every year.
(2) The financial statements provided for by these Bye-laws shall be
audited by the Auditor in accordance with generally accepted auditing
standards. The Auditor shall make a written report thereon in accordance with
generally accepted auditing standards and the report of the Auditor shall be
submitted to the Members in general meeting.
<PAGE>
- 36 -
(3) The generally accepted auditing standards referred to in
subparagraph (2) of this Bye-law may be those of a country or jurisdiction
other than Bermuda. If so, the financial statements and the report of the
Auditor must disclose this fact and name such country or jurisdiction.
NOTICES
79. Notices to Members of the Company
---------------------------------
A notice may be given by the Company to any Member either by delivering
it to such Member in person or by sending it to such Member's address in the
Register of Members or to such other address given for the purpose. For the
purposes of this Bye-law, a notice may be sent by mail, courier service, cable,
telex, telecopier, facsimile or other mode of representing words in a legible
and non-transitory form.
80. Notices to joint Members
------------------------
Any notice required to be given to a Member shall, with respect to any
shares held jointly by two or more persons, be given to whichever of such
persons is named first in the Register of Members and notice so given shall be
sufficient notice to all the holders of such shares.
81. Service and delivery of notice
------------------------------
Any notice shall be deemed to have been served at the time when the
same would be delivered in the ordinary course of transmission and, in proving
such service, it shall be sufficient to prove that the notice was properly
addressed and prepaid, if posted, and the time when it was posted, delivered to
the courier or to the cable company or transmitted by telex, facsimile or other
method as the case may be.
<PAGE>
- 37 -
SEAL OF THE COMPANY
82. The seal
--------
The seal of the Company shall be in such form as the Board may from
time to time determine. The Board may adopt one or more duplicate seals for use
outside Bermuda.
83. Manner in which seal is to be affixed
-------------------------------------
The seal of the Company shall not be affixed to any instrument except
attested by the signature of a Director and the Secretary or any two Directors,
or some other person appointed by the Board for the purpose, provided that any
Director, or Officer, may affix the seal of the Company attested by such
Director or Officer's signature only to any authenticated copies of these
Bye-laws, the incorporating documents of the Company, the minutes of any
meetings or any other documents required to be authenticated by such Director
or Officer.
WINDING-UP
84. Winding-up/distribution by liquidator
-------------------------------------
If the Company shall be wound up the liquidator may, with the sanction
of a resolution of the Members, divide amongst the Members in specie or in kind
the whole or any part of the assets of the Company (whether they shall consist
of property of the same kind or not) and may, for such purpose, set such value
as he or she deems fair upon any property to be divided as aforesaid and may
determine how such division shall be carried out as between the Members or
different classes of Members. The liquidator may, with the like sanction, vest
the whole or any part of such assets in trustees upon such trusts for the
benefit of the Members as the liquidator shall think fit, but so that no Member
shall be compelled to accept any shares or other securities or assets whereon
there is any liability.
<PAGE>
- 38 -
ALTERATION OF BYE-LAWS
85. Alteration of Bye-laws
----------------------
No Bye-law shall be rescinded, altered or amended and no new Bye-law
shall be made until the same has been approved by a resolution of the Board and
by a resolution of the Members.
*****
***
*
<PAGE>
- 39 -
SCHEDULE - FORM A (Bye-law 48)
..............................................
P R O X Y
I
of
the holder of share in the above-named Company hereby appoint
........................ or failing him/her...................or failing him/her
.........................as my proxy to vote on my behalf at the General
Meeting of the Company to be held on the day of , 19 ,
and at any adjournment thereof.
Dated this day of , 19
*GIVEN under the seal of the company
*Signed by the above-named
..............................................................
.............................................................
Witness
*Delete as applicable.
<PAGE>
- 40 -
SCHEDULE - FORM B (Bye-law 57)
NOTICE OF LIABILITY TO FORFEITURE FOR NON PAYMENT OF CALL
You have failed to pay the call of [amount of call] made on the ...... day of
........, 19.. last, in respect of the [number] share(s) [numbers in figures]
standing in your name in the Register of Members of the Company, on the ......
day of ........., 19.. last, the day appointed for payment of such call. You
are hereby notified that unless you pay such call together with interest
thereon at the rate of .......... per annum computed from the said ....... day
of ........., 19... last, on or before the ....... day of ........., 19... next
at the place of business of the said Company the share(s) will be liable to be
forfeited.
Dated this ....... day of .............., 19...
[Signature of Secretary]
By order of the Board
<PAGE>
- 41 -
SCHEDULE - FORM C (Bye-law 61)
TRANSFER OF A SHARE OR SHARES
FOR VALUE RECEIVED ................................................... [amount]
...................................................................[transferor]
hereby sell assign and transfer unto ..............................[transferee]
of .................................................................. [address]
............................................................ [number of shares]
shares of ....................................................[name of Company]
Dated .............................
.......................................
(Transferor)
In the presence of:
...................................
(Witness)
.......................................
(Transferee)
In the presence of:
...................................
(Witness)
<PAGE>
- 42 -
SCHEDULE - FORM D (Bye-law 65)
TRANSFER BY A PERSON BECOMING ENTITLED ON DEATH/BANKRUPTCY
OF A MEMBER
I/We having become entitled in consequence of the [death/bankruptcy]
of [name of the deceased Member] to [number] share(s) numbered
[number in figures] standing in the register of members of [Company]
in the name of the said [name of deceased Member] instead of being
registered myself/ourselves elect to have [name of transferee] (the
"Transferee") registered as a transferee of such share(s) and I/we
do hereby accordingly transfer the said share(s) to the Transferee
to hold the same unto the Transferee his or her executors
administrators and assigns subject to the conditions on which the
same were held at the time of the execution thereof; and the
Transferee does hereby agree to take the said share(s) subject to
the same conditions.
WITNESS our hands this ........ day of ..........., 19...
Signed by the above-named )
[person or persons entitled] )
in the presence of: )
Signed by the above-named )
[transferee] )
in the presence of: )
<PAGE>
EXECUTION COPY
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
RSL COMMUNICATIONS PLC
As Issuer
RSL COMMUNICATIONS, LTD.
As Guarantor
TO
THE CHASE MANHATTAN BANK
As Trustee
------------------------
Indenture
Dated as of May 13, 1999
------------------------
9 7/8% SENIOR NOTES DUE 2009
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
Certain Sections of this Indenture relating to
Sections 3.10 through 3.18 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- --------------- ---------
<S> <C>
ss.3.10(a)(1) .................................... 609
(a)(2) .................................... 609
(a)(3) .................................... Not
Applicable
(a)(4) .................................... Not
Applicable
(b) .................................... 6.08
.................................... 6.10
ss. 3.11(a) .................................... 6.13
(b) .................................... 6.13
ss. 3.12(a) .................................... 7.01
....................................
7.02(a)
(b) .................................... 7.02(b)
(c) .................................... 7.02(c)
ss. 3.13(a) .................................... 7.03(a)
(a)(4) .................................... 7.03(a)
(b) .................................... 7.03(a)
(c) .................................... 7.03(a)
(d) .................................... 7.03(b)
ss. 3.14(a) .................................... 7.04
.................................... 10.18
(b) .................................... Not
.................................... Applicable
(c)(1) .................................... 1.02
(c)(2) .................................... 1.02
(c)(3) .................................... Not
.................................... Applicable
(d) .................................... Not
.................................... Applicable
(e) .................................... 1.02
ss. 3.15(a) .................................... 6.01
(b) .................................... 6.02
(c) .................................... 6.01
(d) .................................... 6.01
(e) .................................... 5.14
</TABLE>
- ---------------
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
-i-
<PAGE>
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- --------------- ---------
<S> <C>
ss. 3.16(a)(1)(A) .................................... 5.02
.................................... 5.12
(a)(1)(B) .................................... 5.13
(a)(2) .................................... Not
.................................... Applicable
(b) .................................... 5.08
(c) .................................... 1.04
ss. 3.17(a)(1) .................................... 5.03
(a)(2) .................................... 5.04
(b) .................................... 10.03
ss. 3.18(a) .................................... 1.07
</TABLE>
- ---------------
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
-ii-
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Parties........................................................................1
Recitals of the Issuer ........................................................1
ARTICLE I
Definitions and Other Provisions
of General Application
SECTION 1.01. Definitions.....................................................2
Acquired Debt............................................................2
Act......................................................................2
Additional Amounts.......................................................3
Affiliate................................................................3
Agent Member.............................................................3
Applicable Procedures....................................................3
Asset Disposition........................................................3
Average Life.............................................................3
beneficial interest......................................................4
Board of Directors.......................................................4
Board Resolution.........................................................4
Book-Entry Depositary....................................................4
Business Day.............................................................4
Capital Lease Obligation.................................................4
Capital Stock............................................................5
Cedel....................................................................5
Change of Control........................................................5
Commission...............................................................5
Common Stock.............................................................5
Consolidated Cash Flow Available for Fixed Charges.......................5
Consolidated Income Tax Expense..........................................6
Consolidated Interest Expense............................................6
Consolidated Net Income..................................................6
Consolidated Net Worth...................................................7
Consolidated Tangible Assets.............................................7
Corporate Trust Office...................................................7
corporation..............................................................7
Credit Facility..........................................................7
Debt.....................................................................8
</TABLE>
- ---------------
Note: This table of contents shall not, for any purpose, be deemed to be
part of the Indenture.
-iii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Defaulted Interest.......................................................8
Definitive Security......................................................9
Deposit Agreement........................................................9
Depositary...............................................................9
Depositary Interest......................................................9
Disqualified Stock.......................................................9
Eligible Institution.....................................................9
Euroclear...............................................................10
Event of Default........................................................10
Exchange Act............................................................10
Exchange and Registration Rights Agreement..............................10
Exchange Offer..........................................................10
Exchange Offer Registration Statement...................................10
Exchange Security.......................................................10
Existing Stockholders...................................................10
Expiration Date.........................................................10
Global Security.........................................................11
Government Securities...................................................11
Guarantee...............................................................11
Guarantor...............................................................11
Holder..................................................................11
Incremental Paid-in Capital.............................................11
Incur...................................................................12
Indenture...............................................................12
Indirect Participant....................................................12
Initial Purchaser.......................................................12
Interest Payment Date...................................................12
Interest Rate or Currency Protection Agreement..........................12
Investment..............................................................12
Issuer..................................................................13
"Issuer Request" or "Issuer Order"......................................13
Lien....................................................................13
Listing Failure.........................................................14
Marketable Securities...................................................14
Maturity................................................................14
Net Available Proceeds..................................................14
Offer to Purchase.......................................................15
Officers' Certificate...................................................18
Opinion of Counsel......................................................18
Original Securities.....................................................18
Outstanding.............................................................18
</TABLE>
- ---------------
Note: This table of contents shall not, for any purpose, be deemed to be
part of the Indenture.
-iv-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Participant.............................................................19
Paying Agent............................................................19
Permitted Interest Rate or Currency Protection Agreement................20
Permitted Investment....................................................20
Permitted Liens.........................................................20
Person..................................................................21
Predecessor Security....................................................21
Purchase Agreement......................................................21
Purchase Money Debt.....................................................21
readily marketable cash equivalents.....................................22
Receivables.............................................................22
Receivables Sale........................................................22
Redemption Date.........................................................22
Redemption Price........................................................22
Registered Securities...................................................22
Regular Record Date.....................................................23
Regulation S............................................................23
Regulation S Certificate................................................23
Regulation S Global Security............................................23
Regulation S Legend.....................................................23
Regulation S Securities.................................................23
Related Person..........................................................23
Resale Registration Statement...........................................23
Responsible Officer.....................................................23
Restricted Global Security..............................................24
Restricted Period.......................................................24
Restricted Securities...................................................24
Restricted Securities Certificate.......................................24
Restricted Securities Legend............................................24
Restricted Subsidiary...................................................24
RSLNA...................................................................24
Rule 144A...............................................................24
Rule 144A Securities....................................................24
Securities..............................................................24
Securities Act..........................................................25
Securities Act Legend...................................................25
Securities Guarantee....................................................25
"Security Register" and "Security Registrar"............................25
Significant Subsidiary..................................................25
Special Interest........................................................25
</TABLE>
- ---------------
Note: This table of contents shall not, for any purpose, be deemed to be
part of the Indenture.
-v-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Special Record Date.....................................................25
Stated Maturity.........................................................25
Step-Down Date..........................................................25
Step-Up.................................................................25
Strategic Investor......................................................25
Subordinated Debt.......................................................26
Subsidiary..............................................................27
Subsidiary Guarantor....................................................27
Substitute Securities...................................................27
Successor Security......................................................27
Tax.....................................................................27
Taxing Authority........................................................28
Telecommunications Assets...............................................28
Telecommunications Business.............................................28
Trustee.................................................................28
Trust Indenture Act.....................................................28
Unrestricted Securities Certificate.....................................28
Unrestricted Subsidiary.................................................28
Vice President..........................................................29
Voting Stock............................................................29
Wholly Owned Subsidiary.................................................29
SECTION 1.02. Compliance Certificates and Opinions...........................30
SECTION 1.03. Form of Documents Delivered to Trustee.........................30
SECTION 1.04. Acts of Holders; Record Dates..................................31
SECTION 1.05. Notices, Etc., to Trustee, Issuer and Guarantor................34
SECTION 1.06. Notice to Holders; Waiver......................................34
SECTION 1.07. Application of Trust Indenture Act.............................35
SECTION 1.08. Effect of Headings and Table of Contents.......................35
SECTION 1.09. Successors and Assigns.........................................35
SECTION 1.10. Separability Clause............................................35
SECTION 1.11. Benefits of Indenture..........................................35
SECTION 1.12. Governing Law..................................................36
SECTION 1.13. Legal Holidays.................................................36
SECTION 1.14. Agent for Service; Submission to Jurisdiction; Waiver
of Immunities................................................36
</TABLE>
- ---------------
Note: This table of contents shall not, for any purpose, be deemed to be
part of the Indenture.
-vi-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE II
Security Forms
SECTION 2.01. Forms Generally................................................37
SECTION 2.02. Form of Face of Security.......................................38
SECTION 2.03. Form of Reverse of Security....................................44
SECTION 2.04. Form of Trustee's Certificate of Authentication................44
ARTICLE III
The Securities
SECTION 3.01. Title and Terms................................................44
SECTION 3.02. Denominations..................................................51
SECTION 3.03. Execution, Authentication, Delivery and Dating.................51
SECTION 3.04. Temporary Securities...........................................52
SECTION 3.05. Registration, Registration of Transfer and Exchange............53
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities...............60
SECTION 3.07. Payment of Interest; Interest Rights Preserved.................61
SECTION 3.08. Persons Deemed Owners..........................................62
SECTION 3.09. Cancelation....................................................63
SECTION 3.10. Computation of Interest........................................63
SECTION 3.11. CUSIP and ISIN Numbers.........................................63
ARTICLE IV
Guarantee Of Securities
SECTION 4.01. Guarantee......................................................64
SECTION 4.02. Obligations Unconditional......................................66
SECTION 4.03. Notice to Trustee..............................................66
</TABLE>
- ---------------
Note: This table of contents shall not, for any purpose, be deemed to be
part of the Indenture.
-vii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE V
Remedies
SECTION 5.01. Events of Default..............................................66
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment.............69
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement
by Trustee...................................................70
SECTION 5.04. Trustee May File Proofs of Claim...............................71
SECTION 5.05. Trustee May Enforce Claims Without Possession
of Securities................................................71
SECTION 5.06. Application of Money Collected.................................72
SECTION 5.07. Limitation on Suits............................................72
SECTION 5.08. Unconditional Right of Holders To Receive Principal,
Premium and Interest.........................................73
SECTION 5.09. Restoration of Rights and Remedies.............................73
SECTION 5.10. Rights and Remedies Cumulative.................................73
SECTION 5.11. Delay or Omission Not Waiver...................................74
SECTION 5.12. Control by Holders.............................................74
SECTION 5.13. Waiver of Past Defaults........................................74
SECTION 5.14. Undertaking for Costs..........................................75
SECTION 5.15. Waiver of Stay or Extension Laws...............................75
ARTICLE VI
The Trustee
SECTION 6.01. Certain Duties and Responsibilities............................76
SECTION 6.02. Notice of Defaults.............................................77
SECTION 6.03. Certain Rights of Trustee......................................77
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.........79
SECTION 6.05. May Hold Securities............................................79
SECTION 6.06. Money Held in Trust............................................79
SECTION 6.07. Compensation and Reimbursement.................................79
SECTION 6.08. Disqualification; Conflicting Interests........................80
SECTION 6.09. Corporate Trustee Required; Eligibility........................81
</TABLE>
- ---------------
Note: This table of contents shall not, for any purpose, be deemed to be
part of the Indenture.
-viii-
<PAGE>
<TABLE>
<CAPTION>
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SECTION 6.10. Resignation and Removal; Appointment of Successor..............81
SECTION 6.11. Acceptance of Appointment by Successor.........................83
SECTION 6.12. Merger, Conversion, Consolidation or Succession
to Business..................................................83
SECTION 6.13. Preferential Collection of Claims Against Issuer
or Guarantor.................................................83
SECTION 6.14. Appointment of Authenticating Agent............................84
SECTION 6.15. Withholding Taxes..............................................86
ARTICLE VII
Holders' Lists and Reports by Trustee and Issuer
SECTION 7.01. Issuer to Furnish Trustee Names and Addresses of Holder........86
SECTION 7.02. Preservation of Information; Communications to Holders.........87
SECTION 7.03. Reports by Trustee.............................................87
SECTION 7.04. Reports by Issuer and Guarantor................................88
SECTION 7.05. Officers' Certificate with Respect to Change in
Interest Rates...............................................88
ARTICLE VIII
Merger, Consolidation, Etc.
SECTION 8.01. Mergers, Consolidations and Certain Sales of Assets............88
SECTION 8.02. Successor Substituted..........................................90
ARTICLE IX
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without Consent of Holders.............90
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SECTION 9.02. Supplemental Indentures with Consent of Holders................91
SECTION 9.03. Execution of Supplemental Indentures...........................92
SECTION 9.04. Effect of Supplemental Indentures..............................92
SECTION 9.05. Conformity with Trust Indenture Act............................92
SECTION 9.06. Reference in Securities to Supplemental Indentures.............93
ARTICLE X
Covenants
SECTION 10.01. Payment of Principal, Premium and Interest....................93
SECTION 10.02. Maintenance of Office or Agency...............................93
SECTION 10.03. Money for Security Payments To Be Held in Trust...............94
SECTION 10.04. Existence.....................................................95
SECTION 10.05. Maintenance of Properties.....................................96
SECTION 10.06. Payment of Taxes and Other Claims.............................96
SECTION 10.07. Maintenance of Insurance......................................96
SECTION 10.08. Limitation on Consolidated Debt...............................96
SECTION 10.09. Additional Amounts............................................99
SECTION 10.10. Limitation on Restricted Payments............................102
SECTION 10.11. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries.............104
SECTION 10.12. Limitation on Transactions with Affiliates and
Related Persons............................................105
SECTION 10.13. Limitation on Asset Dispositions.............................106
SECTION 10.14. Limitation on Issuances and Sales of Capital Stock
of Restricted Subsidiaries.................................108
SECTION 10.15. Limitation on Liens..........................................108
SECTION 10.16. Limitation on Issuance of Guarantees of Debt by
Restricted Subsidiaries....................................109
SECTION 10.17. Change of Control............................................110
SECTION 10.18. Provision of Financial Information...........................111
SECTION 10.19. Statement by Officers as to Default..........................112
SECTION 10.20. Waiver of Certain Covenants..................................112
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SECTION 10.21. Paying Agent.................................................113
ARTICLE XI
Redemption of Securities
SECTION 11.01. Right of Redemption..........................................113
SECTION 11.02. Applicability of Article.....................................114
SECTION 11.03. Election To Redeem; Notice to Trustee........................114
SECTION 11.04. Securities To Be Redeemed Pro Rata...........................115
SECTION 11.05. Notice of Redemption.........................................115
SECTION 11.06. Deposit of Redemption Price..................................116
SECTION 11.07. Securities Payable on Redemption Date........................116
SECTION 11.08. Securities Redeemed in Part..................................117
ARTICLE XII
Discharge of Indenture
SECTION 12.01. Termination of Issuer's Obligations..........................117
SECTION 12.02. Defeasance and Discharge of Indenture........................118
SECTION 12.03. Defeasance of Certain Obligations............................121
SECTION 12.04. Application of Trust Money...................................124
SECTION 12.05. Repayment to Issuer..........................................124
SECTION 12.06. Reinstatement................................................124
SECTION 12.07. Insiders.....................................................124
TESTIMONIUM..................................................................125
SIGNATURES AND SEALS.........................................................125
ANNEX A -- Form of Regulation S Certificate
ANNEX B -- Form of Restricted Securities Certificate
ANNEX C -- Form of Unrestricted Securities Certificate
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INDENTURE, dated as of May 13, 1999, between RSL COMMUNICATIONS PLC,
a United Kingdom corporation, as issuer (the "Issuer"), having its principal
office at Victoria House, London Square, Guilford, Surrey, England GU1 1UJ, RSL
COMMUNICATIONS, LTD., a Bermuda corporation, as guarantor (the "Guarantor"),
having its principal office at Clarendon House, Church Street, Hamilton HM CX,
Bermuda, and THE CHASE MANHATTAN BANK, a corporation duly organized and existing
under the laws of the State of New York, as Trustee (herein called the
"Trustee").
RECITALS OF THE ISSUER
The Issuer has duly authorized the creation of $175,000,000
aggregate principal amount at maturity of the Issuer's 9 7/8% Senior Notes due
2009 (the "Securities") of substantially the tenor and amount hereinafter set
forth, and to provide therefor the Issuer has duly authorized the execution and
delivery of this Indenture. The Securities may consist of Original Securities
and/or Exchange Securities, each as defined herein. The Original Securities and
the Exchange Securities shall rank pari passu with one another and shall
together constitute a single class of securities.
All things necessary (i) to make the Securities, when executed by
the Issuer and authenticated and delivered hereunder and duly issued by the
Issuer, the valid obligations of the Issuer, (ii) to make the Securities
Guarantee, when executed and delivered by the Guarantor hereunder, the valid
obligation of the Guarantor, and (iii) to make this Indenture a valid agreement
of the Issuer and the Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
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ARTICLE I
Definitions and Other Provisions
of General Application
SECTION 1.01. Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles (whether or not such is indicated herein) and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted as consistently applied by the Issuer or the Guarantor, as
applicable, at the date hereof; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Acquired Debt" means, with respect to any specified Person, (i)
Debt of any other Person existing at the time such Person merges with or into or
consolidates with or becomes a Subsidiary of such specified Person and (ii) Debt
secured by a Lien encumbering any asset acquired by such specified Person, which
Debt was not Incurred in anticipation of, and was outstanding prior to, such
merger, consolidation or acquisition.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.04.
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"Additional Amounts" has the meaning specified in Section 10.09.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control" when
used with respect to any Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent Member" means any member of, or participant in, the
Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, Euroclear and Cedel,
in each case to the extent applicable to such transaction and as in effect from
time to time.
"Asset Disposition" by any Person means any transfer, conveyance,
sale, lease or other disposition by such Person or any of its Subsidiaries
(including a consolidation or merger or other sale of any such Subsidiary with,
into or to another Person in a transaction in which such Subsidiary ceases to be
a Subsidiary of the specified Person, but excluding a disposition by a
Subsidiary of such Person to such Person or a Wholly Owned Subsidiary of such
Person or by such Person to a Wholly Owned Subsidiary of such Person or by a
Restricted Subsidiary to the Guarantor or a Restricted Subsidiary or by the
Guarantor to a Restricted Subsidiary) of (i) shares of Capital Stock or other
ownership interests of a Subsidiary of such Person; (ii) substantially all of
the assets of such Person or any of its Subsidiaries representing a division or
line of business (other than as part of a Permitted Investment); or (iii) other
assets or rights of such Person or any of its Subsidiaries outside of the
ordinary course of business, provided in the case of each of the preceding
clauses (i), (ii) and (iii) that the aggregate consideration for such transfer,
conveyance, sale, lease or other disposition is equal to $2.0 million or more in
any 12-month period.
"Average Life" means, at any date of determination with respect to
any Debt, the quotient obtained by dividing (i) the sum of the products of (a)
the number of years from
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such date of determination to the dates of each successive scheduled principal
payment of such Debt and (b) the amount of such principal payment by (ii) the
sum of all such principal payments.
"beneficial interest" means an indirect beneficial interest in a
Global Security held through a corresponding Depositary Interest and shown on,
and transferred only through, records maintained in book-entry form by the
Depositary (with respect to the Participants) and their Participants.
"Board of Directors" means either the board of directors of the
Guarantor or the Issuer, as applicable, or any duly authorized committee of that
board duly authorized to act with respect to this Indenture from time to time.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Guarantor or the Issuer, as
applicable, to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Book-Entry Depositary" means The Chase Manhattan Bank in its
capacity as book-entry depositary pursuant to the terms of the Deposit
Agreement, until a successor Book- Entry Depositary shall have become such
pursuant to the terms of the Deposit Agreement, and thereafter "Book-Entry
Depositary" shall mean such successor Book-Entry Depositary.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the Borough of
Manhattan, the City of New York, New York are authorized or obligated by law or
executive order to close.
"Capital Lease Obligation" of any Person means the obligation to pay
rent or other payment amounts under a lease of (or other Debt arrangements
conveying the right to use) real or personal property of such Person which is
required to be classified and accounted for as a capital lease or a liability on
the face of a balance sheet of such Person in accordance with generally accepted
accounting principles (a "Capital Lease"). The stated maturity of such
obligation shall be the date of the last payment of rent or any other amount due
under such lease prior to the first date upon which such lease may be terminated
by the lessee without payment of a penalty. The principal amount of such
obligation shall be the capitalized amount thereof that
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would appear on the face of a balance sheet of such Person in accordance with
generally accepted accounting principles.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
other equity participations, including partnership interests, whether general or
limited, of such Person.
"Cedel" means Cedel Bank, S.A. (or any successor securities
clearing agency).
"Change of Control" has the meaning specified in Section 10.17.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing or not
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Consolidated Cash Flow Available for Fixed Charges" for any period
means the Consolidated Net Income of the Guarantor and its Restricted
Subsidiaries for such period increased by the sum of (i) Consolidated Interest
Expense of the Guarantor and its Restricted Subsidiaries for such period, plus
(ii) Consolidated Income Tax Expense of the Guarantor and its Restricted
Subsidiaries for such period, plus (iii) the consolidated depreciation and
amortization expense included in the income statement of the Guarantor and its
Restricted Subsidiaries for such period, plus (iv) any noncash expense related
to the issuance to employees of the Guarantor or any Restricted Subsidiary of
the Guarantor of options to purchase Capital Stock of the Guarantor or such
Restricted Subsidiary, plus (v) any charge related to any premium or penalty
paid in connection with redeeming or retiring any Debt prior to its stated
maturity; provided, however, that there shall be excluded therefrom the
Consolidated Cash Flow Available for Fixed Charges (if positive) of any
Restricted Subsidiary of the Guarantor (calculated separately for such
Restricted Subsidiary in the
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same manner as provided above for the Guarantor) that is subject to a
restriction which prevents the payment of dividends or the making of
distributions to the Guarantor or another Restricted Subsidiary of the Guarantor
to the extent of such restriction.
"Consolidated Income Tax Expense" for any period means the aggregate
amounts of the provisions for income taxes of the Guarantor and its Restricted
Subsidiaries for such period calculated on a consolidated basis in accordance
with generally accepted accounting principles.
"Consolidated Interest Expense" means for any period the interest
expense included in a consolidated income statement (excluding interest income)
of the Guarantor and its Restricted Subsidiaries for such period in accordance
with generally accepted accounting principles, including without limitation or
duplication (or, to the extent not so included, with the addition of), (i) the
amortization of Debt discounts; (ii) any payments or fees with respect to
letters of credit, bankers' acceptances or similar facilities; (iii) fees with
respect to interest rate swap or similar agreements or foreign currency hedge,
exchange or similar agreements; (iv) Preferred Stock dividends of the Guarantor
and its Restricted Subsidiaries (other than dividends paid in shares of
Preferred Stock that is not Disqualified Stock) declared and paid or payable;
(v) accrued Disqualified Stock dividends of the Guarantor and its Restricted
Subsidiaries, whether or not declared or paid; (vi) interest on Debt guaranteed
by the Guarantor and its Restricted Subsidiaries (but only to the extent such
interest is actually paid by the Guarantor or a Restricted Subsidiary); and
(vii) the portion of any Capital Lease Obligation paid during such period that
is allocable to interest expense; excluding, however, any premiums, fees and
expenses (and any amortization thereof) payable in connection with the offerings
of the Securities; all of the foregoing as determined on a consolidated basis
(without taking into account Unrestricted Subsidiaries) in conformity with
generally accepted accounting principles.
"Consolidated Net Income" for any period means the net income (or
loss) of the Guarantor and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with generally accepted
accounting principles; provided that there shall be excluded therefrom (a) the
net income (or loss) of any Person acquired by the Guarantor or a Restricted
Subsidiary of the Guarantor in a pooling-of-interests transaction for any period
prior to the date of such transaction, (b) the net income (or loss) of
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any Person that is not a Restricted Subsidiary of the Guarantor except to the
extent of the amount of dividends or other distributions actually paid to the
Guarantor or a Restricted Subsidiary of the Guarantor by such Person during such
period, (c) gains or losses on Asset Dispositions by the Guarantor or its
Restricted Subsidiaries, (d) all extraordinary gains and extraordinary losses,
determined in accordance with generally accepted accounting principles, (e) the
cumulative effect of changes in accounting principles, (f) noncash gains or
losses resulting from fluctuations in currency exchange rates and (g) the tax
effect of any of the items described in clauses (a) through (f) above.
"Consolidated Net Worth" of any Person means the stockholders'
equity of such Person, determined on a consolidated basis in accordance with
generally accepted accounting principles, less amounts attributable to
Disqualified Stock of such Person.
"Consolidated Tangible Assets" of any Person means the total amount
of assets (less applicable reserves and other properly deductible items) which
under generally accepted accounting principles would be included on a
consolidated balance sheet of such Person and its Subsidiaries after deducting
therefrom all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangibles, which in each case under
generally accepted accounting principles would be included on such consolidated
balance sheet.
"Corporate Trust Office" means the principal office of the Trustee
in the Borough of Manhattan, The City of New York, New York, at which at any
particular time its corporate trust business shall be administered, which at the
date hereof is located at 450 West 33rd Street, New York, NY 10001-2697.
"corporation" means a corporation, association, company, limited
liability company, joint-stock company or business trust.
"Credit Facility" means credit agreements, vendor financings or
other facilities or arrangements made available from time to time to the
Guarantor and its Restricted Subsidiaries by banks, other financial institutions
and/or equipment manufacturers for the Incurrence of Debt, including the private
or public issuance of debt securities or the provision of letters of credit and
any related notes, Guarantees, collateral documents,
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instruments and agreements executed in connection therewith, as the same may be
amended, supplemented, modified or restated from time to time.
"Debt" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person and whether
or not contingent, the amount of (i) every obligation of such Person for money
borrowed, (ii) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations Incurred in connection
with the acquisition of property, assets or businesses, (iii) every
reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
Person, (iv) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (including securities repurchase
agreements but excluding trade accounts payable or accrued liabilities arising
in the ordinary course of business which are not overdue or which are being
contested in good faith), (v) every Capital Lease Obligation of such Person,
(vi) all Receivables Sales of such Person, together with any obligation of such
Person to pay any discount, interest, fees, indemnities, penalties, recourse,
expenses or other amounts in connection therewith, (vii) all obligations to
redeem Disqualified Stock issued by such Person, (viii) every obligation under
Interest Rate and Currency Protection Agreements of such Person and (ix) every
obligation of the type referred to in clauses (i) through (viii) of another
Person and all dividends of another Person the payment of which, in either case,
such Person has Guaranteed to the extent the same is Guaranteed by such Person.
The "amount" or "principal amount" of Debt at any time of determination as used
herein represented by (a) any Debt issued at a price that is less than the
principal amount at maturity thereof, shall be the amount of the liability in
respect thereof determined in accordance with generally accepted accounting
principles, (b) any Receivables Sale shall be the amount of the unrecovered
capital or principal investment of the purchaser (other than the Guarantor or a
Wholly Owned Restricted Subsidiary of the Guarantor) thereof to the extent such
Person is liable therefor, excluding amounts representative of yield or interest
earned on such investment or (c) any Disqualified Stock shall be the maximum
fixed redemption or repurchase price in respect thereof.
"Defaulted Interest" has the meaning specified in Section 3.07.
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"Definitive Security" means a certificated Security registered in
the name of the Holder thereof and issued in accordance with Section 3.05(d)
hereof.
"Deposit Agreement" means the Note Deposit Agreement, dated as of
the date hereof, between the Issuer and The Chase Manhattan Bank, as Book-Entry
Depositary with respect to the Global Securities, as amended from time to time
in accordance with the terms thereof.
"Depositary" means, with respect to the Securities issuable or
issued in whole or in part in the form of one or more Global Securities, The
Depository Trust Company for so long as it shall be a clearing agency registered
under the Exchange Act, or such successor as the Issuer shall designate from
time to time in an Officers' Certificate delivered to the Trustee.
"Depositary Interest" means a certificateless depositary interest
representing a 100% beneficial interest in a Global Security.
"Disqualified Stock" of any Person means any Capital Stock of such
Person which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of such Person, any
Subsidiary of such Person or the holder thereof, in whole or in part, on or
prior to the final Stated Maturity of the Securities; provided, however, that
any Preferred Stock which would not constitute Disqualified Stock but for
provisions thereof giving holders thereof the right to require such Person to
repurchase or redeem such Preferred Stock upon the occurrence of a Change of
Control occurring prior to the final maturity of the Securities shall not
constitute Disqualified Stock if the change of control provisions applicable to
such Preferred Stock are no more favorable to the holders of such Preferred
Stock than the provisions applicable to the Securities contained in Section
10.17 and such Preferred Stock specifically provides that such Person will not
repurchase or redeem any such stock pursuant to such provisions prior to such
Person's repurchase of such Securities as are required to be repurchased
pursuant to Section 10.17.
"Eligible Institution" means a commercial banking institution that
has combined capital and surplus of not less than $500 million or its equivalent
in foreign currency, whose debt is rated "A" (or higher) according to
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Standard & Poor's Ratings Service or Moody's Investors Service, Inc. at the
time as of which any investment or rollover therein is made.
"Euroclear" means the Euroclear Clearance System
(or any successor securities clearing agency).
"Event of Default" has the meaning set forth in
Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
(or any successor act), and the rules and regulations thereunder.
"Exchange and Registration Rights Agreement" means the Exchange and
Registration Rights Agreement, dated as of May 13, 1999 among the Issuer, the
Guarantor and the Initial Purchaser and the Holders from time to time as
provided therein, as such agreement may be amended from time to time.
"Exchange Offer" has the meaning set forth in the
form of the Securities contained in Section 2.02.
"Exchange Offer Registration Statement" has the meaning set forth in
the form of the Securities contained in Section 2.02.
"Exchange Security" means any Security issued in exchange for an
Original Security or Original Securities pursuant to the Exchange Offer or
otherwise registered under the Securities Act and any Security with respect to
which the next preceding Predecessor Security of such Security was an Exchange
Security.
"Existing Stockholders" means (A) R.S. Lauder, Gaspar & Co., L.P.,
("LGC"), (B) partners in LGC and Lauder Gaspar Ventures LLC and their
Affiliates, in each case as of the Closing Date, (C) Itzhak Fisher, Ronald S.
Lauder, Leonard Lauder, Jacob Z. Schuster, Nir Tarlovsky, Nesim N. Bildirici,
Andrew Gaspar and Eugene Sekulow, (D) family members of any of the foregoing,
(E) trusts, the only beneficiaries of which are persons or entities described in
clauses (A) through (D) above and (F) partnerships which are controlled by the
persons or entities described in clauses (A) through (D) above.
"Expiration Date" has the meaning specified in the
definition of "Offer to Purchase".
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"Global Security" means the security or securities issued initially
in bearer form that evidences all or part of the Securities and bears the legend
set forth in Section 2.02.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States is pledged and
which have a remaining weighted average life to maturity of not less than one
year from the date of Investment therein.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing, or having the economic effect of
guaranteeing, any Debt of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, and including, without limitation, any
obligation of such Person, (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Debt or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such Debt,
(ii) to purchase property, securities or services for the purpose of assuring
the holder of such Debt of the payment of such Debt, or (iii) to maintain
working capital, equity capital or other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Debt (and "Guaranteed" and "Guaranteeing" shall have meanings correlative to the
foregoing); provided, however, that the Guarantee by any Person shall not
include endorsements by such Person for collection or deposit, in either case,
in the ordinary course of business.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor Person shall have become such
Person pursuant to the applicable provisions of this Indenture and thereafter
"Guarantor" shall mean such successor Person.
"Holder" means a Person (i) who is the bearer of a Global Security
(which shall initially be the Book-Entry Depositary) or (ii) in whose name a
Definitive Security is registered in the Security Register.
"Incremental Paid-in Capital" means as of any date the cumulative
aggregate amount of the increase in paid-in capital (determined in accordance
with generally accepted accounting principles applied on a consistent basis)
since September 30, 1997, as determined based on the most recent unaudited
quarterly or audited annual financial statements
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of the Guarantor and its consolidated subsidiaries filed with the Commission, as
compared with the Guarantor's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1997.
"Incur" means, with respect to any Debt or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
enter into a Guarantee in respect of or otherwise become liable in respect of
such Debt or other obligation including by acquisition of Subsidiaries or the
recording, as required pursuant to generally accepted accounting principles or
otherwise, of any such Debt or other obligation on the balance sheet of such
Person (and "Incurrence", "Incurred", "Incurrable" and "Incurring" shall have
meanings correlative to the foregoing); provided, however, that a change in
generally accepted accounting principles that results in an obligation of such
Person that exists at such time becoming Debt shall not be deemed an Incurrence
of such Debt and that neither the accrual of interest nor the accretion of
original issue discount shall be deemed an Incurrence of Debt.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Indirect Participant" means a Person who holds an interest through
a Participant in a Depositary Interest issued by the Book-Entry Depositary to
the Depositary.
"Initial Purchaser" means Goldman, Sachs & Co.
"Interest Payment Date" means the Stated Maturity
of an installment of interest on the Securities.
"Interest Rate or Currency Protection Agreement" of any Person means
any forward contract, futures contract, swap, option or other financial
agreement or arrangement (including, without limitation, caps, floors, collars
and similar agreements) relating to, or the value of which is dependent upon,
interest rates or currency exchange rates or indices.
"Investment" by any Person means any direct or indirect loan,
advance or other extension of credit or capital contribution (by means of
transfers of cash or other property to others or payments for property or
services for the account or use of others, or otherwise), to, or purchase
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or acquisition of Capital Stock, bonds, notes, debentures or other securities or
evidence of Debt issued by, any other Person, including any payment on a
Guarantee of any obligation of such other Person, but excluding any loan,
advance or extension of credit to an employee of the Guarantor or any of its
Subsidiaries in the ordinary course of business and commercially reasonable
extensions of trade credit. Without limiting the foregoing, the term
"Investment" shall include (i) the designation of a Restricted Subsidiary as an
Unrestricted Subsidiary and (ii) the fair market value of the Capital Stock (or
any other Investment), held by the Guarantor or any of its Restricted
Subsidiaries, of (or in) any Person that has ceased to be a Restricted
Subsidiary. For purposes of the definition of "Unrestricted Subsidiary" and
Section 10.10, (i) "Investment" shall include the fair market value of the
assets (net of liabilities (other than liabilities to the Guarantor or any of
its Restricted Subsidiaries)) of any Restricted Subsidiary at the time that such
Restricted Subsidiary is designated an Unrestricted Subsidiary, (ii) the fair
market value of the assets (net of liabilities (other than liabilities to the
Guarantor or any of its Restricted Subsidiaries)) of any Unrestricted Subsidiary
at the time that such Unrestricted Subsidiary is designated a Restricted
Subsidiary shall be considered a reduction in outstanding Investments and (iii)
any property transferred to or from an Unrestricted Subsidiary shall be valued
at its fair market value at the time of such transfer. Notwithstanding the
foregoing, an acquisition of assets (including, without limitation, Capital
Stock or rights to acquire Capital Stock) by the Guarantor or any of its
Restricted Subsidiaries shall be deemed not to be an Investment to the extent
that the consideration therefor consists of Common Stock of the Guarantor.
"Issuer" means the Person named as the "Issuer" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture and thereafter "Issuer"
shall mean such successor Person.
"Issuer Request" or "Issuer Order" means a written request or order
signed in the name of the Issuer by the Issuer's Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Lien" means, with respect to any property or
assets, any mortgage or deed of trust, pledge,
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hypothecation, assignment, Receivables Sale, deposit arrangement, security
interest, lien, charge, easement (other than any easement not materially
impairing usefulness), encumbrance, preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever on or
with respect to such property or assets (including, without limitation, any
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing).
"Listing Failure" has the meaning specified in Section 10.09.
"Marketable Securities" means: (i) Government Securities; (ii) any
certificate of deposit maturing not more than 270 days after the date of
acquisition issued by, or time deposit of, an Eligible Institution; (iii)
commercial paper maturing not more than 270 days after the date of acquisition
issued by a corporation (other than an Affiliate of the Guarantor) with a
rating, at the time as of which any investment therein is made, of "A-1" (or
higher) according to Standard & Poor's Ratings Service or "P-1" (or higher)
according to Moody's Investor Service, Inc.; (iv) any banker's acceptances or
money market deposit accounts issued or offered by an Eligible Institution; (v)
time deposits, certificates of deposit, bank promissory notes and bankers'
acceptances maturing not more than 180 days after the acquisition thereof and
guaranteed or issued by any of the ten largest banks (based on assets as of the
immediately preceding December 31), organized under the laws of any jurisdiction
in which one of the Restricted Subsidiaries does business or any foreign country
recognized by the United States and which are not under intervention, bankruptcy
or similar proceeding, not to exceed $10 million outstanding at any one term;
and (vi) any fund investing exclusively in investments of the types described in
clauses (i) through (iv) above.
"Maturity", when used with respect to any Security, means the date
on which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Net Available Proceeds" from any Asset Disposition by any Person
means cash or readily marketable cash equivalents received (including amounts
received by way of sale or discounting of any note, installment receivable or
other receivable, but excluding any other consideration received in the form of
assumption by the acquiror of Debt
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or other obligations relating to such properties or assets) therefrom by such
Person, net of (i) all legal, title and recording tax expenses, commissions and
other fees and expenses Incurred and all Federal, state, provincial, foreign and
local taxes required to be accrued as a liability as a consequence of such Asset
Disposition, (ii) all payments made by such Person or its Subsidiaries on any
Debt which is secured by such assets in accordance with the terms of any Lien
upon or with respect to such assets or which must by the terms of such Lien, or
in order to obtain a necessary consent to such Asset Disposition or by
applicable law, be repaid out of the proceeds from such Asset Disposition, (iii)
all distributions and other payments made to minority interest holders in
Subsidiaries of such Person as a result of such Asset Disposition and (iv)
appropriate amounts to be provided by such Person or any Subsidiary thereof, as
the case may be, as a reserve in accordance with generally accepted accounting
principles against any liabilities associated with such assets and retained by
such Person or any Subsidiary thereof, as the case may be, after such Asset
Disposition, including, without limitation, liabilities under any
indemnification obligations and severance and other employee termination costs
associated with such Asset Disposition, in each case as determined by the board
of directors of such Person, in its reasonable good faith judgment; provided,
however, that any reduction in such reserve within 12 months following the
consummation of such Asset Disposition will be treated for all purposes of the
Indenture and the Securities as a new Asset Disposition at the time of such
reduction with Net Available Proceeds equal to the amount of such reduction.
"Offer to Purchase" means a written offer (the "Offer") sent by or
on behalf of the Issuer by first class mail, postage prepaid, to each Holder of
Securities at his address appearing in the related Security Register on the date
of the Offer offering to purchase up to the principal amount of Securities
specified in such Offer at the purchase price specified in such Offer (as
determined pursuant to this Indenture). Unless otherwise required by applicable
law, the Offer shall specify an expiration date (the "Expiration Date") of the
Offer to Purchase which shall be, subject to any contrary requirements of
applicable law, not less than 30 days or more than 60 days after the date of
such Offer and a settlement date (the "Purchase Date") for purchase of
Securities within five Business Days after the Expiration Date. The Issuer shall
notify in writing the Trustee at least 15 Business Days (or such shorter period
as is acceptable to the Trustee) prior to the mailing of the Offer of the
Issuer's obligation to make an Offer to
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Purchase, and the Offer shall be mailed by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer. The Offer
shall contain information concerning the business of the Guarantor and its
Subsidiaries which the Guarantor and Issuer in good faith believe will enable
such Holders to make an informed decision with respect to the Offer to Purchase
(which at a minimum will include (i) the most recent annual and quarterly
financial statements and "Management's Discussion and Analysis of Financial
Condition and Results of Operations" contained in the documents required to be
filed with the Trustee pursuant to this Indenture (which requirements may be
satisfied by delivery of such documents together with the Offer), (ii) a
description of material developments in the Guarantor's business subsequent to
the date of the latest of such financial statements referred to in clause (i)
(including a description of the events requiring the Issuer to make the Offer to
Purchase), (iii) if applicable, appropriate pro forma financial information
concerning the Offer to Purchase and the events requiring the Issuer to make the
Offer to Purchase and (iv) any other information required by applicable law to
be included therein). The Offer shall contain all instructions and materials
necessary to enable such Holders to tender Securities pursuant to the Offer to
Purchase. The Offer shall also state:
(a) the Section of this Indenture pursuant to which the Offer to
Purchase is being made;
(b) the Expiration Date and the Purchase Date;
(c) the aggregate principal amount at maturity of the Outstanding
Securities offered to be purchased by the Issuer pursuant to the Offer to
Purchase (including, if less than 100%, the manner by which such has been
determined pursuant to the Section hereof requiring the Offer to Purchase)
(the "Purchase Amount");
(d) the purchase price to be paid by the Issuer for each $1,000
aggregate principal amount at maturity of Securities accepted for payment
(as specified pursuant to the Indenture) (the "Purchase Price");
(e) that the Holder may tender all or any portion of the Securities
registered in the name of such Holder and that any portion of a Security
tendered must be tendered in an integral multiple of $1,000 principal
amount at maturity;
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(f) the place or places where Securities are to be surrendered for
tender pursuant to the Offer to Purchase;
(g) that interest on any Security not tendered or tendered but not
purchased by the Issuer pursuant to the Offer to Purchase will continue to
accrue;
(h) that on the Purchase Date the Purchase Price will become due and
payable upon each Security being accepted for payment pursuant to the
Offer to Purchase and that interest thereon shall cease to accrue on and
after the Purchase Date;
(i) that each Holder electing to tender a Security pursuant to the
Offer to Purchase will be required to surrender such Security at the place
or places specified in the Offer prior to the close of business on the
Expiration Date (such Security being, if the Issuer or the Trustee so
requires, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Issuer and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing);
(j) that Holders will be entitled to withdraw all or any portion of
Securities tendered if the Issuer (or their Paying Agent) receives, not
later than the close of business on the Expiration Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount at maturity of the Security the Holder
tendered, the certificate number of the Security the Holder tendered and a
statement that such Holder is withdrawing all or a portion of his tender;
(k) that (a) if Securities in an aggregate principal amount at
maturity less than or equal to the Purchase Amount are duly tendered and
not withdrawn pursuant to the Offer to Purchase, the Issuer shall purchase
all such Securities and (b) if Securities in an aggregate principal amount
at maturity in excess of the Purchase Amount are tendered and not
withdrawn pursuant to the Offer to Purchase, the Issuer shall purchase
Securities having an aggregate principal amount at maturity equal to the
Purchase Amount on a pro rata basis (with such adjustments as may be
deemed appropriate so that only Securities in denominations of $1,000 or
integral multiples thereof shall be purchased); and
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(l) that in the case of any Holder whose Security is purchased only
in part, the Issuer shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by
such Holder, in an aggregate principal amount at maturity equal to and in
exchange for the unpurchased portion of the Security so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with the
Offer for such Offer to Purchase.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, a Vice Chairman of the Board, the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Guarantor or the Issuer, as applicable, and delivered to the
Trustee and containing the statements provided for in Section 1.02. One of the
officers signing an Officers' Certificate given pursuant to Section 10.19 shall
be the principal executive, financial or accounting officer of the Guarantor.
"Opinion of Counsel" means a written opinion of legal counsel, who
may be counsel for the Guarantor or the Issuer, and who shall be acceptable to
the Trustee, and containing the statements provided for in Section 1.02.
"Original Securities" means all Securities that are subject to an
Exchange and Registration Rights Agreement, other than Exchange Securities
issued in exchange therefore.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancelation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Issuer) in trust or set aside and segregated
in trust by the Issuer (if the Issuer shall act as its own Paying Agent)
for the Holders of such Securities; provided that, if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant
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to this Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities which have been paid pursuant to Section 3.06 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Issuer; and
(iv) Securities held by the Issuer, the Guarantor or any of their
respective Affiliates for purposes of determining the amount of Securities
that remain Outstanding after a redemption pursuant to Section 11.01(a)
and the related provision in such Securities;
provided, however, that in determining whether the Holders of the requisite
principal amount at maturity of the Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Issuer or any other obligor upon the Securities or any
Affiliate of the Issuer or of such other obligor shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Issuer or any other obligor upon the
Securities or any Affiliate of the Issuer or of such other obligor.
"Participant" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively (and, with respect to the Depositary, shall include Euroclear and
Cedel).
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Issuer.
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"Permitted Interest Rate or Currency Protection Agreement" of any
Person means any Interest Rate or Currency Protection Agreement entered into
with one or more financial institutions in the ordinary course of business that
is designed to protect such Person against fluctuations in interest rates or
currency exchange rates with respect to Debt Incurred and which shall have a
notional amount no greater than the payments due with respect to the Debt being
hedged thereby and not for purposes of speculation.
"Permitted Investment" means (i) any Investment in the Guarantor or
a Restricted Subsidiary, (ii) any Investment in any Person as a result of which
such Person becomes a Restricted Subsidiary of the Guarantor or upon the making
of which such Person will be merged or consolidated with or into or transfer all
or substantially all of its assets to the Guarantor or a Restricted Subsidiary,
(iii) any Investment in Marketable Securities, (iv) securities or other
Investments received in settlement of debts created in the ordinary course of
business and owing to the Guarantor or any Restricted Subsidiary, or as a result
of foreclosure, perfection or enforcement of any Lien, or in satisfaction of
judgments, including in connection with any bankruptcy proceeding or other
reorganization of another Person, (v) securities or other Investments received
as consideration in sales or other dispositions of property or assets, including
Asset Dispositions made in compliance with Section 10.13 and (vi) other
Investments not in excess of $50 million in the aggregate at any time
outstanding.
"Permitted Liens" means (a) Liens for taxes, assessments,
governmental charges or claims which are not yet delinquent or which are being
contested in good faith by appropriate proceedings, if a reserve or other
appropriate provision, if any, as shall be required in conformity with generally
accepted accounting principles shall have been made therefor; (b) other Liens
incidental to the conduct of the Guarantor's and its Restricted Subsidiaries'
business or the ownership of its property and assets not securing any Debt, and
which do not in the aggregate materially detract from the value of the
Guarantor's and its Restricted Subsidiaries' property or assets when taken as a
whole, or materially impair the use of such assets and property in the operation
of its business; (c) Liens with respect to assets of a Subsidiary granted by
such Subsidiary to the Guarantor to secure Debt owing to the Guarantor; (d)
pledges and deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of statutory
obligations;
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(e) deposits made to secure the performance of tenders, bids, leases, and other
obligations of like nature incurred in the ordinary course of business
(exclusive of obligations for the payment of borrowed money); (f) zoning
restrictions, servitudes, easements, rights-of-way, restrictions and other
similar charges or encumbrances incurred in the ordinary course of business
which, in the aggregate, do not materially detract from the value of the
property subject thereto or interfere with the ordinary conduct of the business
of the Guarantor or its Restricted Subsidiaries; (g) Liens on Capital Stock of
Restricted Subsidiaries securing obligations not exceeding $75 million at any
time outstanding of the Guarantor or any Restricted Subsidiary to repurchase or
redeem shares of Capital Stock of such Restricted Subsidiary held by Persons who
are not Affiliates or Related Persons of the Guarantor; (h) Liens arising out of
judgments or awards against the Guarantor or any Restricted Subsidiary with
respect to which the Guarantor or such Restricted Subsidiary is prosecuting an
appeal or proceeding for review and the Guarantor or such Restricted Subsidiary
is maintaining adequate reserves in accordance with generally accepted
accounting principles; and (i) any interest or title of a lessor in the property
subject to any lease other than a Capital Lease.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization,
government or agency or political subdivision thereof or any other entity.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.06 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Purchase Agreement" means the Purchase Agreement, dated May 6,
1999, between the Issuer, the Guarantor and the Initial Purchaser, as such
agreement may be amended from time to time.
"Purchase Money Debt" means Debt of the Guarantor (including
Acquired Debt and Debt represented by Capital Lease Obligations, mortgage
financings and purchase money obligations) incurred for the purpose of financing
all or any part of the cost of construction, acquisition or improvement by the
Guarantor or any Restricted Subsidiary of
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the Guarantor of any Telecommunications Assets of the Guarantor or any
Restricted Subsidiary of the Guarantor, and including any related notes,
Guarantees, collateral documents, instruments and agreements executed in
connection therewith, as the same may be amended, supplemented, modified or
restated from time to time.
"Readily marketable cash equivalents" means (i) marketable
securities issued or directly and unconditionally guaranteed by the United
States Government or issued by any agency thereof and backed by the full faith
and credit of the United States; (ii) marketable direct obligations issued by
any state of the United States of America or any political subdivision of any
such state or any public instrumentality thereof and, at the time of
acquisition, having the highest rating obtainable from either Standard & Poor's
Rating Service or Moody's Investors Service, Inc.; (iii) commercial paper
maturing no more than 180 days from the date of acquisition thereof and, at the
time of acquisition, having a rating of at least A-1 from Standard & Poor's
Ratings Service or at least P-1 from Moody's Investors Service, Inc.; and (iv)
certificates of deposit or bankers' acceptance maturing within one year from the
date of acquisition thereof issued by any commercial bank organized under the
laws of the United States of America or any state thereof or the District of
Columbia having unimpaired capital and surplus of not less than $100,000,000.
"Receivables" means receivables, chattel paper, instruments,
documents or intangibles evidencing or relating to the right to payment of
money.
"Receivables Sale" of any Person means any sale of Receivables of
such Person (pursuant to a purchase facility or otherwise), other than in
connection with a disposition of the business operations of such Person relating
thereto or a disposition of defaulted Receivables for purpose of collection and
not as a financing arrangement.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Securities" means Exchange Securities and all other
Securities sold or otherwise disposed of
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pursuant to an effective registration statement under the Securities Act,
together with any respective Successor Securities.
"Regular Record Date" for the interest payable on any Interest
Payment Date means May 1 and November 1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Regulation S Certificate" means a certificate substantially in the
form set forth in Annex A.
"Regulation S Global Security" has the meaning specified in
Section 2.01.
"Regulation S Legend" means a legend substantially in the form of
the legend required in the form of Security set forth in Section 2.02 to be
placed upon each Regulation S Security.
"Regulation S Securities" means all Securities sold pursuant to
Regulation S, which are required pursuant to Section 3.05(c) to bear a
Regulation S Legend. Such term includes the Regulation S Global Security.
"Related Person" of any Person means any other Person directly or
indirectly owning (a) 5% or more of the outstanding Common Stock of such Person
(or, in the case of a Person that is not a corporation, 5% or more of the
outstanding equity interest in such Person) or (b) 5% or more of the combined
outstanding voting power of the Voting Stock of such Person, except that, for
purposes of Section 10.12, Related Person means any other Person directly or
indirectly owning 10% or more of the combined outstanding voting power of the
Voting Stock of such Person (or, in the case of a Person that is not a
corporation, 10% or more of the outstanding equity interest in such Person).
"Resale Registration Statement" has the meaning set forth in the
Form of the Securities contained in Section 2.02.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
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of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Global Security" has the meaning specified in
Section 2.01.
"Restricted Period" means the period of 41 consecutive days
beginning on and including the later of (i) the day on which Securities are
first offered to persons other than distributors (as defined in Regulation S) in
reliance on Regulation S and (ii) the original issuance date of the Securities.
"Restricted Securities" means all Securities required pursuant to
Section 3.05(c) to bear any Restricted Securities Legend. Such term includes any
Restricted Global Security.
"Restricted Securities Certificate" means a certificate
substantially in the form set forth in Annex B.
"Restricted Securities Legend" means, collectively, the legends
substantially in the forms of the legends required in the form of Security set
forth in Section 2.02 to be placed upon each Restricted Security.
"Restricted Subsidiary" means any Subsidiary of the Guarantor other
than an Unrestricted Subsidiary.
"RSLNA" has the meaning specified in Section 1.14.
"Rule 144A" means Rule 144A under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Rule 144A Securities" means all Securities sold pursuant to Rule
144A, which are required pursuant to Section 3.05(c) to bear a Restricted
Securities Legend. Such term includes the Restricted Global Security.
"Securities" has the meaning specified in the first paragraph of
the recitals to this instrument.
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"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Securities Act Legend" means a Restricted Securities Legend or a
Regulation S Legend.
"Securities Guarantee" means the Securities Guarantee issued by the
Guarantor in accordance with Article IV hereunder.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05.
"Significant Subsidiary" means, at any date of determination, any
Restricted Subsidiary that, together with its Subsidiaries, (i) for the most
recent fiscal year of the Guarantor, accounted for more than 10% of the
consolidated revenues of the Guarantor and its Restricted Subsidiaries or (ii)
as of the end of such fiscal year, was the owner of more than 10% of the
consolidated assets of the Guarantor and its Restricted Subsidiaries, all as set
forth on the most recently available consolidated financial statements of the
Guarantor for such fiscal year.
"Special Interest" has the meaning set forth in the form of Security
contained in Section 2.02. Unless the context otherwise requires, references
herein to "interest" on the Securities shall include Special Interest.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Step-Down Date" has the meaning set forth in the form of the
Security contained in Section 2.02.
"Step-Up" has the meaning set forth in the form of the Security
contained in Section 2.02.
"Strategic Investor" means a corporation, partnership or other
entity engaged in the Telecommunications Business that has, or 80% or more of
the Voting Stock of which is owned by a Person that has, an
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equity market capitalization or paid in capital, at the time of any Investment
by such corporation, partnership or other entity in a Restricted Subsidiary
pursuant to clause (iv)(2) of Section 10.14, in excess of $100 million.
"Subordinated Debt" means Debt of the Guarantor or any Restricted
Subsidiary as to which the payment of principal of (and premium, if any) and
interest and other payment obligations in respect of such Debt shall be
subordinate to the prior payment in full of the Securities to at least the
following extent: (i) no payments of principal of (or premium, if any) or
interest on or otherwise due in respect of such Debt may be permitted for so
long as any default in the payment of principal (or premium, if any) or interest
on the Securities exists; (ii) in the event that any other default that with the
passing of time or the giving of notice, or both, would constitute an event of
default exists with respect to the Securities, upon written notice by 25% or
more in principal amount at maturity of the Securities to the Trustee, the
Trustee shall have the right to give notice to the Guarantor or such Restricted
Subsidiary and the holders of such Debt (or trustees or agents therefor) of a
payment blockage, and thereafter no payments of principal of (or premium, if
any) or interest on or otherwise due in respect of such Debt may be made for a
period of 179 days from the date of such notice; and (iii) such Debt may not (x)
provide for payments of principal of such Debt at the stated maturity thereof or
by way of a sinking fund applicable thereto or by way of any mandatory
redemption, defeasance, retirement or repurchase thereof by the Guarantor or
such Restricted Subsidiary (including any redemption, retirement or repurchase
which is contingent upon events or circumstances, but excluding any retirement
required by virtue of acceleration of such Debt upon an event of default
thereunder), in each case prior to the final Stated Maturity of the Securities
or (y) permit redemption or other retirement (including pursuant to an offer to
purchase made by the Guarantor or such Restricted Subsidiary) of such other Debt
at the option of the holder thereof prior to the final Stated Maturity of the
Securities, other than a redemption or other retirement at the option of the
holder of such Debt (including pursuant to an offer to purchase made by the
Guarantor or such Restricted Subsidiary) which is conditioned upon a change of
control of the Guarantor pursuant to provisions substantially similar to those
described under Section 10.17 (and which shall provide that such Debt will not
be repurchased pursuant to such provisions prior to the Guarantor's or such
Restricted Subsidiary's repurchase of
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the Securities required to be repurchased pursuant to the provisions described
under Section 10.17).
"Subsidiary" of any Person means (i) a corporation more than 50% of
the combined voting power of the outstanding Voting Stock, of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Subsidiaries thereof or (ii) any
other Person (other than a corporation) in which such Person, or one or more
other Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has at least a majority ownership
and power to direct the policies, management and affairs thereof. An 80% or more
owned Subsidiary of the Guarantor is (i) a corporation 80% or more of the
combined voting power of the outstanding Voting Stock, and more than 80% of the
Capital Stock or other ownership interests, of which is owned, directly or
indirectly, by the Guarantor or by one or more other Subsidiaries of the
Guarantor or by the Guarantor and one or more Subsidiaries thereof or (ii) any
other Person (other than a corporation) in which the Guarantor, or one or more
other Subsidiaries of the Guarantor or the Guarantor and one or more other
Subsidiaries of the Guarantor, directly or indirectly, has at least an 80%
ownership interest and power to direct the policies, management and affairs
thereof.
"Subsidiary Guarantor" means a Subsidiary of the Guarantor that has
unconditionally guaranteed, by supplemental indenture substantially similar in
form to Article IV hereof and otherwise satisfactory to the Trustee, the payment
in full of the principal of (and premium, if any) and interest on the
Securities.
"Substitute Securities" has the meaning specified in Section 3.01.
"Successor Security" of any particular Security means every Security
issued after, and evidencing all or a portion of the same debt as that evidenced
by, such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.06 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Tax" means any tax, duty, levy, impost, assessment or other
governmental charge (including
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penalties, interest and any other liabilities related thereto).
"Taxing Authority" means any government or political subdivision or
territory or possession of any government or any authority or agency therein or
thereof having power to tax.
"Telecommunications Assets" means all assets, rights (contractual or
otherwise) and properties, whether tangible or intangible, used or intended for
use in connection with a Telecommunications Business, including a majority of
the Voting Stock of a Person engaged in the Telecommunications Business.
"Telecommunications Business" means the business of (i)
transmitting, or providing services relating to the transmission of, voice,
video or data through owned or leased transmission facilities, (ii) creating,
developing or marketing communications related network equipment, software and
other devices for use in a Telecommunications Business or (iii) evaluating,
participating or pursuing any other activity or opportunity that is primarily
related to those identified in (i) or (ii) above; provided that the
determination of what constitutes a Telecommunications Business shall be made in
good faith by the Board of Directors of the Guarantor.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Unrestricted Securities Certificate" means a certificate
substantially in the form set forth in Annex C.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Guarantor
that at the time of determination shall be designated an Unrestricted Subsidiary
of the Guarantor by the Board of Directors in the manner provided below and (ii)
any Subsidiary of an Unrestricted Subsidiary. The
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Board of Directors may designate any Restricted Subsidiary (including any newly
acquired or newly formed Subsidiary of the Guarantor) to be an Unrestricted
Subsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds
any Lien on any property of, the Guarantor or any Restricted Subsidiary;
provided that (A) any Guarantee by the Guarantor or any Restricted Subsidiary of
any Debt of the Subsidiary being so designated shall be deemed an "Incurrence"
of such Debt and an "Investment" by the Guarantor or such Restricted Subsidiary
(or both, if applicable) at the time of such designation, in each case, to the
extent such Debt is so Guaranteed by the Guarantor or such Restricted
Subsidiary; (B) either (I) the Subsidiary to be so designated has total assets
of $1,000 or less or (II) if such Subsidiary has assets greater than $1,000,
such designation would be permitted under Section 10.10 and (C) if applicable,
the Incurrence of Debt and the Investment referred to in clause (A) of this
proviso would be permitted under Sections 10.08 and 10.10. The Board of
Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided that immediately after giving effect to such designation
(x) the Guarantor could Incur $1.00 of additional Debt under the first paragraph
of Section 10.08 and (y) no Default or Event of Default shall have occurred and
be continuing. Any such designation by the Board of Directors shall be evidenced
to the Trustee by promptly filing with the Trustee a copy of the Board
Resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing provisions.
"Vice President", when used with respect to the Issuer, the
Guarantor or the Trustee, means any vice president, whether or not designated by
a number or a word or words added before or after the title "vice president".
"Voting Stock" of any Person means Capital Stock of such Person
which ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or only so
long as no senior class of securities has such voting power by reason of any
contingency.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person all of the outstanding Voting Stock or other ownership interests (other
than directors' qualifying shares) of which shall at the time be owned by such
Person or by one or more Wholly Owned Subsidiaries of such Person or by such
Person and one or more Wholly Owned Subsidiaries of such Person.
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SECTION 1.02. Compliance Certificates and Opinions. Upon any
application or request by the Issuer to the Trustee to take any action under any
provision of this Indenture, the Issuer and Guarantor shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act and under this Indenture. Each such certificate or opinion shall
be given in the form of an Officers' Certificate, if to be given by an officer
of the Issuer or the Guarantor, or an Opinion of Counsel, if to be given by
counsel, and shall comply with the requirements of the Trust Indenture Act and
any other requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate of an officer of the Issuer or Guarantor may be
based, insofar as it relates to legal
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matters, upon an opinion of counsel submitted therewith, unless such officer
knows, or in the exercise of reasonable care should know, that the opinion with
respect to the matters upon which his certificate is based is erroneous. Any
opinion of counsel may be based, insofar as it relates to factual matters, upon
a certificate of an officer or officers of the Issuer or Guarantor submitted
therewith stating the information on which counsel is relying, unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate with respect to such matters is erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders; Record Dates. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Issuer or the Guarantor. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to Section 6.01)
conclusive in favor of the Trustee and the Issuer and Guarantor, if made in the
manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be
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proved in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security
Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, the
Issuer or the Guarantor in reliance thereon, whether or not notation of such
action is made upon such Security.
The Issuer may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Securities; provided that the Issuer may not set a record date for,
and the provisions of this paragraph shall not apply with respect to, the giving
or making of any notice, declaration, request or direction referred to in the
next paragraph. If not set by the Issuer prior to the first solicitation of a
Holder made by any Person in respect of any such matter referred to in the
foregoing sentence, the record date for any such matter shall be the 30th day
(or, if later, the date of the most recent list of Holders required to be
provided pursuant to Section 7.01) prior to such first solicitation. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to take
the relevant action, whether or not such Holders remain Holders after such
record date; provided that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the requisite
principal amount at maturity of Outstanding Securities on such record date.
Nothing in this paragraph shall be construed to prevent the Issuer from setting
a new record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount at maturity of
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the
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Issuer, at its own expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be given to the Trustee
in writing and to each Holder of Securities in the manner set forth in Section
1.06.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to join in the giving
or making of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in Section 5.02, (iii) any request to institute proceedings referred
to in Section 5.07(2) or (iv) any direction referred to in Section 5.12. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to join
in such notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount at maturity of Outstanding
Securities on such record date. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be canceled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount at maturity of Outstanding Securities on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Trustee,
at the Issuer's expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be given to the Issuer
in writing and to each Holder of Securities in the manner set forth in Section
1.06.
With respect to any record date set pursuant to this Section, the
party hereto which sets such record dates may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities in the manner set forth in Section
1.06, on or prior to the existing Expiration Date. If an Expiration Date is not
designated with respect to any record date set pursuant to this Section, the
party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
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respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
SECTION 1.05. Notices, Etc., to Trustee, Issuer and Guarantor. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Issuer or the Guarantor
shall be sufficient for every purpose hereunder if delivered in writing to
a Responsible Officer of the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration, or
(2) the Issuer or the Guarantor by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid,
to the Issuer or the Guarantor as applicable, addressed to it, if prior to
receipt by the Trustee of written notice pursuant to this Section 1.05 of
a change of address, at the address of its principal office specified in
the first paragraph of this instrument, or, if after receipt by the
Trustee of written notice pursuant to this Section 1.05 of a change of
address, at such other address as may be previously furnished in writing
to the Trustee by the Issuer or the Guarantor, as applicable.
SECTION 1.06. Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his
address as it appears in the Security Register, not later than the latest date
(if any), and not earlier than the earliest date (if any), prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice,
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nor any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.07. Application of Trust Indenture Act. The Trust
Indenture Act shall apply as a matter of contract to this Indenture for purposes
of interpretation, construction and defining the rights and obligations
hereunder. If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
SECTION 1.08. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns. All covenants and agreements
in this Indenture by the Issuer shall bind its successors and assigns, whether
so expressed or not.
SECTION 1.10. Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture. Nothing in this Indenture or
in the Securities, express or implied,
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shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders of Securities, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law. This Indenture, the Securities and the
Securities Guarantee shall be governed by and construed in accordance with the
laws of the State of New York.
SECTION 1.13. Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, Purchase Date or Stated Maturity of any Security shall
not be a Business Day, then (notwithstanding any other provision of this
Indenture or of the Securities) payment of interest or principal (and premium,
if any) need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date, Redemption Date, Purchase Date or at the Stated Maturity, provided that no
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date, Purchase Date or Stated Maturity, as the case may be.
SECTION 1.14. Agent for Service; Submission to Jurisdiction; Waiver
of Immunities. By the execution and delivery of this Indenture, each of the
Issuer and the Guarantor (i) represents that it has designated and appointed RSL
Communications N. America, Inc. ("RSLNA"), as its authorized agent upon which
process may be served in any suit, action or proceeding arising out of or
relating to the Securities, the Securities Guarantee or this Indenture that may
be instituted in any Federal or state court in the State of New York, Borough of
Manhattan, or brought under Federal or state securities laws or brought by the
Trustee (whether in its individual capacity or in its capacity as Trustee
hereunder), and that RSLNA has accepted such designation, (ii) submits to the
non-exclusive jurisdiction of any such court in any such suit, action or
proceeding, (iii) agrees that service of process upon RSLNA and written notice
of said service to the Issuer or the Guarantor, as applicable, (mailed or
delivered to its President at its principal office as specified in Section 1.05)
shall be deemed in every respect effective service of process upon it in any
such suit or proceeding, and (iv) agrees to take any and all action, including
the execution and filing of any and all such documents and instruments as may be
necessary to continue such designation and appointment of RSLNA in full force
and effect so long as any of the Securities shall be Outstanding.
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To the extent that the Issuer or the Guarantor has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
(whether through service of notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise) with respect to itself or its
property, each of the Issuer and the Guarantor hereby irrevocably waives such
immunity in respect of its obligations under this Indenture, the Securities
Guarantee and the Securities, to the extent permitted by law.
ARTICLE II
Security Forms
SECTION 2.01. Forms Generally. The Securities and the Trustee's
certificates of authentication thereof shall be in substantially the forms set
forth in this Article, with such appropriate legends, insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities.
Upon their original issuance, Rule 144A Securities shall be issued
in the form of a Global Security in bearer form without interest coupons, which
shall be deposited on behalf of the Initial Purchaser with the Book-Entry
Depositary at its New York corporate trust office, duly executed by the Issuer
and authenticated by the Trustee as hereinafter provided. Such Global Security,
together with its Successor Securities which are Global Securities other than
the Regulation S Global Security, are collectively herein called the "Restricted
Global Security". Upon their original issuance, Regulation S Securities shall be
issued in the form of a Global Security in bearer form without interest coupons,
which shall be deposited on behalf of the Initial Purchaser with the Book-Entry
Depositary at its New York corporate trust office, duly executed by the Issuer
and authenticated by the Trustee as hereinafter provided. Such Global Security,
together with its Successor Securities which are Global Securities other than
the Restricted Global Security, are collectively herein called the "Regulation S
Global Security".
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Upon receipt of the Restricted Global Security and the Regulation S
Global Security authenticated and delivered by the Trustee, the Book-Entry
Depositary shall issue to the Depositary a Depositary Interest in each such
Global Security by recording the Depositary Interest in the register of the Book
Entry Depositary in the name of Cede & Co., as nominee of the Depositary.
Ownership of beneficial interests shall be limited to Participants, including
Euroclear and Cedel, and Indirect Participants. Upon the issuance of the
Depositary Interest in such Global Security to the Depositary, the Depositary
shall credit, on its internal book-entry registration and transfer system, its
Participant's accounts with respective interests owned by such Participants.
Neither the Depositary nor its Participants shall have any rights
either under this Indenture or under any Global Security with respect to such
Global Security held on their behalf by the Book-Entry Depositary, and the Book-
Entry Depositary may be treated by the Issuer, the Trustee and any agent of the
Issuer or the Trustee as the absolute owner of such Global Security for the
purpose of receiving payment of or on account of the principal of (premium, if
any) and, subject to the provisions of this Indenture, interest on the Global
Security and for all other purposes. Notwithstanding the foregoing, nothing
herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Book-Entry Depositary or impair, as between the
Book-Entry Depositary and the Depositary and its Participants, the operation of
customary practices of such Depositary governing the exercise of the rights of
an owner of a beneficial interest in any Global Security.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods on steel engraved borders or may
be produced in any other manner all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
SECTION 2.02. Form of Face of Security. [If a Global Security
issued in bearer form, then insert -- THIS SECURITY IS A GLOBAL SECURITY WITHIN
THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS HELD BY THE BOOK-
ENTRY DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) IN
CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF. THIS SECURITY IS NOT
EXCHANGEABLE IN WHOLE
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OR IN PART OR TRANSFERABLE IN WHOLE OR IN PART EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[If Restricted Securities, then insert -- THE SECURITIES EVIDENCED
HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHOM THE TRANSFEROR REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
UNDER THE SECURITIES ACT ACQUIRING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (2) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE), (4) TO AN INSTITUTION THAT IS AN ACCREDITED INVESTOR WITHIN THE
MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT (IF AVAILABLE), OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES
LAWS.]
[If a Regulation S Security, then insert -- THIS SECURITY HAS NOT
BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND
MAY NOT BE OFFERED, SOLD OR DELIVERED IN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, ANY U.S. PERSON, UNLESS THIS SECURITY IS REGISTERED UNDER
THE SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS THEREOF IS
AVAILABLE.]
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9 7/8% SENIOR NOTES DUE 2009
[IF RESTRICTED GLOBAL SECURITY - CUSIP NO. 74972E AJ 7]
[IF REGULATION S GLOBAL SECURITY - CUSIP NO. G7703A AG 0;
ISIN NO. - USG7703A AA E58]
No. __________ $_______________
RSL Communications PLC, a United Kingdom corporation (herein called
the "Issuer", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to [If this
Security is a Global Security issued in bearer form, then insert: the bearer
hereof] [If this Security is not a Global Security issued in bearer form, then
insert: _____________, or registered assigns], the principal sum of
______________ DOLLARS [if this Security is a Global Security, then insert:
(which principal amount may from time to time be increased or decreased to such
other principal amounts by adjustments made on the records of the Trustee
hereinafter referred to in accordance with the Indenture)] on November 15, 2009,
and to pay cash interest thereon from May 13, 1999 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on May 15 and November 15, in each year, at the rate of 9 7/8% per
annum on the principal amount at maturity, until the principal hereof is paid or
made available for payment; [If Original Securities, then insert: provided,
however, that if the Issuer has not filed a registration statement (the
"Exchange Offer Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), registering a security substantially identical
to this Security (except that such Security will not contain terms with respect
to the Special Interest payments described below or transfer restrictions)
pursuant to an exchange offer (the "Exchange Offer") (or, in lieu thereof, a
registration statement registering this Security for resale (a "Resale
Registration Statement")), and (i) the Exchange Offer has not been completed by
270 days after the date of the Indenture (if the Exchange Offer is then required
to be made pursuant to the Exchange and Registration Rights Agreement (the
"Exchange and Registration Rights Agreement"), by and between the Issuer, the
Guarantor, as defined in the Indenture, the Purchaser (as defined therein) and
the Holders from time to time of the Securities) or (ii) any Resale Registration
Statement required to be filed by the Exchange and Registration Rights Agreement
is filed and declared effective but shall thereafter cease to be effective
(except as specifically permitted therein) without being succeeded promptly by
an
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<PAGE>
additional registration statement filed and declared effective upon the terms
and conditions set forth in the Exchange and Registration Rights Agreement (each
such event referred to in clauses (i) and (ii), a "Registration Default"), then
interest will accrue (in addition to the stated interest on the Securities) (the
"Step-Up") at a rate of 0.5% per annum, determined daily, on the principal
amount at maturity of the Securities, from the period from and including the
date of occurrence of the Registration Default to but excluding such date (the
"Step-Down Date") as no Registration Default is in effect (commencing on which
date such interest rate will be restored to its initial rate). Interest accruing
as a result of the Step-Up is referred to herein as "Special Interest." Accrued
Special Interest, if any, shall be paid semi-annually on May 15 and November 15
in each year; and the amount of accrued Special Interest shall be determined on
the basis of the number of days actually elapsed. Any accrued and unpaid
interest (including Special Interest) on this Security upon the issuance of an
Exchange Security (as defined in the Indenture) in exchange for this Security
shall cease to be payable to the Holder hereof but such accrued and unpaid
interest (including Special Interest) shall be payable on the next Interest
Payment Date for such Exchange Security to the Holder thereof [if not a Global
Security in bearer form, insert: on the related Regular Record Date].] The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to [If this Security
is a Global Security issued in bearer form, then insert: the bearer hereof on
the Interest Payment Date] [If this Security is not a Global Security issued in
bearer form, then insert: the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be May 1 or November 1 (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date]. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Interest Payment Date and
may either be paid to [If this Security is a Global Security issued in bearer
form, then insert: the bearer hereof on the Special Payment Date] [If this
Security is not a Global Security issued in bearer form, then insert: the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities not less than 10 days prior to such Special
Record Date,] or be paid at any time in any other lawful manner not inconsistent
with
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the requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
Under certain circumstances described in the Indenture, the Issuer
(or the Guarantor) also shall pay Additional Amounts to the Holders of
Securities equal to an amount that the Issuer or Guarantor, as the case may be,
may be required to withhold or deduct for or on account of Taxes imposed by a
Taxing Authority within the United Kingdom or Bermuda, as the case may be, from
any payment made under or with respect to the Securities or the Securities
Guarantee.
In the case of a default in payment of principal of and premium, if
any, on this Security upon acceleration or redemption, interest shall be payable
pursuant to the preceding paragraph on such overdue principal and premium, if
any, such interest shall be payable on demand and, if not so paid on demand,
such interest shall itself bear interest at the rate of 11 7/8% per annum (to
the extent that the payment of such interest shall be legally enforceable), and
shall accrue from the date of such demand for payment to the date payment of
such interest has been made or duly provided for, and such interest on unpaid
interest shall also be payable on demand.
[If this Security is a Global Security issued in bearer form, then
insert: The Issuer will pay interest, if any, on this Security to the bearer of
this Security. The Holder of this Security must surrender this Security to the
Trustee to collect principal payments.] Payment of the principal of (and
premium, if any) and interest on this Security will be made at the corporate
trust office of the Trustee and at the office or agency of the Issuer maintained
for that purpose in the Borough of Manhattan, The City of New York, New York,
and at any other office or agency maintained by the Issuer for such purpose, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts; provided, however, that
at the option of the Issuer payment of interest may be made by check mailed to
the address of the Person entitled thereto as such address [If this Security is
a Global Security in bearer form, then insert: is specified by the bearer
hereof] [If this Security is a Definitive Security, then insert: shall appear in
the Security Register].
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which
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further provisions shall for all purposes have the same effect as if set forth
at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated:
The Common Seal of
RSL COMMUNICATIONS PLC
was hereto affixed in
the presence of:
[SEAL]
RSL COMMUNICATIONS PLC,
by
----------------------
Name:
Title:
by
----------------------
Name:
Title:
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<PAGE>
SECTION 2.03. Form of Reverse of Security. This Security is one of a
duly authorized issue of Securities of the Issuer designated as its 9 7/8%
Senior Notes due 2009 (the "Securities") issued under an Indenture, dated as of
May 13, 1999 (herein called the "Indenture"), between the Issuer, RSL
Communications, Ltd., as the guarantor (the "Guarantor") and The Chase Manhattan
Bank, as trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture). Reference is hereby made to the Indenture and all
indentures supplemental thereto for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Issuer, the
Guarantor, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered.
The Securities are subject to redemption upon not less than 30 nor
more than 60 days' notice by mail to each Holder of Securities to be redeemed at
such Holder's address appearing in the Security Register, in amounts of $1,000
or an integral multiple of $1,000, at any time on or after November 15, 2004 and
prior to maturity, as a whole or in part, at the election of the Issuer, at the
following Redemption Prices (expressed as percentages of the principal amount)
plus accrued interest to but excluding the Redemption Date (subject to the right
of Holders [If this Security is not a Global Security issued in bearer form,
insert: on the relevant Regular Record Date] to receive interest due on an
Interest Payment Date that is on or prior to the Redemption Date), if redeemed
during the 12-month period beginning November 15, of each of the years indicated
below:
Redemption
Year Price
---- ----------
2004 104.938%
2005 103.292%
2006 101.646%
2007 and 100.000%
thereafter
and thereafter at a Redemption Price equal to 100% of the principal amount,
together in the case of any such redemption with accrued interest to but
excluding the Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more
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Predecessor Securities [If this Security is not a Global Security issued in
bearer form, insert:, of record at the close of business on the relevant Record
Dates referred to on the face hereof,] all as provided in the Indenture.
In addition, at any time prior to November 15, 2002, in the event
that the Guarantor receives net cash proceeds from the public or private sale of
its Common Stock (other than Disqualified Stock), the Issuer (to the extent it
receives such proceeds and has not used such proceeds, directly or indirectly,
to redeem or repurchase other securities pursuant to optional redemption
provisions) may, at its option, apply an amount equal to any such net cash
proceeds or any portion thereof to redeem, from time to time, Securities in a
principal amount at maturity of up to an aggregate amount equal to 33 1/3% of
the original aggregate principal amount at maturity of the Securities; provided,
however, that Securities in an amount equal to at least 66 2/3% of the aggregate
original principal amount at maturity of the Securities remain Outstanding after
each redemption. Each redemption must occur on a Redemption Date within 180 days
of the related sale and upon not less than 30 nor more than 60 days' notice by
mail to each Holder of Securities to be redeemed at such Holder's address
appearing in the Security Register, in amounts of $1,000 or an integral multiple
of $1,000 at a Redemption Price of 109.875% of the principal amount of the
Securities plus accrued interest to but excluding the Redemption Date.
Furthermore, in the event that (i) the Guarantor or the Issuer has
become or would become obligated to pay any Additional Amounts as a result of
(x) changes affecting withholding tax laws or (y) a Listing Failure provided
that the Issuer has used reasonable best efforts to list and maintain a listing
of the Securities on a "recognized stock exchange" (within the meaning of
Section 841 of the U.K. Income and Corporation Taxes Act 1988) (as provided for
in Section 10.09), and (ii) the Guarantor and the Issuer are unable to avoid the
requirement to pay such Additional Amounts by taking reasonable measures
available to them (including, without limitation, the Guarantor making payments
directly to holders under the Securities Guarantee, unless such payment is
likely to result in adverse consequences to the Issuer or the Guarantor), then
the Issuer may redeem all, but not less than all, of the Securities at any time
at 100% of the principal amount thereof on the Redemption Date, together with
accrued interest thereon, if any, to but excluding the Redemption Date. Prior to
the publication of the notice of redemption in accordance with the foregoing,
the Issuer shall deliver
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to the Trustee an officer's certificate stating that the Issuer is entitled to
effect such redemption based on a written opinion of independent tax counsel or
accounting firm reasonably satisfactory to the Trustee.
The Securities do not have the benefit of any sinking fund
obligations.
The Indenture provides that, subject to certain conditions, if (i) a
Change of Control occurs or (ii) certain Net Available Proceeds are available to
the Issuer as a result of any Asset Disposition, the Issuer shall be required to
make an Offer to Purchase for all or a specified portion of the Securities.
[If not a Global Security: In the event of redemption or purchase
pursuant to an Offer to Purchase of this Security in part only, a new Security
or Securities of like tenor for the unredeemed or unpurchased portion hereof
will be issued in the name of the Holder hereof upon the cancelation hereof.]
[If a Global Security insert: In the event of a deposit or
withdrawal of a beneficial interest in this Security (including upon an
exchange, transfer, redemption or repurchase of this Security in part only)
effected in accordance with the Applicable Procedures, the Security Registrar,
upon receipt of notice of such event from the Depositary's custodian for this
Security shall make an adjustment on its records to reflect an increase or
decrease of the Outstanding principal amount at maturity of this Security
resulting from such deposit or withdrawal, as the case may be, and shall
instruct the Book-Entry Depositary to make a similar notation in its book-entry
system to the corresponding Depositary Interest.]
If an Event of Default shall occur and be continuing, the principal
of all the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (i)
the entire indebtedness of this Security, or (ii) certain restrictive covenants
and Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth therein.
Unless the context otherwise requires, the Original Securities and
the Exchange Securities shall constitute one series for all purposes under the
Indenture,
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<PAGE>
including without limitation, amendments, waivers, redemptions and Offers to
Purchase.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer, the Guarantor and the rights of the Holders of the Securities under the
Indenture at any time by the Issuer, the Guarantor and the Trustee with the
consent of the Holders of a majority in aggregate principal amount at maturity
of the Securities at the time Outstanding. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount at maturity of the Securities at the time Outstanding, on
behalf of the Holders of all the Securities, to waive compliance by the Issuer
or the Guarantor with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Security shall be conclusive and binding upon such Holder
and upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest on this Security at the times, place and rate, and in the coin
or currency, herein prescribed.
[If this Security is not a Global Security issued in bearer form,
then insert: As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Issuer in the Borough of Manhattan, the City of New
York, New York, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Issuer and the Security Registrar duly
executed by the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities, of authorized denominations and like tenor
and for the same aggregate principal amount at maturity, will be issued to the
designated transferee or transferees.]
The Global Securities are issuable only in bearer form without
coupons in denominations of $1,000 and any integral multiple thereof. Definitive
Securities shall be
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issuable in registered form without interest coupons in denominations of $1,000
and any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities are exchangeable for a like
tenor and aggregate principal amount at maturity of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
[If this Security is a Global Security issued in bearer form, then
insert: The bearer of this Security shall be treated as the owner of this
Security for all purposes.]
No service charge shall be made for any such registration of
transfer or exchange, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
[If this Security is not a Global Security issued in bearer form,
insert: Prior to due presentment of this Security for registration of transfer,
the Issuer, the Guarantor, the Trustee and any agent of the Issuer, the
Guarantor, or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Issuer, the Guarantor, the Trustee nor any such agent
shall be affected by notice to the contrary.]
Interest on this Security shall be computed on the basis of a
360-day year of twelve 30-day months [If Original Securities, then insert: ;
provided, however, that Special Interest shall be computed on the basis of a
365- or 366-day year, as the case may be, and the number of days actually
elapsed].
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Issuer
pursuant to Section 10.13 or 10.17 of the Indenture, check the box:
/ /
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<PAGE>
If you want to elect to have only a part of this Security purchased
by the Issuer pursuant to Section 10.13 or 10.17 of the Indenture, state the
amount: $___________
Dated:____________ Your Signature:_____________________________________________
(Sign exactly as name appears on the other side of
this Security)
Signature Guarantee:____________________________________________________________
Notice: Signature(s) must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the
Security Registrar which requirements will include
membership or participation in STAMP or such other
"signature guarantee program" as may be determined by the
Trustee in addition to, or in substitution for STAMP, all in
accordance with the Securities Exchange Act of 1934, as
amended.
SECTION 2.04. Form of Trustee's Certificate of Authentication. This
is one of the Securities referred to in the within-mentioned Indenture.
Dated:
THE CHASE MANHATTAN BANK,
as Trustee
by
--------------------------
Authorized Signatory
ARTICLE III
The Securities
SECTION 3.01. Title and Terms. The aggregate principal amount at
maturity of Securities which may be authenticated and delivered under this
Indenture is limited to $175,000,000 issued on the date hereof, except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities pursuant to Section 3.04, 3.05,
3.06, 9.06 or 11.08 or in connection with an Offer to Purchase pursuant to
Section 10.13 or 10.17 (all Securities referred to in this
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exception being deemed "Substitute Securities"). The Issuer may issue Exchange
Securities from time to time pursuant to an Exchange Offer or otherwise, in each
case pursuant to a Board Resolution, subject to Section 3.03, included in an
Officers' Certificate delivered to the Trustee, in authorized denominations in
exchange for a like principal amount at maturity of Original Securities. Upon
any such exchange the Original Securities shall be canceled in accordance with
Section 3.09 and shall no longer be deemed Outstanding for any purpose. In no
event shall the aggregate principal amount at maturity of Original Securities
and Exchange Securities Outstanding exceed $175,000,000.
The Securities shall be known and designated as the "9 7/8% Senior
Notes due 2009" of the Issuer. The Stated Maturity of the Securities shall be
November 15, 2009. The Securities shall bear cash interest at the rate of 9 7/8%
per annum on the principal amount at maturity of the Notes, from May 13, 1999 or
from the most recent Interest Payment Date thereafter to which interest has been
paid or duly provided for, as the case may be, payable semi-annually on May 15
and November 15, commencing November 15, 1999, until the principal thereof is
paid or made available for payment; provided, however, with respect to Original
Securities, if there has been a Registration Default, a Step-Up will occur and
the Original Securities will from then bear Special Interest to but excluding
the Step-Down Date. Accrued Special Interest, if any, shall be paid in cash in
arrears semi-annually on May 15 and November 15 in each year, and the amount of
accrued Special Interest shall be determined on the basis of the number of days
actually elapsed.
With respect to Global Securities, the Issuer will pay interest, if
any, on such Securities to the bearers of such Securities. Holders of such
Global Securities must surrender such Securities to the Trustee to collect
principal payments. The principal of and premium, if any, and interest on the
Securities shall be payable at the corporate trust office of the Trustee in the
Borough of Manhattan, the City of New York, New York, maintained for such
purpose and at any other office or agency maintained by the Issuer for such
purpose; provided, however, that at the option of the Issuer payment of interest
may be made by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register.
The Securities shall be subject to repurchase by the Issuer pursuant
to an Offer to Purchase as provided in Sections 10.13 and 10.17 of the
Indenture.
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The Securities shall be redeemable as provided in Article Eleven.
The Securities shall not have the benefit of any sinking fund
obligations.
The Securities shall be subject to defeasance at the option of the
Issuer as provided in Article Twelve.
The Securities are guaranteed by the Guarantor as set forth in
Article IV of this Indenture.
A copy of an appropriate record of such action shall be certified by
the Secretary or any Assistant Secretary of the Issuer and delivered to the
Trustee at or prior to the delivery of the Officers' Certificate or the trust
indenture supplemental hereto setting forth the terms of such Securities.
Unless the context otherwise requires, the Original Securities and
the Exchange Securities shall constitute one series for all purposes under the
Indenture, including without limitation, amendments, waivers, redemptions and
Offers to Purchase.
SECTION 3.02. Denominations. The Global Securities shall be issuable
in bearer form without coupons and only in denominations of $1,000 and any
integral multiple of $1,000 in excess thereof. Definitive Registered Securities
shall be issuable in registered form without interest coupons in denominations
of $1,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the Issuer by its Chairman of the
Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
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At any time and from time to time after the execution and delivery
of this Indenture, the Issuer may deliver Securities executed by the Issuer to
the Trustee for authentication, together with a Issuer Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Issuer Order shall authenticate and deliver such Securities as in this
Indenture provided and not otherwise.
At any time and from time to time after the execution and delivery
of this Indenture and after the effectiveness of a Registration Statement under
the Securities Act with respect thereto, the Issuer may deliver Exchange
Securities executed by the Issuer to the Trustee for authentication, together
with an Issuer Order for the authentication and delivery of such Exchange
Securities and a like principal amount at maturity of Original Securities for
cancelation in accordance with Section 3.09 of this Indenture, and the Trustee
in accordance with the Issuer Order shall authenticate and deliver such
Securities. In authenticating such Exchange Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(a) that such Exchange Securities have been duly and validly issued
in accordance with the terms of the Indenture, and are entitled to all the
rights and benefits set forth herein; and
(b) that the issuance of the Exchange Securities in exchange for the
Original Securities has been effected in compliance with the Securities
Act of 1933, as amended.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 3.04. Temporary Securities. Pending the preparation of
definitive Securities, the Issuer may
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execute, and upon Issuer Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities are issued, the Issuer will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Issuer designated pursuant to Section 10.02, without charge to
the Holder. Upon surrender for cancelation of any one or more temporary
Securities, the Issuer shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like tenor and principal amount at maturity of
definitive Securities of authorized denominations. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 3.05. Registration, Registration of Transfer and Exchange.
(a) The Issuer shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 10.02 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Issuer shall provide for the
registration of Definitive Securities and of transfers of such Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
such Securities and transfers of such Securities as herein provided. Such
Security Register shall distinguish between Original Securities and Exchange
Securities.
Subject to the other provisions of this Indenture regarding
restrictions on transfer, upon surrender for registration of transfer of any
Definitive Security at an office or agency of the Issuer designated pursuant to
Section 10.02 for such purpose in accordance with the terms hereof, the Issuer
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of any
authorized denominations and of a like tenor and aggregate
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principal amount at maturity and bearing such restrictive legends as may be
required by this Indenture.
At the option of the Holder, and subject to the other provisions of
this Section 3.05, Securities may be exchanged for other Securities of any
authorized denominations and of a like tenor and aggregate principal amount at
maturity, upon surrender of such Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Issuer
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Issuer, evidencing the same
debt, and (subject to the provisions in the Original Securities regarding the
payment of Special Interest) entitled to the same benefits under this Indenture,
as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Issuer or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to the Holder for any registration
of transfer or exchange of Securities, but the Issuer may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.04, 3.05(d), 9.06 or 11.08 or in accordance
with any Offer to Purchase pursuant to Section 10.13 or 10.17 not involving any
transfer.
The Issuer shall not be required (i) to issue, register the transfer
of or exchange any Security during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of Securities
selected for redemption under Section 11.04 and ending at the close of business
on the day of such mailing, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
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(b) Certain Transfers and Exchanges. Notwithstanding any other
provision of this Indenture or the Securities, transfers and exchanges of
Securities and beneficial interests in a Global Security of the kinds specified
in this Section 3.05(b) shall be made only in accordance with this Section
3.05(b) or, if necessary, in accordance with such other procedures as the Issuer
shall develop which shall comply with applicable securities laws.
(i) Restricted Global Security to Regulation S Global Security.
If the owner of a beneficial interest in the Restricted Global Security
wishes at any time to transfer such interest to a Person who wishes to
acquire the same in the form of a beneficial interest in the Regulation S
Global Security, such transfer may be effected only in accordance with the
provisions of this Clause (b)(i) and Clause (b)(v) below and subject to
the Applicable Procedures. Upon receipt by the Trustee, as Security
Registrar, of (A) an order given by the Depositary or its authorized
representative directing that a beneficial interest in the Regulation S
Global Security in a specified Agent Member's principal amount at maturity
be credited to a specified Agent Member's account and that a beneficial
interest in the Restricted Global Security in an equal principal amount at
maturity be debited from another specified Agent Member's account and (B)
a Regulation S Certificate, satisfactory to the Trustee and duly executed
by the owner of such beneficial interest in the Restricted Global Security
or his attorney duly authorized in writing, then the Trustee, as Security
Registrar but subject to Clause (b)(v) below, shall reduce or cause to be
reduced the principal amount at maturity of the Restricted Global Security
and increase the principal amount at maturity of the Regulation S Global
Security by such specified principal amount at maturity as provided in
Section 3.05(e).
(ii) Regulation S Global Security to Restricted Global Security.
If the owner of a beneficial interest in the Regulation S Global Security
wishes at any time to transfer such interest to a Person who wishes to
acquire the same in the form of a beneficial interest in the Restricted
Global Security, such transfer may be effected only in accordance with
this Clause (b)(ii) and subject to the Applicable Procedures. Upon receipt
by the Trustee, as Security Registrar, of (A) an order given by the
Depositary or its authorized representative directing that a beneficial
interest in the Restricted Global Security in a specified principal
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amount at maturity be credited to a specified Agent Member's account and
that a beneficial interest in the Regulation S Global Security in an equal
principal amount at maturity be debited from another specified Agent
Member's account and (B) if such transfer is to occur during the
Restricted Period, a Restricted Securities Certificate, satisfactory to
the Trustee and duly executed by the owner of such beneficial interest in
the Regulation S Global Security or his attorney duly authorized in
writing, then the Trustee, as Security Registrar, shall reduce or cause to
be reduced the principal amount at maturity of the Regulation S Global
Security and increase the principal amount at maturity of the Restricted
Global Security by such specified principal amount at maturity as provided
in Section 3.05(e).
(iii) Definitive Security to Definitive Security. A Security that
is a Definitive Security may be transferred, in whole or in part, to a
Person who takes delivery in the form of another Security that is a
Definitive Security as provided in Section 3.05(a), provided that, if the
Security to be transferred in whole or in part is a Restricted Security,
or is a Regulation S Security and the transfer is to occur during the
Restricted Period, then the Trustee shall have received (A) a Restricted
Securities Certificate, satisfactory to the Trustee and duly executed by
the transferor Holder or his attorney duly authorized in writing, in which
case the transferee Holder shall take delivery in the form of a Restricted
Security, or (B) a Regulation S Certificate, satisfactory to the Trustee
and duly executed by the transferor Holder or his attorney duly authorized
in writing, in which case the transferee Holder shall take delivery in the
form of a Regulation S Security (subject in every case to Section
3.05(c)).
(iv) Exchanges between Global Security and Definitive Security. A
beneficial interest in a Global Security may be exchanged for a Security
that is a Definitive Security as provided in Section 3.05(d), provided
that, if such interest is a beneficial interest in the Restricted Global
Security, or if such interest is a beneficial interest in the Regulation S
Global Security and such exchange is to occur during the Restricted
Period, then such interest shall be exchanged for a Restricted Security or
a Regulation S Security, as the case may be (subject in each case to
Section 3.05(c)).
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(v) Regulation S Global Security to be Held Through Euroclear or
Cedel during Restricted Period. The Issuer shall use its best efforts to
cause the Depositary to ensure that, until the expiration of the
Restricted Period, beneficial interests in the Regulation S Global
Security may be held only in or through accounts maintained at the
Depositary by Euroclear or Cedel (or by Agent Members acting for the
account thereof), and no person shall be entitled to effect any transfer
or exchange that would result in any such interest being held otherwise
than in or through such an account; provided that this Clause (b)(v) shall
not prohibit any transfer or exchange of such an interest in accordance
with Clause (b) above.
(c) Securities Act Legends. Rule 144A Securities and their Successor
Securities shall bear a Restricted Securities Legend, and the Regulation S
Securities and their Successor Securities shall bear a Regulation S Legend,
subject to the following:
(i) subject to the following Clauses of this Section 3.05(c), a
Security or any portion thereof which is exchanged, upon transfer or
otherwise, for a Global Security or any portion thereof shall bear the
Securities Act Legend borne by such Global Security while represented
thereby;
(ii) subject to the following Clauses of this Section 3.05(c), a
new Security which is a Definitive Security and is issued in exchange for
a Global Security or any portion thereof, upon transfer or otherwise,
shall bear the Securities Act Legend borne by such other Security,
provided that, if such new Security is required pursuant to Section
3.05(b)(iii) or (iv) to be issued in the form of a Restricted Security, it
shall bear a Restricted Securities Legend and, if such new Security is so
required to be issued in the form of a Regulation S Security, it shall
bear a Regulation S Legend;
(iii) Registered Securities shall not bear a Securities Act
Legend;
(iv) at any time after the Securities may be freely transferred
without registration under the Securities Act or without being subject to
transfer restrictions pursuant to the Securities Act, a new Security which
does not bear a Securities Act Legend
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may be issued in exchange for or in lieu of a Security (other than a
Global Security) or any portion thereof which bears such a legend if the
Trustee has received an Unrestricted Securities Certificate, satisfactory
to the Trustee and duly executed by the Holder of such legended Security
or his attorney duly authorized in writing, and after such date and
receipt of such certificate, the Trustee shall authenticate and deliver
such a new Security in exchange for or in lieu of such other Security as
provided in this Article III;
(v) a new Security which does not bear a Securities Act Legend
may be issued in exchange for or in lieu of a Security (other than a
Global Security) or any portion thereof which bears such a legend if, in
the Issuer's judgment, placing such a legend upon such new Security is not
necessary to ensure compliance with the registration requirements of the
Securities Act, and the Trustee, at the direction of the Issuer, shall
authenticate and deliver such a new Security as provided in this Article
III; and
(vi) notwithstanding the foregoing provisions of this Section
3.05(c), a Successor Security of a Security that does not bear a
particular form of Securities Act Legend shall not bear such form of
legend unless the Issuer has reasonable cause to believe that such
Successor Security is a "restricted security" within the meaning of Rule
144, in which case the Trustee, at the direction of the Issuer, shall
authenticate and deliver a new Security bearing a Restricted Securities
Legend in exchange for such Successor Security as provided in this Article
III.
(d) Exchanges of Global Security for Definitive Security. Transfers
of Global Securities shall be by delivery. The Book-Entry Depositary and the
Issuer have agreed that the Global Securities shall only be delivered in the
circumstances described in the Deposit Agreement. Notwithstanding any other
provision in this Indenture, no Global Security may be exchanged in whole or in
part for Definitive Securities unless (i) the Depositary notifies the Issuer or
the Book-Entry Depositary in writing that it (or its nominee) is unwilling or
unable to continue to act as depositary, or ceases to be, a clearing agency
registered under the Exchange Act, and, in either case, a successor depositary
registered as a clearing agency under the Exchange Act is not appointed by the
Issuer within 90 days, (ii) at any time if the Issuer determines that the Global
Securities (in whole but not in part) should be exchanged
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for Definitive Securities; provided, that (x) such exchange is required by (A)
any applicable law or (B) any event beyond the Issuer's control or (y) payments
of interest on any Global Security, Depositary Interest or beneficial interest
are, or would become, subject to any deduction or withholding for taxes, (iii)
at any time after the consummation of the Exchange Offer, if the owner of a
beneficial interest requests such exchange in writing delivered to the
Depositary and through the Depositary to the Book-Entry Depositary and the
Trustee, or (iv) if the Book-Entry Depositary is at any time unwilling or unable
to continue as Book-Entry Depositary and a successor Book-Entry Depositary is
not appointed by the Issuer within 90 days. Upon the occurrence of any of the
preceding events, Definitive Securities shall be issued in such names as the
Book-Entry Depositary shall instruct the Trustee based on the instructions of
the Depositary.
(e) If any Global Security is to be exchanged for other Securities
or canceled in whole, it shall be surrendered by or on behalf of the Book-Entry
Depositary or its nominee to the Trustee, as Security Registrar, for exchange or
cancelation as provided in this Article III. If any Global Security is to be
exchanged for other Securities or canceled in part, or if another Security is to
be exchanged in whole or in part for a beneficial interest in any Global
Security, then either (i) such Global Security shall be so surrendered for
exchange or cancelation as provided in this Article III or (ii) the principal
amount at maturity thereof shall be reduced or increased by an amount equal to
the portion thereof to be so exchanged or canceled, or equal to the principal
amount at maturity of such other Security to be so exchanged for a beneficial
interest therein, as the case may be, by means of an appropriate adjustment made
by the Book-Entry Depositary as directed by the Trustee in such Book-Entry
Depositary's book-entry system to the corresponding Depositary Interest,
whereupon the Trustee, in accordance with the Applicable Procedures, shall
instruct the Depositary or its authorized representative to make a corresponding
adjustment to its records. Upon any such surrender or adjustment of a Global
Security, the Trustee shall, subject to Section 3.05(b) and as otherwise
provided in this Article III, authenticate and deliver any Securities issuable
in exchange for such Global Security (or any portion thereof) to or upon the
order of, and registered (if applicable) in such names as may be directed by,
the Book-Entry Depositary or its authorized representative. Upon the request of
the Trustee in connection with the occurrence of any of the events specified in
the preceding paragraph, the Issuer shall
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promptly make available to the Trustee a reasonable supply of Securities that
are not in the form of Global Securities. The Trustee shall be entitled to rely
upon any order, direction or request of the Book-Entry Depositary or the
Depositary or any of their authorized representatives which is given or made
pursuant to this Article III if such order, direction or request is given or
made in accordance with the Deposit Agreement with respect to the Book-Entry
Depositary and the Applicable Procedures with respect to the Depositary.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If
any mutilated Security is surrendered to the Trustee, the Issuer shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of like tenor and principal amount at maturity and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Issuer and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of written
notice to the Issuer or the Trustee that such Security has been acquired by a
bona fide purchaser, the Issuer shall execute and the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of like tenor and principal amount at maturity and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Issuer in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Issuer
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture
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equally and proportionately with any and all other Securities duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the bearer thereof
on the Interest Payment Date in the case of a Global Security in bearer form
and, in the case of a Definitive Security, to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Any interest (including Special Interest) on any Security which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall (a) bear interest at the
rate per annum stated in the form of Security included herein (to the extent
that the payment of such interest shall be legally enforceable), and (b)
forthwith cease to be payable to the bearer thereof on such Interest Payment
Date with respect to a Global Security in bearer form and, with respect to a
Definitive Security, to the Holder on the relevant Regular Record Date by virtue
of having been such Holder, and, in each case, such Defaulted Interest may be
paid by the Issuer, at its election in each case, as provided in Clause (a) or
(b) below:
(a) The Issuer may elect to make payment of any Defaulted Interest
to the bearer of such Security on any Special Payment Date (as defined
below) with respect to any Global Security in bearer form and, with
respect to a Definitive Security, to the Persons in whose names the
Securities (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Issuer shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Issuer shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to
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the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest
as in this Clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Issuer of such Special Record Date and, in the name and at the
expense of the Issuer, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder, not less than 10 days prior
to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid, with respect to any
Definitive Security, to the Persons in whose names the Securities (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (b). As used in this Clause (a), "Special
Payment Date" means the date on which Defaulted Interest is paid to the
Holder.
(b) The Issuer may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Issuer to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners. Prior to due presentment of a
Security for registration of transfer, the Issuer, the Guarantor, the Trustee
and any agent of the Issuer, the Guarantor or the Trustee may treat the Person
in whose name a Definitive Security is registered as the owner of such Security
and may treat the bearer of a Global Security as the owner of such Security, in
each case, for
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the purpose of receiving payment of principal of and premium, if any, and
(subject to Section 3.07) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Issuer, the
Guarantor, the Trustee nor any agent of the Issuer, the Guarantor or the Trustee
shall be affected by notice to the contrary.
SECTION 3.09. Cancelation. All Securities surrendered for payment,
redemption, registration of transfer, exchange or pursuant to any Offer to
Purchase pursuant to Section 10.13 or 10.17 shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee and shall be promptly
canceled by it. The Issuer may at any time deliver to the Trustee for
cancelation any Securities previously authenticated and delivered hereunder
which the Issuer may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of in accordance with its
standard procedures or as directed by an Issuer Order; provided, however, that
the Trustee shall not be required to destroy such Securities.
SECTION 3.10. Computation of Interest. Interest on the Securities
shall be computed on the basis of a 360-day year of twelve 30-day months,
provided, however, that Special Interest on Original Securities shall be
computed on the basis of a 365- or 366-day year, as the case may be, and the
number of days actually elapsed.
SECTION 3.11. CUSIP and ISIN Numbers. The Issuer in issuing
Securities may use "CUSIP and "ISIN" numbers (if then generally in use) in
addition to serial numbers; if so, the Trustee shall use such "CUSIP" and "ISIN"
numbers in addition to serial numbers in notices of redemption and repurchase as
a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such "CUSIP" and "ISIN" numbers
either as printed on the Securities or as contained in any notice of a
redemption or repurchase and that reliance may be placed only on the serial or
other identification numbers printed on the Securities, and any such redemption
or repurchase shall not be affected by any defect in or omission of such "CUSIP"
and "ISIN" numbers.
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ARTICLE IV
Guarantee Of Securities
SECTION 4.01. Guarantee. Subject to the provisions of this Article
Four, the Guarantor hereby fully, unconditionally and irrevocably guarantees to
each Holder and to the Trustee on behalf of the Holders: (i) the due and
punctual payment of the principal of, premium, if any, on and interest
(including Special Interest) on each Security, when and as the same shall become
due and payable, whether at maturity, by acceleration or otherwise, the due and
punctual payment of interest on the overdue principal of and interest, if any,
on the Securities, to the extent lawful, and the due and punctual performance of
all other obligations of the Issuer to the Holders or the Trustee, all in
accordance with the terms of such Security and this Indenture and (ii) in the
case of any extension of time of payment or renewal of any Securities or any of
such other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, at Stated
Maturity, by acceleration or otherwise. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger or bankruptcy of the Issuer, any right to require a proceeding first
against the Issuer, the benefit of discussion, protest or notice with respect to
any such Security or the debt evidenced thereby and all demands whatsoever, and
covenants that this Securities Guarantee will not be discharged as to any such
Security except by payment in full of the principal thereof and interest thereon
and as provided in Section 12.01 and Section 12.02 (subject to Section 12.06).
The maturity of the obligations guaranteed hereby may be accelerated as provided
in Article Five for the purposes of this Article Four. In the event of any
declaration of acceleration of such obligations as provided in Article Five,
such obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantor for the purpose of this Article Four. In addition,
without limiting the foregoing provisions, upon the effectiveness of an
acceleration under Article Five, the Trustee shall promptly make a demand for
payment on the Securities under the Guarantee provided for in this Article Four.
If the Trustee or the Holder of any Security is required by any
court or otherwise to return to the Issuer or the Guarantor, or any custodian,
receiver, liquidator, trustee, sequestrator or other similar official acting in
relation to the Issuer or the Guarantor, any amount paid to
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the Trustee or such Holder in respect of a Security, this Securities Guarantee,
to the extent theretofore discharged, shall be reinstated in full force and
effect. The Guarantor further agrees, to the fullest extent that it may lawfully
do so, that, as between it, on the one hand, and the Holders and the Trustee, on
the other hand, the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Five hereof for the purposes of this
Securities Guarantee, notwithstanding any stay, injunction or other prohibition
extant under any applicable bankruptcy law preventing such acceleration in
respect of the obligations guaranteed hereby.
Until such time as the Securities are fully and finally paid,
including all interest, premium, principal and liquidated damages with respect
thereto, the Guarantor hereby irrevocably waives any claim or other rights which
it may now or hereafter acquire against the Issuer that arise from the
existence, payment, performance or enforcement of its obligations under this
Securities Guarantee and this Indenture, including, without limitation, any
right of subrogation, reimbursement, exoneration, contribution, indemnification,
any right to participate in any claim or remedy of the Holders against the
Issuer or any collateral which any such Holder or the Trustee on behalf of such
Holder hereafter acquires, whether or not such claim, remedy or right arises in
equity, or under contract, statute or common law, including, without limitation,
the right to take or receive from the Issuer, directly or indirectly, in cash or
other property or by setoff or in any other manner, payment or security on
account of such claim or other rights. If any amount shall be paid to the
Guarantor in violation of the preceding sentence and the principal of, premium,
if any, and accrued interest on the Securities shall not have been paid in full,
such amount shall be deemed to have been paid to the Guarantor for the benefit
of, and held in trust for the benefit of, the Holders, and shall forthwith be
paid to the Trustee for the benefit of the Holders to be credited and applied
upon the principal of, premium, if any, and accrued interest on the Securities.
The Guarantor acknowledges that it will receive direct and indirect benefits
from the issuance of the Securities pursuant to this Indenture and that the
waivers set forth in this Section 4.01 are knowingly made in contemplation of
such benefits.
The Guarantee set forth in this Section 4.01 shall not be valid or
become obligatory for any purpose with respect to a Security until the
certificate of
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authentication on such Security shall have been signed by or on behalf of the
Trustee.
SECTION 4.02. Obligations Unconditional. Subject to Section 4.05,
nothing contained in this Article Four or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as among the Guarantor and the
holders of the Securities, the obligation of the Guarantor, which is absolute
and unconditional, upon failure by the Issuer, to pay to the holders of the
Securities the principal of, premium, if any, and interest on the Securities as
and when the same shall become due and payable in accordance with their terms,
or is intended to or shall affect the relative rights of the holders of the
Securities and creditors of the Guarantor, nor shall anything herein or therein
prevent the holder of any Securities or the Trustee on their behalf from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture.
Without limiting the foregoing, nothing contained in this Article
Four will restrict the right of the Trustee or the holders of the Securities to
take any action to declare the Guarantee to be due and payable prior to the
Stated Maturity of the Securities pursuant to Section 5.02 or to pursue any
rights or remedies hereunder.
SECTION 4.03. Notice to Trustee. The Guarantor shall give prompt
written notice to the Trustee of any fact known to the Guarantor which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities Guarantee pursuant to the provisions of this Article Four.
ARTICLE V
Remedies
SECTION 5.01. Events of Default. "Event of Default", wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest upon any Security when it
becomes due and payable, and continuance of such default for a period of
30 days; or
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(b) default in the payment of the principal of (or premium, if any,
on) any Security when due; or
(c) default in the payment of principal and interest upon any
Security required to be purchased pursuant to an Offer to Purchase
pursuant to Sections 10.13 or 10.17; or
(d) default in the performance, or breach, of Section 8.01, 10.13 or
10.17; or
(e) default in the performance, or breach, of any covenant or
warranty of the Issuer or Guarantor in this Indenture or in any Security
(other than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the Issuer by the
Trustee or to the Issuer and the Trustee by the Holders of at least 25% in
aggregate principal amount at maturity of the Outstanding Securities a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
or
(f) a default or defaults under any bond(s), debenture(s), note(s)
or other evidence(s) of indebtedness by the Guarantor, the Issuer or any
Subsidiary of the Guarantor or under any mortgage(s), indenture(s) or
instrument(s) under which there may be issued or by which there may be
secured or evidenced any indebtedness of such type by the Guarantor, the
Issuer or any Subsidiary of the Guarantor with a principal amount then
outstanding, individually or in the aggregate, in excess of $10 million,
whether such indebtedness now exists or shall hereafter be created, which
default or defaults shall constitute a failure to pay in excess of $10
million of the principal of such indebtedness when due at the final
maturity thereof, or shall have resulted in excess of $10 million of
indebtedness becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable; or
(g) a final judgment or final judgments for the payment of money are
entered against the Guarantor, the Issuer or any Subsidiary of the
Guarantor in an aggregate amount in excess of $10 million (net of
indemnities and funds actually received or to be
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received within 90 days of such judgment) by a court or courts of
competent jurisdiction, which judgments remain undischarged or unbonded
for a period (during which execution shall not be effectively stayed) of
60 days after the right to appeal all such judgments has expired; or
(h) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Guarantor, the Issuer or
any Significant Subsidiaries in an involuntary case or proceeding under
any applicable bankruptcy, insolvency, reorganization or other similar law
or (B) a decree or order adjudging the Guarantor, the Issuer or any
Significant Subsidiaries a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Guarantor, the Issuer or any
Significant Subsidiaries under any applicable law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Guarantor, the Issuer or any Significant
Subsidiaries or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any such
decree or order for relief or any such other decree or order unstayed and
in effect for a period of 60 consecutive days; or
(i) the commencement by the Guarantor, the Issuer or any Significant
Subsidiaries of a voluntary case or proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect of
the Guarantor, the Issuer or any Significant Subsidiaries in an
involuntary case or proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Guarantor, the Issuer or any Significant Subsidiaries or
of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in writing
of its inability to pay its
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debts generally as they become due, or the taking of corporate action by
the Guarantor, the Issuer or any Significant Subsidiaries in furtherance
of any such action.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. If
an Event of Default (other than an Event of Default specified in Section 5.01(h)
or (i)) occurs and is continuing, then and in every such case the Trustee or the
Holders of not less than 25% in principal amount at maturity of the Outstanding
Securities may declare the principal amount at maturity of all the Securities to
be due and payable immediately, by a notice in writing to the Issuer (and to the
Trustee if given by Holders), and upon any such declaration such principal
amount and any accrued interest shall become immediately due and payable. If an
Event of Default specified in Section 5.01(h) or (i) occurs, the principal
amount of and any accrued interest on the Securities then Outstanding shall ipso
facto become immediately due and payable without any declaration or other Act on
the part of the Trustee or any Holder.
At any time after such a declaration of acceleration has been made
and before a judgment or decree for payment of the money due based on
acceleration has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount at maturity of the
Outstanding Securities, by written notice to the Issuer and the Trustee, may
rescind and annul such declaration and its consequences if:
(1) the Issuer has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal amount of (and premium, if any, on) any
Securities which have become due otherwise than by such declaration
of acceleration (including any Securities required to have been
purchased on the Purchase Date pursuant to an Offer to Purchase made
by the Issuer) and interest thereon at the rate borne by the
Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities,
and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation,
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expenses, disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement
by Trustee. The Issuer covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for
a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof or, with respect to any
Security required to have been purchased pursuant to an Offer to Purchase
made by the Issuer, at the Purchase Date thereof,
the Issuer will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
provided by the Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Issuer fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Issuer or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out
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of the property of the Issuer or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim. In case of any
judicial proceeding relative to the Issuer (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized to collect and receive any moneys, securities or
other property payable or deliverable upon the exchange of the Securities or
upon any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.07.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors or
other similar committee.
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding
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relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 5.06. Application of Money Collected. Any money collected by
the Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.07; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal (and
premium, if any) and interest, respectively.
SECTION 5.07. Limitation on Suits. No Holder of any Security shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal amount
at maturity of the Outstanding Securities shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered and, if requested, provided
to the Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
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(4) the Trustee for 60 days after its receipt of such notice,
request and offer and, if requested, provision of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount at maturity of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 5.08. Unconditional Right of Holders To Receive Principal,
Premium and Interest. Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 3.07) interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date or, in the case of an Offer to Purchase made by the Issuer and
required to be accepted as to such Security, on the Purchase Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 5.09. Restoration of Rights and Remedies. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Issuer, the Trustee and the Holders shall be restored severally and respectively
to their former positions hereunder and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 5.10. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 3.06, no right or
remedy herein conferred upon or reserved to the Trustee
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or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12. Control by Holders. The Holders of a majority in
principal amount at maturity of the Outstanding Securities shall have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee; provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or expose the Trustee to personal liability (as
determined in the sole discretion of the Trustee), and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13. Waiver of Past Defaults. The Holders of not less than
a majority in aggregate principal amount at maturity of the Outstanding
Securities may on behalf of the Holders of all the Securities by written notice
to the Trustee waive any past default hereunder and its consequences, except a
default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security (including any Security which is required to have
been purchased pursuant to an Offer to Purchase which has been made by the
Issuer), or
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(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected or
(3) arising from failure to purchase any Security tendered pursuant
to Sections 10.13 and 10.17 of this Indenture.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of such suit, and
may assess costs against any such party litigant, in the manner and to the
extent provided in the Trust Indenture Act; provided that neither this Section
nor the Trust Indenture Act shall be deemed to authorize any court to require
such an undertaking or to make such an assessment in any suit instituted by the
Issuer or the Guarantor; further provided, that the provisions of this Section
5.14 shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder or group of Holders holding more than 10% in aggregate
principal amount at maturity of the Outstanding Securities, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of,
or premium, if any, or interest on any Security on or after the respective due
dates expressed in such Security.
SECTION 5.15. Waiver of Stay or Extension Laws. Each of the Issuer
and the Guarantor covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and each of the Issuer and the Guarantor (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
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ARTICLE VI
The Trustee
SECTION 6.01. Certain Duties and Responsibilities. (a) Except during
the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants, duties or obligations shall be read into this Indenture against
the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but
in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in
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good faith in accordance with the direction of the Holders of a majority
in principal amount at maturity of the Outstanding Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 6.02. Notice of Defaults. The Trustee shall give the Holders
notice of any default hereunder known to the Trustee as and to the extent
provided by the Trust Indenture Act; provided, however, that in the case of any
default of the character specified in Section 5.01(e), no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default.
SECTION 6.03. Certain Rights of Trustee. Subject to the provisions
of Section 6.01:
(a) the Trustee may conclusively rely and shall be completely
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by a Issuer Request or Issuer Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
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(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, request from the Issuer and be completely protected
in relying upon an Officers' Certificate received in response to such
request;
(d) the Trustee may consult with counsel of its selection and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction reasonably satisfactory to
the Trustee;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee may (but shall have no obligation to) make such
further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Issuer or the Guarantor, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by
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it in accordance with the direction of Holders of Outstanding Securities
as provided in Sections 5.02, 5.12 and 5.13 hereof; and
(i) for all purposes under this Indenture, the Trustee shall not be
deemed to have notice of any Event of Default unless a Responsible Officer
of the Trustee has actual knowledge thereof or unless written notice of
any event which is in fact such a default is received by the Trustee at
the Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture.
SECTION 6.04. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Issuer, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or the Securities Guarantee. The Trustee shall
not be accountable for the use or application by the Issuer of Securities or the
proceeds thereof.
SECTION 6.05. May Hold Securities. The Trustee, any Paying Agent,
any Security Registrar or any other agent of the Issuer, in its individual or
any other capacity, may become the owner or pledgee of Securities and, subject
to Sections 6.08 and 6.13, may otherwise deal with the Issuer or the Guarantor
with the same rights it would have if it were not Trustee, Paying Agent,
Security Registrar or such other agent.
SECTION 6.06. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Issuer.
SECTION 6.07. Compensation and Reimbursement.
The Issuer and the Guarantor jointly and severally agree
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
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(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of
enforcing this Indenture against the Issuer or the Guarantor (including,
without limitation, this Section 6.07) and of defending itself against any
claim (whether asserted by any Holder or the Issuer or the Guarantor) or
liability in connection with the exercise or performance of any of its
powers or duties hereunder. The provisions of this Section 6.07 shall
survive any termination of this Indenture and the resignation or removal
of the Trustee.
As security for the performance of the obligations of the Issuer
under this Section 6.07, the Trustee shall have a lien prior to the Securities
upon all property and funds held or collected by the Trustee, except funds held
in trust for the payment of principal of (and premium, if any) or interest on
particular Securities. The Trustee's right to receive payment of any amounts due
under this Section 6.07 shall not be subordinate to any other liability or
indebtedness of the Issuer (even though the Securities may be so subordinated).
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.01(h) or Section 5.01(i), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture or the earlier resignation or termination of the Trustee.
SECTION 6.08. Disqualification; Conflicting Interests. If the
Trustee has or shall acquire a
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conflicting interest within the meaning of the Trust Indenture Act, the Trustee
shall either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture.
SECTION 6.09. Corporate Trustee Required; Eligibility. There shall
at all times be a Trustee hereunder which shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined capital
and surplus of at least $50,000,000 and its Corporate Trust Office in the
Borough of Manhattan, the City of New York, New York. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of a Federal, State, Territorial or District of Columbia supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 6.10. Resignation and Removal; Appointment of Successor. (a)
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 6.11, at which time the
retiring Trustee shall be fully discharged from its obligations hereunder.
(b) The Trustee may resign at any time by giving written notice
thereof to the Issuer. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of
a majority in principal amount at maturity of the Outstanding Securities,
delivered to the Trustee and to the Issuer.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08 after written
request therefor by the
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Issuer or by any Holder who has been a bona fide Holder of a Security for
at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09 and
shall fail to resign after written request therefor by the Issuer or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer by a Board Resolution may remove the
Trustee, or (ii) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Issuer, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount at maturity of the Outstanding
Securities delivered to the Issuer and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee and supersede the successor Trustee appointed by
the Issuer. If no successor Trustee shall have been so appointed by the Issuer
or the Holders and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee.
(f) The Issuer shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 1.06. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
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SECTION 6.11. Acceptance of Appointment by Successor. Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver to
the Issuer and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Issuer or the successor Trustee,
such retiring Trustee shall, upon payment of all sums owing to the Trustee under
Section 6.07, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder. Upon request of any such successor
Trustee, the Issuer shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided that such corporation shall be otherwise qualified and
eligible under this Article. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against Issuer or
Guarantor. If and when the Trustee shall be or become a creditor of the Issuer
or Guarantor (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act
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regarding the collection of claims against the Issuer or Guarantor (or any such
other obligor).
SECTION 6.14. Appointment of Authenticating Agent. The Trustee may
appoint an Authenticating Agent or Agents with respect to the Securities which
shall be authorized to act on behalf of the Trustee to authenticate Securities
issued upon original issue and upon exchange, registration of transfer or
partial redemption thereof or pursuant to Section 3.06, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Issuer and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent; provided,
such corporation shall be otherwise eligible under this Section.
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An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Issuer. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Issuer. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Issuer and shall give notice of such
appointment in the manner provided in Section 1.06 to all Holders of Securities.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.07.
If an appointment is made pursuant to this Section, the Securities
may have endorsed thereon, in lieu of the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated:
THE CHASE MANHATTAN BANK, as
Trustee,
by
------------------------,
as Authenticating Agent
by
-------------------------
Authorized Signatory
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SECTION 6.15. Withholding Taxes. Notwithstanding any other provision
of this Agreement, the Trustee, as agent for the Issuer and the Guarantor, shall
exclude and withhold from each payment of principal and interest and other
amounts due hereunder or under the Securities or the Securities Guarantee any
and all withholding taxes applicable thereto as required by law. The Trustee
agrees to act as such withholding agent and, in connection therewith, whenever
any present or future taxes or similar charges are required to be withheld with
respect to any amounts payable in respect of the Securities or the Securities
Guarantee, to withhold such amounts and timely pay the same to the appropriate
authority in the name of and on behalf of the Holders of the Securities, that it
will furnish to the Holders of the Securities such forms or certificates as are
necessary or appropriate to provide the information described in Section
10.09(c)(i) hereof or make the declaration or claim described in Section
10.09(c)(ii) hereof, that it will file any necessary withholding tax returns or
statements when due, and that, as promptly as possible after the payment
thereof, it will deliver to each Holder of a Security appropriate documentation
showing the payment thereof, together with such additional documentary evidence
as such Holders may reasonably request from time to time.
In the event that the Trustee is also acting as Paying Agent,
Authenticating Agent, transfer agent, or Registrar hereunder, the rights and
protections afforded to the Trustee pursuant to this Article Six shall also be
afforded to such Paying Agent, Authenticating Agent, transfer agent, or
Registrar.
ARTICLE VII
Holders' Lists and Reports by Trustee and Issuer
SECTION 7.01. Issuer to Furnish Trustee Names and Addresses of
Holder. The Issuer will furnish or cause to be furnished to the Trustee (a)
semi-annually, not more than 15 days after each Regular Record Date, a list, in
such form as the Trustee may reasonably require, of the names and addresses of
the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Issuer of any such request, a list
of similar form and content as of a date not more than 15 days prior to
the time such list is furnished;
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excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 7.02. Preservation of Information; Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Issuer and the Trustee that neither the Issuer nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 7.03. Reports by Trustee. (a) Within 30 days after November
1 of each year, commencing with the first November 1 following the first
issuance of Securities pursuant to Section 3.01, if required by Section 3.13(a)
of the Trust Indenture Act, the Trustee shall transmit, pursuant to Section
3.13(c) of the Trust Indenture Act, a brief report dated as of such November 1
with respect to any of the events specified in said Section 3.13(a) which may
have occurred since the later of the immediately preceding November 1 and the
date of this Indenture.
(b) The Trustee shall transmit the reports required by Section
3.13(b) of the Trust Indenture Act and Section 6.02 hereof at the times
specified therein.
(c) Reports pursuant to this Section shall be transmitted in the
manner and to the persons required by Sections 3.13(c) and 3.13(d) of the Trust
Indenture Act.
(d) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Issuer. The
Issuer
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will promptly notify the Trustee when the Securities are listed on any stock
exchange.
SECTION 7.04. Reports by Issuer and Guarantor. Each of the Guarantor
and the Issuer shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act and in the manner set forth in
Section 10.18.
SECTION 7.05. Officers' Certificate with Respect to Change in
Interest Rates. Within five days after any Step-Up or Step-Down Date, the Issuer
shall deliver an Officers' Certificate to the Trustee stating the new interest
rate and the date on which it became effective.
ARTICLE VIII
Merger, Consolidation, Etc.
SECTION 8.01. Mergers, Consolidations and Certain Sales of Assets.
Neither the Guarantor nor the Issuer may, in a single transaction or a series of
related transactions, (i) consolidate with or merge into any other Person or
permit any other Person to consolidate with or merge into the Guarantor or the
Issuer, or (ii) directly or indirectly, transfer, sell, lease or otherwise
dispose of all or substantially all of its assets to any other Person, unless:
(1) in a transaction in which the Guarantor or the Issuer, as
applicable, does not survive or in which the Guarantor or the Issuer
sells, leases or otherwise disposes of all or substantially all of its
assets to any other Person (other than, in any such case, the Guarantor or
the Issuer), the successor entity to the Guarantor or the Issuer is
organized under the laws of the United States of America or any State
thereof or the District of Columbia, the British Virgin Islands, Cayman
Islands, The Netherlands, Ireland or Jersey and shall expressly assume, by
a supplemental indenture executed and delivered to the Trustee in form
satisfactory to the Trustee, all of the Guarantor's or the Issuer's
obligations under the Indentures;
(2) immediately before and after giving effect to such transaction
and treating any Debt which becomes an obligation of the Guarantor or a
Subsidiary as a result of such transaction as having been Incurred by the
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Guarantor or such Subsidiary at the time of the transaction, no Event of
Default or event that with the passing of time or the giving of notice, or
both, would constitute an Event of Default shall have occurred and be
continuing;
(3) immediately after giving effect to such transaction, the
Consolidated Net Worth of the Guarantor (or other successor entity to the
Guarantor) is equal to or greater than that of the Guarantor immediately
prior to the transaction;
(4) if, as a result of any such transaction, property or assets of
the Guarantor or any Subsidiary would become subject to a Lien prohibited
by Section 10.15, the Guarantor or the successor entity to the Guarantor
shall have secured the Securities as required by said covenant; and
(5) in the event that the continuing Person is incorporated in a
jurisdiction other than the United States or the jurisdiction in which
such Person was incorporated immediately prior to such transaction, (A)
the Issuer delivers to the Trustee an Opinion of Counsel stating that the
obligations of the continuing Person under the Indenture are enforceable
under the laws of the new jurisdiction of its incorporation to the same
extent as the obligations of the Issuer or the Guarantor, as the case may
be, under the Indenture immediately prior to such transaction; (B) the
continuing Person agrees in writing to submit to jurisdiction and appoints
an agent for the service of process, each under terms substantially
similar to the terms contained in the Indenture with respect to the Issuer
or the Guarantor, as the case may be; (C) the continuing Person agrees in
writing to pay Additional Amounts as provided under this Indenture under
Section 10.09 with respect to the Issuer or the Guarantor, as the case may
be, except that such Additional Amount shall relate to any withholding tax
whatsoever regardless of any change of law (subject to exceptions
substantially similar to those contained in Section 10.09); (D) the Board
of Directors of the Guarantor determines in good faith that such
transaction will have no material adverse effect on any Holder and a Board
Resolution to that effect is delivered to the Trustee; and (E) the
principal purpose of the continuing Person being incorporated in such
jurisdiction is to obtain tax benefits for the
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Guarantor, the Issuer, their direct and indirect stockholders or the
Holders.
SECTION 8.02. Successor Substituted. Upon any consolidation of the
Issuer with, or merger of the Issuer with or into, any other Person or any
conveyance, transfer or lease of the properties and assets of the Issuer
substantially as an entirety in accordance with Section 8.01, the successor
Person formed by such consolidation or into which the Issuer is merged or to
which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Issuer under
this Indenture with the same effect as if such successor Person had been named
as the Issuer herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE IX
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Issuer and the Guarantor, each when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Issuer or
the Guarantor and the assumption by any such successor of the covenants of
the Issuer or the Guarantor herein and in the Securities; or
(2) to add to the covenants of the Issuer or the Guarantor for the
benefit of the Holders, or to surrender any right or power herein
conferred upon the Issuer or the Guarantor; or
(3) to secure the Securities pursuant to the requirements of Section
10.15 or otherwise; or
(4) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to comply with any requirement of the
Commission in order to effect qualification of this Indenture under the
Trust Indenture Act in connection with the issuance of Exchange Securities
or Registered Securities or
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thereafter to maintain the qualification of this Indenture under the
Trust Indenture Act; or
(5) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions
of this Indenture; provided that such action pursuant to this Clause (5)
shall not adversely affect the interests of the Holders in any material
respect; or
(6) to provide for uncertificated Securities in addition to or in
place of certified Securities.
SECTION 9.02. Supplemental Indentures with Consent of Holders. With
the written consent of the Holders of not less than a majority in aggregate
principal amount at maturity of the Outstanding Securities, by Act of said
Holders delivered to the Issuer and the Trustee, and consistent with Section
5.13, the Issuer and the Guarantor, each when authorized by a Board Resolution,
and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders under this Indenture; provided, however, that
no such supplemental indenture shall, without the written consent of the Holder
of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable thereon, or
change the coin or currency in which, any Security or any premium or
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date) or, in
the case of an Offer to Purchase which has been made, on or after the
applicable Purchase Date, or
(2) reduce the percentage in principal amount at maturity of the
Outstanding Securities, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions
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of this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 5.13 or
Section 10.20, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, or
(4) following the making of an Offer with respect to an Offer to
Purchase pursuant to Sections 10.13 or 10.17, modify the provisions of
this Indenture with respect to such Offer to Purchase in a manner
materially adverse to such Holder, or
(5) release the Guarantor from its Securities Guarantee.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the execution
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
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SECTION 9.06. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Issuer shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Issuer, to any
such supplemental indenture may be prepared and executed by the Issuer and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
ARTICLE X
Covenants
SECTION 10.01. Payment of Principal, Premium and Interest. The
Issuer will duly and punctually pay the principal of and premium, if any, and
interest on the Securities in accordance with the terms of the Securities and
this Indenture.
SECTION 10.02. Maintenance of Office or Agency. The Issuer will
maintain in the Borough of Manhattan, the City of New York, New York, an office
or agency where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Issuer in respect of the Securities and this
Indenture may be served. The Issuer will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Issuer shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Issuer hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Issuer may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, the City of New
York, New York) where the Securities may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Issuer of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York, New York for such purposes. The Issuer will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
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SECTION 10.03. Money for Security Payments To Be Held in Trust. If
the Issuer shall at any time act as its own Paying Agent, it will, on or before
each due date of the principal of (and premium, if any) or interest on any of
the Securities, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee in
writing of its action or failure so to act. As provided in Section 5.04, upon
any bankruptcy or reorganization proceeding relative to the Issuer, the Trustee
shall serve as the Paying Agent for the Securities.
Whenever the Issuer shall have one or more Paying Agents, it will,
prior to each due date of the principal of (and premium, if any) or interest on
any Securities, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Issuer will promptly
notify the Trustee in writing of its action or failure so to act. Upon any
bankruptcy or reorganization proceeding relative to the Issuer, the Trustee
shall serve as the Paying Agent for the Securities.
The Issuer will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee written notice of any default by the Issuer (or
any other obligor upon the Securities) in the making of any payment of
principal (and premium, if any) or interest;
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent; and
(4) acknowledge, accept and agree to comply in all respects with the
provisions of this Indenture relating
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to the duties, rights and obligations of such Paying Agent.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Issuer or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Issuer or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Issuer, in trust for the payment of the principal of (and premium,
if any) or interest on any Security and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall be paid to the Issuer on Issuer Request, or (if then held by the Issuer)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Issuer as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Issuer cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in the Borough of Manhattan, the City of New York, New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Issuer.
SECTION 10.04. Existence. Subject to Article Eight, the Guarantor
will do or cause to be done all things necessary to preserve and keep in full
force and effect the existence, rights (charter and statutory) and franchises of
the Guarantor, the Issuer and each of the Restricted Subsidiaries; provided,
however, that the Guarantor shall not be required to preserve any such right or
franchise if the Guarantor shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Guarantor, the Issuer or
the Restricted Subsidiaries and that the loss thereof is not disadvantageous in
any material respect to the Holders.
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SECTION 10.05. Maintenance of Properties. The Guarantor will cause
all properties used or useful in the conduct of its business or the business of
the Issuer or any Restricted Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Guarantor
may be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Guarantor from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the reasonable judgment of the Guarantor, desirable in the conduct of its
business or the business of the Issuer or any Restricted Subsidiary and not
disadvantageous in any material respect to the Holders.
SECTION 10.06. Payment of Taxes and Other Claims. The Guarantor will
pay or discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all material taxes, assessments and governmental charges levied
or imposed upon the Guarantor or the Issuer or any Restricted Subsidiaries or
upon the income, profits or property of the Guarantor or the Issuer or any
Restricted Subsidiaries, and (2) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of the
Guarantor or the Issuer or any Restricted Subsidiaries; provided, however, that
the Guarantor shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
SECTION 10.07. Maintenance of Insurance. The Guarantor shall, and
shall cause the Issuer and the Restricted Subsidiaries to, keep at all times all
of their properties which are of an insurable nature insured against loss or
damage with insurers believed by the Guarantor to be responsible to the extent
that property of similar character is usually so insured by corporations
similarly situated and owning like properties in accordance with good business
practice.
SECTION 10.08. Limitation on Consolidated Debt. The Guarantor may
not, and may not permit any Restricted Subsidiary of the Guarantor to, Incur any
Debt (other than the Securities and the Securities Guarantee) unless the ratio
of (i) the aggregate consolidated principal amount of Debt (which is defined to
include the accreted value of any Debt issued at a discount) of the Guarantor
outstanding as of the most recent available quarterly or annual balance sheet,
after giving pro forma effect to the Incurrence of
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such Debt and any other Debt Incurred since such balance sheet date and the
receipt and application of the proceeds thereof, to (ii) four (4) times the
Consolidated Cash Flow Available for Fixed Charges for the most recent fiscal
quarter next preceding the Incurrence of such Debt for which consolidated
financial statements are available, determined on a pro forma basis as if any
such Debt had been Incurred and the proceeds thereof had been applied at the
beginning of such recent fiscal quarter, would be less than 7.0 to 1.0 for such
period.
Notwithstanding the foregoing limitation, the Guarantor and any
Restricted Subsidiary may Incur the following:
(i) Debt under Credit Facilities in an aggregate principal amount at
any one time not to exceed $200 million, and any renewal, extension,
refinancing or refunding thereof in an amount which, together with any
principal amount remaining outstanding under all Credit Facilities, does
not exceed the aggregate principal amount outstanding under all Credit
Facilities immediately prior to such renewal, extension, refinancing or
refunding;
(ii) Debt owed by the Guarantor to any Restricted Subsidiary of the
Guarantor or Debt owed by a Restricted Subsidiary of the Guarantor to the
Guarantor or a Restricted Subsidiary of the Guarantor; provided, however,
that upon either (x) the transfer or other disposition by such Restricted
Subsidiary or the Guarantor of any Debt so permitted to a Person other
than the Guarantor or another Restricted Subsidiary of the Guarantor or
(y) such Restricted Subsidiary ceasing to be a Restricted Subsidiary, the
provisions of this clause (ii) shall no longer be applicable to such Debt
and such Debt shall be deemed to have been Incurred at the time of such
transfer or other disposition;
(iii) Debt Incurred to renew, extend, refinance or refund (each, a
"refinancing") (x) Debt outstanding at the date hereof (after giving
effect to the Equity Clawback) or (y) Incurred pursuant to the first
paragraph of this Section, or clause (vi) or (vii) of this paragraph or
(z) the Securities issued on the date hereof or Securities exchanged
therefore, in each case, in an aggregate principal amount not to exceed
the aggregate principal amount of and accrued interest on the Debt so
refinanced plus the amount of any premium required to be paid in
connection with such refinancing pursuant to the terms of the Debt so
refinanced or the amount of any premium reasonably determined by the
Guarantor as necessary to accomplish such refinancing
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by means of a tender offer or privately negotiated repurchase, plus the
expenses of the Guarantor or the Restricted Subsidiary effecting such
refinancing incurred in connection with such refinancing; provided,
however, that Debt the proceeds of which are used to refinance the
Securities or Debt which is pari passu to the Securities and the Security
Guarantee or Debt which is subordinate in right of payment to the
Securities and the Security Guarantee shall only be permitted if (A) in
the case of any refinancing of the Securities or Debt which is pari passu
to the Securities and the Security Guarantee, the refinancing Debt is made
pari passu or subordinated to the Securities and the Security Guarantee,
and, in the case of any refinancing of Subordinated Debt, the refinancing
Debt constitutes Subordinated Debt and (B) in any case, the refinancing
Debt by its terms, or by the terms of any agreement or instrument pursuant
to which such Debt is issued, does not have a final stated maturity prior
to the final stated maturity of the Debt being refinanced, and the Average
Life of such new Debt is at least equal to the remaining Average Life of
the Debt being refinanced (assuming that such Debt being refinanced had a
final stated maturity three months later than its actual final stated
maturity);
(iv) Debt in an aggregate principal amount not in excess of (A) two
(2) times the aggregate amount of the Guarantor's Incremental Paid-in
Capital minus
(B) $165 million;
(v) Debt in an aggregate principal amount not in excess of 80% of
the aggregate amount of accounts receivable set forth on the most recent
unaudited quarterly or audited annual financial statements of the
Guarantor and its consolidated subsidiaries filed with the Commission;
(vi) Purchase Money Debt, which is incurred for the construction,
acquisition and improvement of Telecommunications Assets, provided that
the amount of such Purchase Money Debt does not exceed the cost of the
construction, acquisition or improvement of the applicable
Telecommunications Assets;
(vii) Debt consisting of Permitted Interest Rate and
Currency Protection Agreements; and
(viii) Debt not otherwise permitted to be Incurred pursuant to
clauses (i) through (vii) above, which, together with any other
outstanding Debt Incurred pursuant to this clause (viii), has an aggregate
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principal amount not in excess of $50 million at any time outstanding.
For purposes of determining compliance with this Section, with
respect to any item of Debt, (x) in the event that such item of Debt meets the
criteria of more than one of the types of Debt the Guarantor or a Restricted
Subsidiary is permitted to Incur pursuant to the foregoing clauses (i) through
(viii), the Guarantor shall have the right, in its sole discretion, to classify
such item of Debt and shall only be required to include the amount and type of
such Debt under the clause permitting the Debt as so classified and (y) any
other obligation of the obligor on such Debt (or of any other Person who could
have Incurred such Debt under this Section) arising under any Guarantee, Lien or
letter of credit supporting such Debt shall be disregarded to the extent that
such Guarantee, Lien or letter of credit secures the principal amount of such
Debt.
For purposes of determining compliance with any Dollar-denominated
restriction on the Incurrence of Debt denominated in a foreign currency, the
Dollar-equivalent principal amount of such foreign-currency-denominated Debt
Incurred pursuant thereto shall be calculated based on the relevant currency
exchange rate in effect on the date that such foreign-currency-denominated Debt
was Incurred, in the case of term debt, or first committed, in the case of
revolving credit debt; provided that (x) the Dollar- equivalent principal amount
of any such Debt outstanding on the date hereof shall be calculated based on the
relevant currency exchange rate in effect on the date hereof and (y) if such
Debt is Incurred to refinance other Debt denominated in a foreign currency, and
such refinancing would cause the applicable Dollar-denominated restriction to be
exceeded if calculated at the relevant currency exchange rate in effect on the
date of such refinancing, such Dollar denominated restriction shall be deemed
not to have been exceeded so long as the principal amount of such refinancing
Debt does not exceed the principal amount of such Debt being refinanced. The
principal amount of any Debt Incurred to refinance other Debt, if Incurred in a
different currency from the Debt being refinanced, shall be calculated based on
the currency exchange rate applicable to the currency in which such respective
Debt is denominated that is in effect on the date of such refinancing.
SECTION 10.09. Additional Amounts. Payments made by the Issuer or
the Guarantor pursuant to the Securities or the Securities Guarantee will be
made without withholding or deduction for taxes unless required by law. In the
event of (x) any change that becomes effective after the date hereof in the laws
of the U.K. or Bermuda or of any political subdivision or taxing authority
thereof or therein or any
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change in the interpretation or administration thereof or (y) a failure by the
Issuer to list and maintain a listing of the Securities on a "recognized stock
exchange" (within the meaning of Section 841 of the U.K. Income and Corporation
Taxes Act 1988) prior to the first date upon which interest is required to be
paid hereunder (a "Listing Failure"), the effect of which is to require the
withholding or deduction by the Issuer or the Guarantor pursuant to the
Securities or the Securities Guarantee, respectively, of any amount for taxes
that would not have been required to be withheld or deducted absent such change
or Listing Failure, as the case may be, the Issuer or the Guarantor will pay, to
the extent it may then lawfully do so, such additional amounts ("Additional
Amounts") as may be necessary in order that every net payment of the principal
of and interest on the Securities, after deduction for withholding for or on
account of any future tax, assessment or other governmental charge will not be
less than the amount provided for in the Securities to be then due and payable;
provided, however, that the foregoing obligation to pay Additional Amounts shall
not apply in respect of:
(i) any tax, withholding, assessment or other governmental charge
which would not have been imposed but for (x) the existence of any present
or former connection between such holder (or between a fiduciary, settlor,
beneficiary, member or shareholder of, or possessor of a power over, such
holder, if such holder is an estate, trust, partnership or corporation)
and the U.K. or Bermuda or any political subdivision or taxing authority
thereof including, without limitation, such holder (or such fiduciary,
settlor, beneficiary, member, shareholder or possessor) being or having
been a citizen or resident thereof or being or having been present or
engaged in trade or business therein or having or having had a permanent
establishment therein or (y) the presentation of a Security or a
Securities Guarantee (where presentation is required) for payment on a
date more than 30 days after the date on which such payment became due and
payable or the date on which payment thereof is duly provided for,
whichever occurs later, except for Additional Amounts with respect to
Taxes that would have been imposed had the holder presented the Security
for payment within such 30-day period;
(ii) any estate, inheritance, gift, sale, transfer or personal
property tax;
(iii) any tax, assessment or other governmental charge that is
withheld by reason of the failure to timely comply by the holder or the
beneficial owner of the Security with a request in writing of the Issuer
or
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the Guarantor (which request shall be furnished to the Trustee) (x) to
provide information concerning the nationality, residence or identity of
the holder or such beneficial owner or (y) to make any declaration or
other similar claim or satisfy any information or reporting requirement,
which, in the case of (x) or (y), is required or imposed by a statute,
treaty, regulation or administrative practice of the taxing or domicile
jurisdiction as a precondition to exemption from or reduction of all or
part of such tax, assessment or other governmental charge; provided,
however, that this clause (iii) shall not apply to limit the Issuer's or
Guarantor's obligation to pay Additional Amounts if the completing and
filing of the information described in subclause (x) or the declaration or
other claim described in subclause (y) would be materially more onerous in
form, in procedure or in substance of information disclosed, in comparison
to the information reporting requirements imposed under U.S. tax law with
respect to Forms 1001, W-8 and W-9; or
(iv) any tax, withholding, assessment or other governmental charge
resulting from a Listing Failure with respect to any Security issued in
the form of a Definitive Security pursuant to the terms of the Deposit
Agreement and this Indenture; or
(v) any combination of items (i), (ii), (iii) and (iv) above; nor
shall Additional Amounts be paid with respect to any payment of the
principal of, or any interest on, any Security or Securities Guarantee to
any holder who is not the sole beneficial owner of such Security or
Securities Guarantee or is a fiduciary or partnership, but only to the
extent that a beneficial owner, a beneficiary or a settlor with respect to
a fiduciary or a member of the partnership would not have been entitled to
the payment of the Additional Amount had the beneficial owner,
beneficiary, settlor or member of such partnership received directly its
beneficial or distributive share of the payment.
At least 30 days prior to each date on which any payment under or
with respect to the Securities is due and payable, if the Issuer or the
Guarantor will be obligated to pay Additional Amounts with respect to such
payment, the Issuer or the Guarantor will deliver to the Trustee an Officer's
Certificate stating the fact that such Additional Amounts will be payable and
the amounts so payable and will set forth such other information necessary to
enable the Trustee to pay such Additional Amounts to Holders on the payment
date. Whenever in this Indenture there is mentioned, in any context, the payment
of principal (and
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premium, if any), Redemption Price, interest or any other amount payable under
or with respect to any Security, such mention shall be deemed to include mention
of the payment of Additional Amounts to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof.
SECTION 10.10. Limitation on Restricted Payments. The Guarantor (i)
may not, and will not permit any Restricted Subsidiary, directly or indirectly,
to declare or pay any dividend, or make any distribution, in respect of its
Capital Stock or to the holders thereof, excluding (x) any dividends or
distributions payable solely in shares of its Capital Stock (other than
Disqualified Stock) or in options, warrants or other rights to acquire its
Capital Stock (other than Disqualified Stock), (y) any dividends paid to the
Guarantor or a Restricted Subsidiary, or (z) pro rata dividends paid on shares
of Common Stock of Restricted Subsidiaries, (ii) may not, and may not permit any
Restricted Subsidiary to, purchase, redeem, or otherwise retire or acquire for
value (a) any Capital Stock of the Guarantor or any Related Person of the
Guarantor (other than a permitted refinancing) or (b) any options, warrants or
rights to purchase or acquire shares of Capital Stock of the Guarantor or any
Related Person of the Guarantor or any securities convertible or exchangeable
into shares of Capital Stock of the Guarantor or any Related Person of the
Guarantor (other than a permitted refinancing), (iii) may not make, or permit
any Restricted Subsidiary to make, any Investment, except for Permitted
Investments, and (iv) may not, and may not permit any Restricted Subsidiary to,
redeem, defease, repurchase, retire or otherwise acquire or retire for value,
prior to any scheduled maturity, repayment or sinking fund payment, Debt of the
Guarantor or the Issuer which is subordinate in right of payment to the
Securities or the Securities Guarantee (each of clauses (i) through (iv) being a
"Restricted Payment") if: (1) an Event of Default, or an event that with the
passing of time or the giving of notice, or both, would constitute an Event of
Default, shall have occurred and be continuing, or (2) except with respect to
Investments, upon giving effect to such Restricted Payment, the Guarantor could
not Incur at least $1.00 of additional Debt pursuant to the first paragraph of
Section 10.08, or (3) upon giving effect to such Restricted Payment, the
aggregate of all Restricted Payments from the date hereof exceeds the sum of:
(a)(x) Consolidated Cash Flow Available for Fixed Charges since the end of the
last full fiscal quarter prior to the date hereof through the last day of the
last full fiscal quarter ending immediately preceding the date of such
Restricted Payment (the "Calculation Period") minus (y) 1.5 times Consolidated
Interest Expense for the Calculation Period plus (b) an amount equal to the net
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reduction in Investments (other than reductions in Permitted Investments) in any
Person resulting from payments of interest on Debt, dividends, repayments of
loans or advances, or other transfers of assets, in each case to the Guarantor
or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any
such Investment (except, in each case, to the extent any such payment or
proceeds are included in the calculation of Consolidated Cash Flow Available for
Fixed Charges for the Calculation Period), or from redesignations of
Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as
provided in the definition of Investment), not to exceed, in each case, the
amount of Investments previously made by the Guarantor or any Restricted
Subsidiary in such Person or Unrestricted Subsidiary plus (c) an amount equal to
the aggregate net proceeds received after the date hereof, including the fair
market value of property other than cash (determined in good faith by the Board
of Directors as evidenced by a resolution of the Board of Directors filed with
the Trustee), as capital contributions to the Guarantor or from the issuance
(other than to a Subsidiary) of Capital Stock (other than Disqualified Stock) of
the Guarantor and warrants, rights or options on Capital Stock (other than
Disqualified Stock) of the Guarantor and the principal amount at maturity of
Debt of the Guarantor or any Restricted Subsidiary that has been converted into
Capital Stock (other than Disqualified Stock and other than by a Subsidiary) of
the Guarantor after the date hereof plus (d) $30 million.
Notwithstanding the foregoing, (i) the Guarantor may pay any
dividend on Capital Stock of any class of the Guarantor within 60 days after the
declaration thereof if, on the date when the dividend was declared, the
Guarantor could have paid such dividend in accordance with the foregoing
provisions, (ii) the Guarantor may make acquisitions of a minority equity
interest in entities engaged in the Telecommunications Business; provided that
(A) the acquisition of a majority equity interest in such entities is not then
permitted or practicable under applicable law without regulatory consent or
change of law, (B) the Board of Directors of the Guarantor determines in good
faith that there is a substantial probability that such approval or change of
law will be obtained, (C) the Guarantor or one of its Restricted Subsidiaries
has the right to acquire Capital Stock representing a majority of the voting
power of the Voting Stock of such entity upon receipt of regulatory consent or
change of law and does acquire such Voting Stock reasonably promptly upon
receipt of such consent or change of law and (D) in the event that such consent
or change of law has not been obtained within 18 months of funding such
Investment, the Guarantor or one of its Restricted Subsidiaries has the right to
sell such minority equity interest to the Person from whom it acquired
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such interest, for consideration consisting of the consideration originally paid
by the Guarantor and its Restricted Subsidiaries for such minority equity
interest; (iii) the Guarantor may repurchase any shares of its Common Stock or
options to acquire its Common Stock from Persons who were formerly directors,
officers or employees of the Guarantor or any of its Subsidiaries, provided that
the aggregate amount of all such repurchases made pursuant to this clause (iii)
shall not exceed $6 million, plus the aggregate cash proceeds received by the
Guarantor since the date hereof from issuances of its Common Stock or options to
acquire its Common Stock to directors, officers and employees of the Guarantor
or any of its Subsidiaries, (v) the Guarantor or a Restricted Subsidiary may
redeem, defease, repurchase, retire or otherwise acquire or retire for value
Debt of the Guarantor or the Issuer which is subordinated in right of payment to
the Securities or the Security Guarantees, as the case may be, in exchange for,
or out of the proceeds of a substantially concurrent sale (other than to a
Subsidiary) of, Capital Stock (other than Disqualified Stock of the Guarantor)
or in a refinancing that satisfies the requirements of clause (iii) of the
second paragraph of Section 10.08 and (vi) the Guarantor and its Subsidiaries
may retire or repurchase any Capital Stock of the Guarantor or of any Subsidiary
of the Guarantor in exchange for, or out of the proceeds of the substantially
concurrent sale (other than to a Subsidiary of the Guarantor) of, Capital Stock
(other than Disqualified Stock) of the Guarantor or any Subsidiary.
SECTION 10.11. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries. The Guarantor may not, and may not permit any
Restricted Subsidiary to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or restriction on
the ability of any Restricted Subsidiary of the Guarantor (i) to pay dividends
(in cash or otherwise) or make any other distributions in respect of its Capital
Stock owned by the Guarantor or any other Restricted Subsidiary of the Guarantor
or pay any Debt or other obligation owed to the Guarantor or any other
Restricted Subsidiary; (ii) to make loans or advances to the Guarantor or any
other Restricted Subsidiary; or (iii) to transfer any of its property or assets
to the Guarantor or any other Restricted Subsidiary.
Notwithstanding the foregoing, the Guarantor may, and may permit any
Restricted Subsidiary to, suffer to exist any such encumbrance or restriction
(a) pursuant to any agreement in effect on the date hereof; (b) pursuant to an
agreement relating to any Acquired Debt, which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than
the Person so
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acquired and was not Incurred in anticipation of such Person being acquired; (c)
pursuant to an agreement effecting a renewal, refunding or extension of Debt
Incurred pursuant to an agreement referred to in clause (a) or (b) above;
provided, however, that the provisions contained in such renewal, refunding or
extension agreement relating to such encumbrance or restriction are no more
restrictive in any material respect than the provisions contained in the
agreement the subject thereof; (d) in the case of clause (iii) in the above
paragraph, contained in any security agreement (including a Capital Lease
Obligation) securing Debt of the Guarantor or a Restricted Subsidiary otherwise
permitted hereunder, but only to the extent such restrictions restrict the
transfer of the property subject to such security agreement; (e) in the case of
clause (iii) in the above paragraph, with respect to customary nonassignment
provisions entered into in the ordinary course of business in leases and other
agreements; (f) with respect to a Restricted Subsidiary of the Guarantor imposed
pursuant to an agreement which has been entered into for the sale or disposition
of all or substantially all of the Capital Stock or assets of such Restricted
Subsidiary, provided that (x) the consummation of such transaction would not
result in an Event of Default or an event that, with the passing of time or the
giving of notice or both, would constitute an Event of Default, (y) such
restriction terminates if such transaction is not consummated and (z) the
consummation or abandonment of such transaction occurs within one year of the
date such agreement was entered into; (g) pursuant to applicable law or required
by any regulatory authority having jurisdiction over the Guarantor or any
Subsidiary; (h) pursuant to this Indenture and the Securities; (i) constituting
a Lien otherwise permitted pursuant to Section 10.15; and (j) other encumbrances
or restrictions that are not materially more restrictive than customary
provisions in comparable financings provided that each of the Issuer and the
Guarantor provides an Officer's Certificate to the Trustee to the effect that in
the opinion of the signers of such certificate such encumbrances or restrictions
will not materially impact the Issuers' and the Guarantors' ability to make
scheduled payments of interest and principal under the Securities.
SECTION 10.12. Limitation on Transactions with Affiliates and
Related Persons. The Guarantor will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, enter into, renew or extend any
transaction (including, without limitation, the purchase, sale, lease or
exchange of property or assets, or the rendering of any service) with any
Related Person or with any Affiliate of the Guarantor or any Restricted
Subsidiary, except upon fair and reasonable terms no less favorable to the
Guarantor or such Restricted Subsidiary than could be obtained, at the
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time of such transaction or, if such transaction is pursuant to a written
agreement, at the time of the execution of the agreement providing therefor, in
a comparable arm's-length transaction with a Person that is not a Related Person
or an Affiliate.
The foregoing limitation does not limit, and shall not apply to (i)
transactions (A) approved by a majority of the disinterested members of the
Board of Directors or (B) for which the Guarantor or a Restricted Subsidiary
delivers to the Trustee a written opinion of a nationally recognized investment
banking firm (or a subsidiary or affiliate thereof) in the United States stating
that the transaction is fair to the Guarantor or such Restricted Subsidiary from
a financial point of view; (ii) any transaction solely between the Guarantor and
any of its Wholly Owned Restricted Subsidiaries or solely between Wholly Owned
Restricted Subsidiaries; and (iii) any payments or other transactions pursuant
to any tax-sharing agreement between the Guarantor and any other Person with
which the Guarantor files a consolidated tax return or with which the Guarantor
is part of a consolidated group for tax purposes. Notwithstanding the foregoing,
any transaction covered by the first paragraph of this Section and not covered
by clauses (ii) through (iii) of this paragraph must be approved or determined
to be fair in the manner provided for in clause (i)(A) or (B) above unless the
aggregate amount of such transaction is less than $5 million in value.
SECTION 10.13. Limitation on Asset Dispositions. (a) The Guarantor
may not, and may not permit any Restricted Subsidiary of the Guarantor to, make
any Asset Disposition in one or more related transactions unless: (i) the
Guarantor or the Restricted Subsidiary, as the case may be, receives
consideration for such disposition at least equal to the fair market value for
the assets sold or disposed of as determined by the Board of Directors in good
faith and, in the case of an Asset Disposition in an amount greater than $5
million, evidenced by a resolution of the Board of Directors filed with the
Trustee; and (ii) at least 75% of the consideration for such disposition
consists of (1) cash or readily marketable cash equivalents or the assumption of
Debt of the Guarantor (other than Debt that is subordinated to the Securities)
or of a Restricted Subsidiary and release from all liability on the Debt
assumed, or (2) Telecommunications Assets. In the event and to the extent that
the Net Available Proceeds received by the Guarantor or any of its Restricted
Subsidiaries from one or more Asset Dispositions occurring on or after the date
hereof in any period of 12 consecutive months exceed 10% of Consolidated
Tangible Assets (determined as of the date closest to the commencement of such
12-month period for which a consolidated balance sheet of the Guarantor and its
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subsidiaries have been filed with the Commission), then the Guarantor or the
Issuer shall or shall cause the relevant Restricted Subsidiary to (i) within 12
months after the date Net Available Proceeds so received exceed 10% of
Consolidated Tangible Assets (A) apply an amount equal to such excess Net
Available Proceeds to permanently repay unsubordinated Debt of the Guarantor or
any Restricted Subsidiary providing a Subsidiary Guarantee pursuant to Section
10.14 or Debt of any other Restricted Subsidiary, in each case owing to a Person
other than the Guarantor or any of its Restricted Subsidiaries or (B) invest an
equal amount, or the amount not so applied pursuant to clause (A) (or enter into
a definitive agreement committing to so invest within 12 months after the date
of such agreement), in Telecommunications Assets and (ii) apply (no later than
the end of the 12-month period referred to in clause (i)) such excess Net
Available Proceeds (to the extent not applied pursuant to clause (i)) as
provided in the paragraph (b) below. The amount of such excess Net Available
Proceeds required to be applied (or to be committed to be applied) during such
12-month period as set forth in clause (i) of the preceding sentence and not
applied as so required by the end of such period shall constitute "Excess
Proceeds".
(b) If, as of the first day of any calendar month, the aggregate
amount of Excess Proceeds not theretofore subject to an Offer to Purchase
pursuant to this Section totals at least $10 million, the Issuer shall repay any
Debt of the Guarantor or any Restricted Subsidiary to the extent the terms of
such Debt require repayment prior to an Offer to Purchase being made hereunder
(including by way of an offer to purchase to the holders of such Debt, if so
required). To the extent there are Excess Proceeds after such repayment (or
offer to purchase), the Issuer must commence, not later than the fifteenth
Business Day of such month (or if later, the fifteenth Business Day after the
expiration of any such required offer to purchase), and consummate an Offer to
Purchase from the holders of the Securities on a pro rata basis an aggregate
principal amount of Securities on the relevant Payment Date equal to the Excess
Proceeds on such date not applied or to be applied pursuant to the first
sentence of this paragraph (b), at a purchase price equal to 100% of the
principal amount of the Securities, plus, in each case, accrued interest (if
any) to but excluding the Payment Date and, to the extent required by the terms
thereof, any other Debt of the Guarantor that is pari passu with the Securities
at a price no greater than 100% of the principal amount thereof plus accrued
interest to but excluding the date of purchase (or 100% of the accreted value in
the case of original issue discount Debt). To the extent there are any remaining
Excess Proceeds following the completion of the Offer to Purchase, the
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Issuer must repay such other Debt of the Guarantor or Debt of a Restricted
Subsidiary of the Guarantor, to the extent permitted under the terms thereof
and, to the extent there are any remaining Excess Proceeds after such repayment,
the Issuer shall apply such amount to any other use as determined by the Issuer
which is not otherwise prohibited by this Indenture.
SECTION 10.14. Limitation on Issuances and Sales of Capital Stock of
Restricted Subsidiaries. The Guarantor may not, and may not permit any
Restricted Subsidiary of the Guarantor to, issue, transfer, convey, sell or
otherwise dispose of any shares of Capital Stock of a Restricted Subsidiary of
the Guarantor or securities convertible or exchangeable into, or options,
warrants, rights or any other interest with respect to, Capital Stock of a
Restricted Subsidiary of the Guarantor to any Person other than the Guarantor or
a Wholly Owned Restricted Subsidiary of the Guarantor except (i) a sale of all
of the Capital Stock of such Restricted Subsidiary owned by the Guarantor and
any Restricted Subsidiary of the Guarantor that complies with Section 10.13
above to the extent such Section applies, (ii) if required, the issuance,
transfer, conveyance, sale or other disposition of directors' qualifying shares,
(iii) Disqualified Stock issued in exchange for, or upon conversion of, or the
proceeds of the issuance of which are used to redeem, refinance, replace or
refund shares of Disqualified Stock of such Restricted Subsidiary; provided that
the amounts of the redemption obligations of such Disqualified Stock shall not
exceed the amounts of the redemption obligations of, and such Disqualified Stock
shall have redemption obligations no earlier than those required by, the
Disqualified Stock being exchanged, converted, redeemed, refinanced, replaced or
refunded and (iv) issuances of not more than 49% of the voting stock and equity
interest in a Restricted Subsidiary engaged in the Telecommunications Business
(1) in connection with the acquisition of such Restricted Subsidiary or of
Telecommunications Assets acquired or to be acquired by the Guarantor or a
Restricted Subsidiary or (2) to a Strategic Investor; provided, that the
Guarantor complies with Section 10.13 above to the extent such Section applies.
SECTION 10.15. Limitation on Liens. The Guarantor may not, and may
not permit any Restricted Subsidiary of the Guarantor to, Incur or suffer to
exist any Lien on or with respect to any property or assets now owned or
hereafter acquired to secure any Debt without making, or causing such Restricted
Subsidiary to make, effective provision for securing the Securities (x) equally
and ratably with such Debt as to such property for so long as such Debt will be
so secured or (y) in the event such Debt is Debt of the Guarantor which is
subordinate in right of
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payment to the Securities, prior to such Debt as to such property for so long as
such Debt will be so secured.
The foregoing restrictions shall not apply to: (i) Liens existing on
the date hereof and securing Debt outstanding on the date hereof; (ii) Liens
securing Debt outstanding or available under all Credit Facilities to the extent
such Debt is permitted under clause (i) of the second paragraph of Section
10.08; (iii) Liens in favor of the Guarantor or any Restricted Subsidiary of the
Guarantor; (iv) Liens on real or personal property of the Guarantor or a
Restricted Subsidiary of the Guarantor acquired, constructed or constituting
improvements made after the date of original issuance of the Securities to
secure Purchase Money Debt which is Incurred for the construction, acquisition
and improvement of Telecommunications Assets and is otherwise permitted under
this Indenture; provided, however, that (a) the principal amount of any Debt
secured by such a Lien does not exceed 100% of such purchase price or cost of
construction or improvement of the property subject to such Liens, (b) such Lien
attaches to such property prior to, at the time of or within 180 days after the
acquisition, completion of construction or commencement of operation of such
property and (c) such Lien does not extend to or cover any property other than
the specific item of property (or portion thereof) acquired, constructed or
constituting the improvements made with the proceeds of such Purchase Money
Debt; (v) Liens to secure Acquired Debt; provided, however, that (a) such Lien
attaches to the acquired asset prior to the time of the acquisition of such
asset and (b) such Lien does not extend to or cover any other asset; (vi) Liens
to secure Debt Incurred to extend, renew, refinance or refund (or successive
extensions, renewals, refinancings or refundings), in whole or in part, Debt
secured by any Lien referred to in the foregoing clauses (i), (ii), (iv) and (v)
so long as the principal amount of Debt so secured is not increased except as
otherwise permitted under clause (iii) of the second paragraph of Section 10.08
and, in the case of Liens to secure Debt incurred to extend, renew, refinance or
refund Debt secured by a Lien referred to in the foregoing clause (i), (iv) or
(v), such Liens do not extend to any other property; and (vii) Permitted Liens.
SECTION 10.16. Limitation on Issuance of Guarantees of Debt by
Restricted Subsidiaries. The Guarantor will not permit any Restricted
Subsidiary, directly or indirectly, to incur any Guarantee of any Debt of the
Guarantor or the Issuer unless such Restricted Subsidiary simultaneously
executes and delivers a supplemental indenture providing for a Guarantee by such
Subsidiary of the Securities; any Subsidiary Guarantee by such Subsidiary of the
Securities (x) will be senior in
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right of payment to any Guarantee of Subordinated Debt of the Guarantor or the
Issuer and (y) will be pari passu with or senior to any Guarantee of any other
Debt of the Guarantor or the Issuer.
Notwithstanding the foregoing, any Subsidiary Guarantee may provide
by its terms that it shall be automatically and unconditionally released and
discharged upon (i) any sale, exchange or transfer, to any Person not an
Affiliate of the Guarantor, of all of the Guarantor's and each Restricted
Subsidiary's Capital Stock in, or all or substantially all the assets of, such
Restricted Subsidiary (which sale, exchange or transfer is not prohibited by
this Indenture) or (ii) the release or discharge of the Guarantee which resulted
in the creation of such Subsidiary Guarantee, except a discharge or release by
or as a result of payment under such Guarantee.
SECTION 10.17. Change of Control. (a) Unless the Issuer has
heretofore exercised its right to redeem all of the Securities in accordance
with the terms of this Indenture and the Securities, upon the occurrence of a
Change of Control (as defined below), each Holder of a Security shall have the
right to have such Security repurchased by the Issuer on the terms and
conditions precedent set forth in this Section 10.17 and otherwise in this
Indenture. The Issuer shall, within 30 days following the date of the
consummation of a transaction resulting in a Change of Control, mail an Offer
with respect to an Offer to Purchase all Outstanding Securities at a purchase
price equal to 101% of their principal amount plus accrued interest to but
excluding the date of purchase. Installments of interest (including Special
Interest) whose Stated Maturity is on or prior to the Purchase Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.07. Each Holder
shall be entitled to tender all or any portion of the Securities owned by such
Holder pursuant to the Offer to Purchase, subject to the requirement that any
portion of a Security tendered must be tendered in an integral multiple of
$1,000 principal amount at maturity.
(b) The Issuer and Trustee shall perform their respective
obligations specified in the Offer for the Offer to Purchase. Prior to the
Purchase Date, the Issuer shall (i) accept for payment Securities or portions
thereof tendered pursuant to the Offer, (ii) deposit with the Paying Agent (or,
if the Issuer is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.03) money sufficient to pay the purchase price of all
Securities or portions thereof so accepted and (iii) deliver or cause
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to be delivered to the Trustee all Securities so accepted together with an
Officers' Certificate stating the Securities or portions thereof accepted for
payment by the Issuer. The Paying Agent shall promptly mail or deliver to
Holders of Securities so accepted payment in an amount equal to the purchase
price, and the Trustee shall promptly authenticate and mail or deliver to such
Holders a new Security or Securities equal in principal amount to any
unpurchased portion of the Security surrendered as requested by the Holder. Any
Security not accepted for payment shall be promptly mailed or delivered by the
Issuer to the Holder thereof.
(c) A "Change of Control" shall be deemed to have occurred in the
event that, after the date of this Indenture, either (i) a "person" or "group"
(within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) becomes
the ultimate "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act) of more than 35% of the total voting power of the Voting Stock of the
Guarantor, on a fully diluted basis, and such ownership is greater than the
amount of voting power of the Voting Stock of the Guarantor, on a fully diluted
basis, held by the Existing Stockholders and their Affiliates on such date; (ii)
individuals who on the date of this Indenture constitute the Board of Directors
(together with any new directors whose election by the Board of Directors or
whose nomination for election by the Guarantor's stockholders was approved by a
vote of at least two-thirds of the members of the Board of Directors then in
office who either were members of the Board of Directors on the date of this
Indenture or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the members of the
Board of Directors then in office; or (iii) all of the Common Stock of the
Issuer is not beneficially owned by the Guarantor (other than directors'
qualifying shares).
(d) In the event that the Issuer makes an Offer to Purchase the
Securities, the Issuer and the Guarantor shall comply with any applicable
securities laws and regulations, including any applicable requirements of
Section 14(e) of, and Rule 14e-1 under, the Securities Exchange Act.
SECTION 10.18. Provision of Financial Information. The Guarantor and
the Issuer have agreed that, for so long as any Securities remain Outstanding,
each will furnish to the holders of the Securities and to securities analysts
and prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act. In addition, the
Guarantor and the Issuer will file with the Trustee
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within 15 days after it files them with the Commission copies of the annual and
quarterly reports and the information, documents, and other reports that the
Guarantor or the Issuer is required to file with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act ("SEC Reports"). In the event the
Guarantor or the Issuer shall cease to be required to file SEC Reports pursuant
to the Exchange Act, the Guarantor and the Issuer will nevertheless continue to
file such reports with the Commission (unless the Commission will not accept
such a filing) and the Trustee. The Guarantor and the Issuer will furnish copies
of the SEC Reports to the holders of Securities at the time the Guarantor or the
Issuer is required to file the same with the Trustee and will make such
information available to investors who request it in writing.
SECTION 10.19. Statement by Officers as to Default. (a) The Issuer
and the Guarantor will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Guarantor ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Guarantor or the Issuer is in default in the performance and observance of
any of the terms, provisions and conditions of Sections 10.04 to 10.18,
inclusive, and if the Guarantor or the Issuer shall be in default, specifying
all such defaults and the nature and status thereof of which they may have
knowledge.
(b) The Issuer and the Guarantor shall deliver to the Trustee, as
soon as possible and in any event within 10 days after the Issuer or the
Guarantor becomes aware of the occurrence of an Event of Default or an event
which, with notice or the lapse of time or both, would constitute an Event of
Default, an Officers' Certificate setting forth the details of such Event of
Default or default and the action which the Issuer or the Guarantor proposes to
take with respect thereto.
SECTION 10.20. Waiver of Certain Covenants. The Issuer or the
Guarantor, as applicable, may omit in any particular instance to comply with any
covenant or condition set forth in Sections 10.04 to 10.17, inclusive, if before
or after the time for such compliance the Holders of at least a majority in
aggregate principal amount at maturity of the Outstanding Securities shall, by
Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Issuer and the Guarantor and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.
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SECTION 10.21. Paying Agent. The Issuer shall not authorize or
designate any Person (including the Trustee) as a Paying Agent hereunder unless
such Person is located outside of the United Kingdom.
ARTICLE XI
Redemption of Securities
SECTION 11.01. Right of Redemption. (a) At any time prior to
November 15, 2002, in the event that the Guarantor receives net cash proceeds
from the public or private sale of its Common Stock (other than Disqualified
Stock), the Issuer (to the extent it receives such proceeds and has not used
such proceeds, directly or indirectly, to redeem or repurchase other securities
pursuant to optional redemption provisions) may, at its option, apply an amount
equal to any such net cash proceeds to redeem, from time to time, Securities in
a principal amount at maturity of up to an aggregate amount equal to 33 1/3% of
the original aggregate principal amount at maturity of the Securities; provided,
however, that Securities in an amount equal to at least 66 2/3% of the original
aggregate principal amount at maturity of the Securities remain Outstanding
after each redemption. Each redemption must occur on a Redemption Date within
180 days of the related sale and upon not less than 30 nor more than 60 days'
notice by mail to each Holder of Securities to be redeemed at such Holder's
address appearing in the Security Register, in amounts of $1,000 or an integral
multiple of $1,000 at a Redemption Price of 109.875% of the principal amount of
the Securities plus accrued interest to but excluding the Redemption Date
(subject to, in the case of a Global Security in bearer form, the right of the
Holder thereof and, in the case of Definitive Securities, the right of Holders
of record on the relevant Regular Record Date, to receive Interest due on an
Interest Payment Date that is on or prior to the Redemption Date).
(b) In the event that (i) the Guarantor or the Issuer has become or
would become obligated to pay any Additional Amounts as a result of (x) changes
affecting withholding tax laws or (y) a Listing Failure (as defined herein)
provided that the Issuer has used reasonable best efforts to list and maintain
the listing of the Securities on a "recognized stock exchange" (within the
meaning of Section 841 of the U.K. Income and Corporation Taxes Act 1988) (as
provided for in Section 10.09), and (ii) the Guarantor and the Issuer are unable
to avoid the requirement to pay such Additional Amounts by taking reasonable
measures available to them (including, without limitation, the Guarantor making
payments directly to holders under the
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Securities Guarantee, unless such payment is likely to result in adverse
consequences to the Issuer or the Guarantor), then the Issuer may redeem all,
but not less than all, of the Securities at any time at 100% of the principal
amount thereof on the Redemption Date, together with accrued interest thereon,
if any, to but excluding the Redemption Date (subject to, in the case of a
Global Security in bearer form, the right of the Holder thereof and, in the case
of Definitive Securities, the right of Holders of record on the relevant Regular
Record Date, to receive Interest due on an Interest Payment Date that is on or
prior to the Redemption Date). Prior to the publication of the notice of
redemption in accordance with the foregoing, the Issuer shall deliver to the
Trustee an officer's certificate stating that the Issuer is entitled to effect
such redemption based on a written opinion of independent tax counsel or
accounting firm reasonably satisfactory to the Trustee.
(c) The Securities further may be redeemed, as a whole or in part,
at the election of the Issuer, at any time on or after November 15, 2004 and
prior to maturity, upon not less than 30 nor more than 60 days' notice by mail
to each Holder of Securities to be redeemed at such Holder's address appearing
in the Security Register, in amounts of $1,000 or an integral multiple of
$1,000, at the Redemption Prices specified in the form of Security hereinbefore
set forth, together with accrued interest to but excluding the Redemption Date
(subject to, in the case of a Global Security in bearer form, the right of the
Holder thereof and, in the case of Definitive Securities, the right of Holders
of record on the relevant Regular Record Date, to receive Interest due on an
Interest Payment Date that is on or prior to the Redemption Date).
SECTION 11.02. Applicability of Article. Redemption of Securities at
the election of the Issuer, as permitted or required by any provision of this
Indenture, shall be made in accordance with such provision and this Article.
SECTION 11.03. Election To Redeem; Notice to Trustee. The election
of the Issuer to redeem any Securities pursuant to Section 11.01 shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Issuer of less than all the Securities, the Issuer shall, at least 5 days
prior to giving notice of such redemption pursuant to Section 11.05 (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date and of the principal amount of Securities to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of
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such Securities or elsewhere in this Indenture, the Issuer shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 11.04. Securities To Be Redeemed Pro Rata. If less than all
the Securities are to be redeemed in any redemption, the Securities to be
redeemed shall be selected by the Trustee by prorating, as nearly as may be
practicable, the principal amount at maturity of Securities to be redeemed. In
any proration pursuant to this Section, the Trustee shall make such adjustments,
reallocations and eliminations as it shall deem proper to the end that the
principal amount at maturity of Securities so prorated shall be $1,000 or a
multiple thereof, by increasing or decreasing or eliminating the amount which
would be allocable to any Holder on the basis of exact proportion by an amount
not exceeding $1,000. The Trustee in its discretion may determine the particular
Securities (if there are more than one) registered in the name of any Holder
which are to be redeemed, in whole or in part. The Trustee shall incur no
liabilities for any selection made pursuant to this Section 11.04.
The Trustee shall promptly notify the Issuer and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount at
maturity thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount at maturity of such Securities which has been or
is to be redeemed.
SECTION 11.05. Notice of Redemption. Notice of redemption shall be
given by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed, at such Holder's address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) whether the redemption is being made pursuant to Section
11.01(a), (b) or (c) and, if being made pursuant to Section 11.01(a) or
(b), a brief statement
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setting forth the Issuer's right to effect such redemption and the
Issuer's basis therefor,
(4) if less than all the Outstanding Securities are to be redeemed,
the identification (and, in the case of partial redemption of any
Securities, the principal amounts at maturity) of the particular
Securities to be redeemed,
(5) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date,
(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(7) that in the case that a Security is only redeemed in part, the
Issuer shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or
Securities in an aggregate amount equal to the unredeemed portion of the
Security.
Notice of redemption of Securities to be redeemed at the election of
the Issuer shall be given by the Issuer or, at the Issuer's request, by the
Trustee in the name and at the expense of the Issuer. If so requested by the
Issuer, the Trustee shall mail any such notice not later than the date specified
for mailing by the Issuer, which shall not be sooner than 5 days after receipt
by the Trustee of such request (unless a shorter period shall be satisfactory to
the Trustee).
SECTION 11.06. Deposit of Redemption Price. Prior to any Redemption
Date, the Issuer shall deposit with the Trustee or with a Paying Agent (or, if
the Issuer is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.03) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
SECTION 11.07. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Issuer shall default
in the payment of the Redemption Price and accrued interest) such Securities
shall cease to bear interest. Upon surrender of any such Security for
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redemption in accordance with said notice, such Security shall be paid by the
Issuer at the Redemption Price, together with accrued interest to but excluding
the Redemption Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
bearer of such Security, in the case of a Global Security in bearer form, and,
in the case of a Definitive Security, to Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate provided by the
Security.
SECTION 11.08. Securities Redeemed in Part. Any Security which is to
be redeemed only in part shall be surrendered at an office or agency of the
Issuer designated for that purpose pursuant to Section 10.02 (with, if the
Issuer or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Issuer and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing), and the Issuer
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities of like
tenor, of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE XII
Discharge of Indenture
SECTION 12.01. Termination of Issuer's Obligations. Except as
otherwise provided in this Section 12.01, each of the Issuer and the Guarantor
may terminate its obligations under the Securities and this Indenture if:
(a) all Securities previously authenticated and delivered (other
than destroyed, lost or stolen Securities that have been replaced or
Securities for whose payment money or securities have theretofore been
held in trust and thereafter repaid to the Issuer, as provided in Section
12.05) have been delivered to the Trustee for cancelation and the Issuer
has paid all sums payable by it hereunder; or
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(b)(i) all such Securities mature within one year or all of them are
to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption, (ii) the
Issuer irrevocably deposits in trust with the Trustee during such one-year
period, under the terms of an irrevocable trust agreement in form
satisfactory to the Trustee, as trust funds solely for the benefit of the
Holders of such Securities for that purpose, money or U.S. Government
Obligations sufficient (in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee), without consideration of any
reinvestment of any interest thereon, to pay principal, premium, if any,
and interest on such Securities to maturity or redemption, as the case may
be, and to pay all other sums payable by it hereunder, (iii) no Default or
Event of Default with respect to the Securities shall have occurred and be
continuing on the date of such deposit, (iv) such deposit will not result
in a breach or violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Guarantor or the Issuer
is a party or by which it is bound, (v) if at such time the Securities are
listed on a national securities exchange, the Securities will not be
delisted as a result of such deposit, defeasance and discharge, and (vi)
the Issuer has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, in each case stating that all conditions precedent
provided for herein relating to the satisfaction and discharge of this
Indenture have been complied with.
With respect to the foregoing clause (a), the Issuer's obligations
under Section 6.07 shall survive. With respect to the foregoing clause (b), the
Issuer's obligations in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09,
6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until the Securities have
matured or have been redeemed. Thereafter, only the Issuer's obligations in
Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable
deposit, the Trustee upon written request shall acknowledge in writing the
discharge of the Issuer's obligations under the Securities and this Indenture,
and the Guarantor's obligations under the Guarantee and this Indenture, except
for those surviving obligations specified above.
SECTION 12.02. Defeasance and Discharge of Indenture. The Issuer
will be deemed to have paid and will be discharged from any and all obligations
in respect of the
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Securities on the 123rd day after the date of the deposit referred to in clause
(a) of this Section 12.02 if:
(a) with reference to this Section 12.02, the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee and has
conveyed all right, title and interest for the benefit of the Holders,
under the terms of an irrevocable trust agreement in form satisfactory to
the Trustee as trust funds in trust, specifically pledged to the Trustee
for the benefit of the Holders as security for payment of the principal
of, premium, if any, and interest, if any, on the Securities, and
dedicated solely to, the benefit of the Holders, in and to (i) money in an
amount, (ii) U.S. Government Obligations that, through the payment of
interest, premium, if any, and principal in respect thereof in accordance
with their terms, will provide, not later than one day before the due date
of any payment referred to in this clause (a), money in an amount or (iii)
a combination thereof in an amount sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, to pay and
discharge, without consideration of the reinvestment of such interest and
after payment of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, the principal of,
premium, if any, and accrued interest on the Outstanding Securities at the
Stated Maturity of such principal or interest or upon earlier redemption;
provided that the Trustee shall have been irrevocably instructed to apply
such money or the proceeds of such U.S. Government Obligations to the
payment of such principal, premium, if any, and interest with respect to
the Securities and to give any related notice of redemption;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Guarantor, the Issuer or any of their Subsidiaries
is a party or by which the Guarantor, the Issuer or any of their
Subsidiaries is bound;
(c) immediately after giving effect to such deposit on a pro forma
basis, no Default or Event of Default, or event that after the giving of
notice or lapse of time or both could become a Default or Event of
Default, shall have occurred and be continuing on the date of such deposit
or during the period ending on the 123rd day after the date of such
deposit;
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(d) the Issuer shall have delivered to the Trustee either (i) a
ruling based on relevant law and practice at the time directed to the
Trustee from the Inland Revenue or other relevant tax authority to the
effect that the Holders will not recognize income, gain or loss for U.K.
income tax or other tax purposes as a result of the Issuer's exercise of
its option under this Section 12.02, disregarding income tax on any
amounts that would have been received but for such exercise of its option
under this Section 12.02, and will be subject to U.K. income tax on the
same amount and in the same manner and at the same time as would have been
the case if such option had not been exercised or (ii) an Opinion of
Counsel to the same effect as the ruling described in clause (i) above;
(e) the Issuer shall have delivered to the Trustee (i) either (A) a
ruling directed to the Trustee received from the Internal Revenue Service
to the effect that the Holders will not recognize additional income, gain
or loss for U.S. federal income tax purposes as a result of the Issuer's
exercise of its option under this Section 12.02 and will be subject to
U.S. federal income tax on the same amount and in the same manner and at
the same times as would have been the case if such option had not been
exercised or (B) an Opinion of Counsel to the same effect as the ruling
described in clause (A) above accompanied by a ruling to that effect
published by the Internal Revenue Service, unless there has been a change
in the relevant U.S. federal income tax law since the date of this
Indenture and (ii) an Opinion of Counsel to the effect that (A) the
creation of the defeasance trust does not violate the Investment Company
Act of 1940 and (B) after the passage of 123 days following the deposit
(except, with respect to any trust funds for the account of any Holder who
may be deemed to be "connected" with the Issuer for purposes of the
Insolvency Act 1986 after two years following the deposit), the trust
funds will not be subject to the effect of Section 547 of the United
States Bankruptcy Code or Section 15 of the New York Debtor and Creditor
Law and either (I) the trust funds will no longer remain the property of
the Issuer (and therefore will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally) or (II) if a court were to rule
under any such law in any case or proceeding that the trust funds remained
property of the Issuer (1) assuming such trust funds remained in the
possession of the Trustee prior to such court ruling to the extent not
paid to the Holders, the Trustee will hold, for the benefit of the
Holders, a
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valid and perfected security interest in such trust funds that is not
avoidable in bankruptcy or otherwise and (2) no property, rights in
property or other interests granted to the Trustee or the Holders in
exchange for, or with respect to, such trust funds will be subject to any
prior rights of holders of other Debt of the Issuer or any of its
Securities;
(f) if at such time the Securities are listed on a national
securities exchange, the Issuer shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Securities will not be delisted
as a result of the Issuer's exercise of its opinion under this Section
12.02; and
(g) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 12.02 have been complied with.
Notwithstanding the foregoing, prior to the end of the post deposit
period referred to in clause (e)(ii)(B) of this Section 12.02, none of the
Issuer's obligations under this Indenture shall be discharged. Subsequent to the
end of such period with respect to this Section 12.02, the Issuer's obligations
in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04,
12.05 and 12.06 shall survive until the Securities mature or are redeemed.
Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06
shall survive. If and when a ruling from the Internal Revenue Service or an
Opinion of Counsel referred to in clause (e)(i) of this Section 12.02 may be
provided specifically without regard to, and not in reliance upon, the
continuance of the Issuer's obligations under Section 10.01, then the Issuer's
obligations under such sentence shall cease upon delivery to the Trustee of such
ruling or Opinion of Counsel and compliance with the other conditions precedent
provided for herein relating to the defeasance contemplated by this Section
12.02.
After any such irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Issuer's obligations under the
Securities, any Subsidiary Guarantee, if any, and this Indenture except for
those surviving obligations in the immediately preceding paragraph.
SECTION 12.03. Defeasance of Certain Obligations. The Issuer may
omit to comply with any term, provision or condition set forth in clauses (3)
and (4) of Section 8.01 and Sections 10.05 through 10.18 (except for
Section 10.09
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and any covenant otherwise required by the TIA), and clause (d) of Section 5.01
with respect to clauses (3) and (4) of Section 8.01, clauses (d) and (e) of
Section 5.01 with respect to Sections 10.05 through 10.18, except as aforesaid,
and clauses (c), (f) and (g) of Section 5.01 shall be deemed not to be Events of
Default, in each case with respect to the Outstanding Securities if:
(a) with reference to this Section 12.03, the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee and
conveyed all right, title and interest to the Trustee for the benefit of
the Holders, under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee as trust funds in trust,
specifically pledged to the Trustee for the benefit of the Holders as
security for payment of the principal of, premium, if any, and interest,
if any, on the Securities, and dedicated solely to, the benefit of the
Holders, in and to (i) money in an amount, (ii) U.S. Government
Obligations that, through the payment of interest and principal in respect
thereof in accordance with their terms, will provide, not later than one
day before the due date of any payment referred to in this clause (a),
money in an amount or (iii) a combination thereof in an amount sufficient,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, without consideration of the reinvestment
of such interest and after payment of all federal, state and local taxes
or other charges and assessments in respect thereof payable by the
Trustee, the principal of, premium, if any, and interest on the
Outstanding Securities on the Stated Maturity or upon earlier redemption
of such principal or interest; provided that the Trustee shall have been
irrevocably instructed to apply such money or the proceeds of such U.S.
Government Obligations to the payment of such principal, premium, if any,
and interest with respect to the Securities and to give any related notice
of redemption;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Guarantor, the Issuer or any of their Subsidiaries
is a party or by which the Guarantor, the Issuer or any of their
Subsidiaries is bound;
(c) immediately after giving effect to such deposit or a pro forma
basis, no Default or Event of Default, or event that after the giving of
notice or
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lapse of time or both would become a Default or Event of Default, shall
have occurred and be continuing on the date of such deposit or during the
period ending on the 123rd day after the day of such deposit;
(d) the Issuer has delivered to the Trustee an Opinion of Counsel to
the effect that (i) the creation of the defeasance trust does not violate
the Investment Company Act of 1940, (ii) the Holders will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of
such deposit and the defeasance of the obligations referred to in the
first paragraph of this Section 12.03 and will be subject to U.S. federal
income tax on the same amount and in the same manner and at the same times
as would have been the case if such deposit and defeasance had not
occurred and (iii) after the passage of 123 days following the deposit
(except with respect to any trust funds for the account of any Holder who
may be deemed to be "connected" with the Issuer for purposes of the
Insolvency Act 1986 after two years following the deposit), the trust
funds will not be subject to the effect of Section 547 of the United
States Bankruptcy Code or Section 15 of the New York Debtor and Creditor
Law, and either (A) the trust funds will no longer remain the property of
the Issuer (and therefore will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditor's rights generally) or (B) if a court were to rule
under any such law in any case or proceeding that the trust funds remained
property of the Issuer (1) assuming such trust funds remained in the
possession of the Trustee prior to such court ruling to the extent not
paid to the Holders, the Trustee will hold, for the benefit of the
Holders, a valid and perfected security interest in such trust funds that
is not avoidable in bankruptcy or otherwise and (2) no property, rights in
property or other interests granted to the Trustee or the Holders in
exchange for, or with respect to, such trust funds will be subject to any
prior rights or holders of other Indebtedness of the Issuer or any of its
Securities;
(e) if at such time the Securities are listed on a national
securities exchange, the Issuer has delivered to the Trustee an Opinion of
Counsel to the effect that the Securities will not be delisted as a result
of the Issuer's exercise of its option under Section 12.03; and
(f) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions
precedent
-123-
<PAGE>
provided for herein relating to the defeasance contemplated by this
Section 12.03 have been complied with.
SECTION 12.04. Application of Trust Money. Subject to Section 12.06,
the Trustee or Paying Agent shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 12.01, 12.02 or 12.03, as the
case may be, and shall apply the deposited money and the money from U.S.
Government Obligations in accordance with the Securities and this Indenture to
the payment of principal of, premium, if any, and interest on the Securities;
but such money need not be segregated from other funds except to the extent
required by law.
SECTION 12.05. Repayment to Issuer. Subject to Sections 6.07, 12.01,
12.02 and 12.03, the Trustee and the Paying Agent shall promptly pay to the
Issuer upon request set forth in an Officers' Certificate any excess money held
by them at any time and thereupon shall be relieved from all liability with
respect to such money. The Trustee and the Paying Agent shall pay to the Issuer
any money held by them for the payment of principal, premium, if any, or
interest that remains unclaimed in accordance with Section 10.02.
SECTION 12.06. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with
Section 12.01, 12.02 or 12.03, as the case may be, by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Issuer's obligations under this Indenture, the Securities Guarantee, and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 12.01, 12.02 or 12.03, as the case may be, until such time
as the Trustee or Paying Agent is permitted to apply all such money or U.S.
Government Obligations in accordance with Section 12.01, 12.02 or 12.03, as the
case may be; provided that, if the Issuer has made any payment of principal of,
premium, if any, or interest on any Securities because of the reinstatement of
its obligations, the Issuer shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
SECTION 12.07. Insiders. With respect to the determination of the
Persons constituting beneficial owners of Securities and whether any such Person
is "connected" with the Issuer for purposes of Sections 12.02(e)(ii)(B) and
12.03(d)(iii), the Trustee may rely on an Officers' Certificate.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
Dated:
The Common Seal of
RSL COMMUNICATIONS PLC
was hereto affixed in
the presence of:
[SEAL]
RSL COMMUNICATIONS PLC,
by /s/ Itzhak Fisher
----------------------
Name: Itzhak Fisher
Title: Director, President and CEO
by /s/ Jacob Schuster
----------------------
Name: Jacob Schuster
Title: Director and Secretary
THE CHASE MANHATTAN BANK,
by /s/ Andrew Deck
----------------------
Name: Andrew Deck
Title: Vice President
RSL COMMUNICATIONS, LTD.,
by /s/ Itzhak Fisher
----------------------
Name: Itzhak Fisher
Title: Director, President and CEO
-125-
<PAGE>
ANNEX A -- Form of
Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to ss. 3.05(b)(i) and (iii)
of the Indenture)
The Chase Manhattan Bank,
as Trustee
450 West 33rd Street, 15th Floor
New York, NY 10001
Attention: Global Trust Services
Re: 9 7/8% Senior Notes due 2009 of
RSL Communications PLC (the "Securities")
Reference is made to the Indenture, dated as of May 13, 1999 (the
"Indenture"), between RSL Communications PLC (the "Issuer"), RSL Communications,
Ltd. (the "Guarantor") and The Chase Manhattan Bank, as Trustee. Terms used
herein and defined in the Indenture or in Regulation S or Rule 144 under the
U.S. Securities Act of 1933, as amended (the "Securities Act") are used herein
as so defined.
This certificate relates to U.S. $____________ principal amount at
maturity of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Book-Entry Depositary who issued a Depositary Interest to the
Depositary (or its nominee) who holds such interest in the name of the
Undersigned. If the Specified Securities are not represented by a Global
Security, they are registered in the name of the Undersigned, as or on behalf of
the Owner.
The Owner has requested that the Specified Securities be transferred
to a person (the "Transferee") who will take delivery in the form of a
Regulation S Security. In connection with such transfer, the Owner hereby
certifies that, unless such transfer is being effected pursuant to an effective
registration statement under the Securities Act, it is being effected in
accordance with Rule 904 or Rule 144
A-1
<PAGE>
under the Securities Act and with all applicable securities laws of the states
of the United States and other jurisdictions. Accordingly, the Owner hereby
further certifies as follows:
(1) Rule 904 Transfers. If the transfer is being effected in
accordance with Rule 904:
(A) the Owner is not a distributor of the Securities, an
affiliate of the Issuer or any such distributor or a person acting
on behalf of any of the foregoing;
(B) the offer of the Specified Securities was not made to a
person in the United States;
(C) either:
(i) at the time the buy order was originated, the
Transferee was outside the United States or the Owner and any
person acting on its behalf reasonably believed that the
Transferee was outside the United States, or
(ii) the transaction is being executed in, on or through
the facilities of the Eurobond market, as regulated by the
Association of International Bond Dealers, or another
designated offshore securities market and neither the Owner
nor any person acting on its behalf knows that the transaction
has been prearranged with a buyer in the United States;
(D) no directed selling efforts have been made in the United
States by or on behalf of the Owner or any affiliate thereof;
(E) if the Owner is a dealer in securities or has received a
selling concession, fee or other remuneration in respect of the
Specified Securities, and the transfer is to occur during the
Restricted Period, then the requirements of Rule 904(c)(1) have been
satisfied; and
(F) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
(2) Rule 144 Transfers. If the transfer is being effected pursuant
to Rule 144:
A-2
<PAGE>
(A) the transfer is occurring after a holding period of at
least one year (computed in accordance with paragraph (d) of Rule
144) has elapsed since the Specified Securities were last acquired
from the Issuer or from an affiliate of the Issuer, whichever is
later, and is being effected in accordance with the applicable
amount, manner of sale and notice requirements of Rule 144; or
(B) the transfer is occurring after a holding period of at
least two years (computed in accordance with paragraph (d) of Rule
144) has elapsed since the Specified Securities were last acquired
from the Issuer or from an affiliate of the Issuer, whichever is
later, and the Owner is not, and during the preceding three months
has not been, an affiliate of the Issuer.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer and the Purchaser.
Dated: ___________________________________
(Print the name of the Undersigned,
as such term is defined in the
second paragraph of this
certificate.)
by
----------------------
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of the
person signing on behalf of the Undersigned
must be stated.)
A-3
<PAGE>
ANNEX B -- Form of Restricted
Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to ss. 3.05(b)(ii) and (iii)
of the Indenture)
The Chase Manhattan Bank,
as Trustee
450 West 33rd Street, 15th Floor
New York, NY 10001
Attention: Global Trust Services
Re: 9 7/8% Senior Notes due 2009 of
RSL Communications PLC (the "Securities")
Reference is made to the Indenture, dated as of May 13, 1999 (the
"Indenture"), between RSL Communications PLC (the "Issuer"), RSL Communications,
Ltd. (the "Guarantor") and The Chase Manhattan Bank, as Trustee. Terms used
herein and defined in the Indenture or in Regulation S or Rule 144 under the
U.S. Securities Act of 1933, as amended (the "Securities Act") are used herein
as so defined.
This certificate relates to U.S. $_____________ principal amount at
maturity of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Book-Entry Depositary who issued a Depositary Interest to the
Depositary (or its nominee) who holds such interest in the name of the
Undersigned. If the Specified Securities are not represented by a Global
Security, they are registered in the name of the Undersigned, as or on behalf of
the Owner.
The Owner has requested that the Specified Securities be transferred
to a person (the "Transferee") who will take delivery in the form of a
Restricted Security. In connection with such transfer, the Owner hereby
certifies that, unless such transfer is being effected pursuant to an
B-1
<PAGE>
effective registration statement under the Securities Act, it is being effected
in accordance with Rule 144A or Rule 144 under the Securities Act and all
applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as follows:
(1) Rule 144A Transfers. If the transfer is being effected in
accordance with Rule 144A:
(A) the Specified Securities are being transferred to a person
that the Owner and any person acting on its behalf reasonably
believe is a "qualified institutional buyer" within the meaning of
Rule 144A, acquiring for its own account or for the account of a
qualified institutional buyer; and
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the
Owner may be relying on Rule 144A in connection with the transfer;
and
(2) Rule 144 Transfers. If the transfer is being effected pursuant
to Rule 144:
(A) the transfer is occurring after a holding period of at
least one year (computed in accordance with paragraph (d) of Rule
144) has elapsed since the Specified Securities were last acquired
from the Issuer or from an affiliate of the Issuer, whichever is
later, and is being effected in accordance with the applicable
amount, manner of sale and notice requirements of Rule 144; or
(B) the transfer is occurring after a holding period of at
least two years (computed in accordance with paragraph (d) of Rule
144) has elapsed since the Specified Securities were last acquired
from the Issuer or from an affiliate of the Issuer, whichever is
later, and the Owner is not, and during the preceding three months
has not been, an affiliate of the Issuer.
B-2
<PAGE>
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer and the Purchaser.
Dated: ___________________________________
(Print the name of the Undersigned,
as such term is defined in the
second paragraph of this
certificate.)
by
----------------------
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of the
person signing on behalf of the Undersigned
must be stated.)
B-3
<PAGE>
ANNEX C -- Form of Unrestricted
Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to ss. 3.05(c))
The Chase Manhattan Bank,
as Trustee
450 West 33rd Street, 15th Floor
New York, NY 10001
Attention: Global Trust Services
Re: 9 7/8% Senior Notes due 2009 of
RSL Communications PLC (the "Securities")
Reference is made to the Indenture, dated as of May 13, 1999 (the
"Indenture"), between RSL Communications PLC (the "Issuer"), RSL Communications,
Ltd. (the "Guarantor") and The Chase Manhattan Bank, as Trustee. Terms used
herein and defined in the Indenture or in Regulation S or Rule 144 under the
U.S. Securities Act of 1933, as amended (the "Securities Act") are used herein
as so defined.
This certificate relates to U.S. $_____________ principal amount at
maturity of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Book-Entry Depositary who issued a Depositary Interest to the
Depositary (or its nominee) who holds such interest in the name of the
Undersigned, as or on behalf of the Owner. If the Specified Securities are not
represented by a Global Security, they are registered in the name of the
Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be exchanged
for Securities bearing no Securities Act Legend pursuant to Section 305(c) of
the Indenture. In connection with such exchange, the Owner hereby certifies that
the exchange is occurring after a holding period of at
C-1
<PAGE>
least two years (computed in accordance with paragraph (d) of Rule 144) has
elapsed since the Specified Securities were last acquired from the Issuer or
from an affiliate of the Issuer, whichever is later, and the Owner is not, and
during the preceding three months has not been, an affiliate of the Issuer. The
Owner also acknowledges that any future transfers of the Specified Securities
must comply with all applicable securities laws of the states of the United
States and other jurisdictions.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer and the Purchaser.
Dated: ___________________________________
(Print the name of the Undersigned,
as such term is defined in the
second paragraph of this
certificate.)
by
----------------------
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of the
person signing on behalf of the Undersigned
must be stated.)
C-2
<PAGE>
EXECUTION COPY
- --------------------------------------------------------------------------------
RSL COMMUNICATIONS PLC
as Issuer, with RSL Communications, Ltd. of
$175,000,000, 9 7/8% Senior Discount Notes Due 2009
of RSL Communications PLC
and
THE CHASE MANHATTAN BANK
as Book-Entry Depositary
NOTE DEPOSIT AGREEMENT
Dated as of May 13, 1999
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND OTHER GENERAL PROVISIONS.......................................1
SECTION 1.1 Definitions..............................................1
SECTION 1.2 Rules of Construction....................................4
ARTICLE II
GLOBAL NOTES, DEPOSITARY INTERESTS.............................................4
SECTION 2.1 Deposit of the Global Notes..............................4
SECTION 2.2 Book-Entry System........................................5
SECTION 2.3 Registration of Transfer of Depositary Interests.........5
SECTION 2.4 Transfer of Global Notes and Depositary Interests;
Termination..............................................6
SECTION 2.5 Cancellation.............................................7
SECTION 2.6 Payments in Respect of the Global Notes..................7
SECTION 2.7 Changes in Principal Amount of the Global Notes..........8
SECTION 2.8 Record Date..............................................9
SECTION 2.9 Action in Respect of the Depositary Interests............9
SECTION 2.10 Changes Affecting the Global Notes.....................11
SECTION 2.11 Surrender of the Global Notes..........................11
SECTION 2.12 Reports................................................11
ARTICLE III
THE BOOK-ENTRY DEPOSITARY.....................................................11
SECTION 3.1 Certain Duties and Responsibilities.....................11
SECTION 3.2 Notice of Default.......................................13
SECTION 3.3 Certain Rights of Book-Entry Depositary.................13
SECTION 3.4 Not Responsible for Recitals or Issuance of Notes.......15
SECTION 3.5 Money Held in Trust.....................................15
SECTION 3.6 Compensation and Reimbursement..........................15
SECTION 3.7 Book-Entry Depositary Required: Eligibility.............16
SECTION 3.8 Resignation and Removal, Appointment of Successor.......17
SECTION 3.9 Acceptance of Appointment by Successor..................18
SECTION 3.10 Merger, Conversion, Consolidation or
Succession to Business.................................19
SECTION 3.11 Compliance with Letter of Representations..............20
ARTICLE IV
MISCELLANEOUS PROVISIONS......................................................20
i
<PAGE>
SECTION 4.1 Notices to Book-Entry Depositary or Issuer..............20
SECTION 4.2 Notice to the Depositary; Waiver........................21
SECTION 4.3 Effect of Headings and Table of Contents................21
SECTION 4.4 Successors and Assigns..................................21
SECTION 4.5 Separability Clause.....................................22
SECTION 4.6 Benefits of Agreement...................................22
SECTION 4.7 GOVERNING LAW...........................................22
SECTION 4.8 Jurisdiction............................................22
SECTION 4.9 Counterparts............................................23
SECTION 4.10 Inspection of Agreement................................23
SECTION 4.11 Satisfaction and Discharge.............................23
SECTION 4.12 Amendments.............................................23
SECTION 4.13 Book-Entry Depositary To Sign Amendments...............24
ii
<PAGE>
THIS NOTE DEPOSIT AGREEMENT is made as of this 13th day of
May, 1999 by and between RSL Communications PLC, a United Kingdom corporation
(the "Issuer") and The Chase Manhattan Bank, a New York banking corporation, as
book-entry depositary (the "Book-Entry Depositary").
ARTICLE I
DEFINITIONS AND OTHER GENERAL PROVISIONS
SECTION 1.1 Definitions. The following terms, as used herein,
have the following meanings:
"144A Depositary Interest" means the certificateless
book-entry interest representing a 100% beneficial interest in the principal of,
premium, if any, and interest on the underlying 144A Global Note, and issued to
the Depositary by the Book-Entry Depositary.
"144A Global Note" means one or more global bearer bonds
issued by the Issuer to the Book-Entry Depositary and bearing the Restricted
Legend representing the total aggregate principal amount of the Notes sold in
reliance on Rule 144A under the Securities Act.
"Asset Disposition" has the meaning set forth in the
Indenture.
"Board Resolution" means a duly adopted resolution of the
Board of Directors of the Issuer in full force and effect on the date of
certification, certified by any Director, Secretary or Assistant Secretary of
the Issuer.
"Book-Entry Depositary" means The Chase Manhattan Bank or, in
the event that The Chase Manhattan Bank is succeeded as Book-Entry Depositary
hereunder, the Person designated as its successor pursuant to Section 3.8
hereof.
"Book-Entry Notes" means an indirect certificateless
beneficial interest in a Global Note held through a corresponding Depositary
Interest.
"Book-Entry Register" has the meaning set forth in Section 2.3
hereof.
"Change of Control" has the meaning set forth in the
Indenture.
"Corporate Trust Office" means the office of the Book-Entry
Depositary in the Borough of Manhattan, The City of New York, from which at any
particular time its corporate trust business shall be principally administered,
which at
<PAGE>
the date hereof is located at 450 West 33rd Street, New York, New York
10001-2697, Attention: Global Trust Services.
"Depositary" means DTC, or any successor, as the holder of the
Depositary Interests as recorded on the Book-Entry Register.
"Depositary Interests" means each of the 144A Depositary
Interests and the Regulation S Depositary Interests.
"DTC" means The Depository Trust Company and its nominees.
"Event of Default" shall have the meaning set forth in the
Indenture.
"Exchange Act" means the United States Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated thereunder.
"Global Notes" means each of the 144A Global Note and the
Regulation S Global Note.
"Holdings" means RSL Communications, Ltd., guarantor of the
Notes pursuant to the Indenture until a successor replaces it pursuant to the
applicable provisions of the Indenture and, thereafter, means such successor.
"Indenture" means the indenture dated as of May 13, 1999 among
the Issuer, Holdings and the Trustee relating to the Notes, as originally
executed or as it may be supplemented, modified or amended from time to time.
"Issuer" means RSL Communications PLC until a successor
replaces it pursuant to the applicable provisions of the Indenture and,
thereafter, means such successor.
"Issuer Order" or "Issuer Request" means a written order or
request signed in the name of the Issuer by two Officers thereof.
"Letter of Representations" means the Letter of
Representations to DTC dated as of May 13, 1999 from the Issuer, the Trustee and
the Book-Entry Depositary.
"Notes" means the $175,000,000 aggregate principal amount at
maturity of the Issuer's 9 7/8% Senior Notes due 2009 issued under the
Indenture.
"Offer to Purchase" has the meaning set forth in the
Indenture.
2
<PAGE>
"Officer" means, with respect to the Issuer, (i) the Chairman
of the Board, the Chief Executive Officer and other Directors and (ii) the
Treasurer or any Assistant Treasurer, or the Secretary or any Assistant
Secretary.
"Officers' Certificate" means a certificate signed by two
Officers, at least one of which must be an Officer listed in clause (i) of the
definition thereof.
"Opinion of Counsel" means a written opinion from legal
counsel, who may be an employee of or counsel to the Issuer, and who shall be
reasonably acceptable to the Book-Entry Depositary.
"Paying Agent" means The Chase Manhattan Bank and any
successor paying agent hereunder.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Registered Notes" means certificated Notes registered in the
name of the holder thereof issued pursuant to the Indenture in substantially the
form set forth in Section 2.02 of the Indenture.
"Regulation S Depositary Interest" means the certificateless
book-entry interest representing a 100% beneficial interest in the principal of,
premium, if any, and interest on the underlying Regulation S Global Note, and
issued to the Depositary by the Book-Entry Depositary.
"Regulation S Global Note" means one or more global bearer
bonds issued by the Issuer to the Book-Entry Depositary and bearing the
Regulation S Legend representing the total aggregate principal amount of the
Notes sold in reliance on Regulation S under the Securities Act.
"Regulation S Legend" has the meaning set forth in the
Indenture.
"Responsible Officer", with respect to the Book-Entry
Depositary, means any Vice President, Assistant Vice President, the Secretary,
any Assistant Secretary, the Treasurer, any Assistant Treasurer, or any Trust
Officer or any other officer of the Book-Entry Depositary customarily performing
functions similar to those performed by any of the above-designated officers and
also means, with respect to a particular corporate trust or agency matter, any
other officer to whom such matter is referred because of his or her knowledge
and familiarity with the particular subject.
3
<PAGE>
"Restricted Legend" has the meaning set forth in the
Indenture.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Trustee" means The Chase Manhattan Bank acting as trustee
under the Indenture or, in the event The Chase Manhattan Bank is succeeded as
trustee under the Indenture, such Person who shall be appointed to succeed as
trustee pursuant to the applicable provisions of the Indenture.
SECTION 1.2 Rules of Construction. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) "or" is not exclusive;
(3) "including" means including without limitation;
(4) words in the singular include the plural and words in the
plural include the singular; and
(5) references herein to holders of Depositary Interests shall
mean references to the Depositary.
ARTICLE II
GLOBAL NOTES, DEPOSITARY INTERESTS
SECTION 2.1 Deposit of the Global Notes. The Book-Entry
Depositary hereby accepts custody of the Global Notes from the Trustee and shall
act as Book-Entry Depositary in accordance with the terms of this Agreement. The
Book-Entry Depositary shall hold each such Global Note at its Corporate Trust
Office or at such place or places as it shall determine with the prior written
consent of the Issuer and shall issue the Depositary Interests in accordance
with the Letter of Representations. In the event that the Issuer shall issue and
execute, and the Trustee, upon the order of the Issuer, shall authenticate
additional Global Notes, the Book-Entry Depositary shall hold each such Global
Note at its Corporate Trust Office or at such place or places as it shall
determine with the prior written consent of the Issuer and shall issue the
Depositary Interests in such Global Notes to the Depositary in accordance with
the Letter of Representations.
4
<PAGE>
SECTION 2.2 Book-Entry System. (a) Upon acceptance by DTC of
the Depositary Interests for entry into its book-entry settlement system in
accordance with the terms of the Letter of Representations, Book-Entry Notes
shall be issued by DTC and traded through DTC's book-entry system, and ownership
of such Book-Entry Notes shall be shown in, and the transfer of such ownership
shall be effected only through, a book-entry system maintained by (i) DTC or its
successors or (ii) Participants. DTC shall treat the holders of Book-Entry Notes
and their successors as the absolute owners of the Depositary Interests for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Issuer, the Trustee, the Book-Entry Depositary or any agent of the Issuer,
the Trustee or the Book-Entry Depositary from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or
impair, as between the Book-Entry Depositary and the Depositary and its
Participants, the operation of customary practices of such Depositary governing
the exercise of the rights of an owner of a beneficial interest in any Global
Note or Depositary Interest.
(b) The Depositary Interests shall be issuable only to DTC, or
successors of DTC or their respective nominees. Except as provided in Section
2.4 hereof and Section 3.05(d) of the Indenture, no owner of beneficial
interests in such Depositary Interests shall be entitled to receive a Registered
Note on account of such beneficial interest, and such beneficial owner's
interest therein shall be shown only in accordance with the procedures of DTC as
set forth in the Letter of Representations.
SECTION 2.3 Registration of Transfer of Depositary Interests.
(a) The Issuer appoints the Book-Entry Depositary as its agent to maintain at
the Book-Entry Depositary's Corporate Trust Office a register (the "Book-Entry
Register") in which the Book-Entry Depositary shall (i) record the right of the
Depositary to receive payment of principal of, premium, if any, and interest on
the Global Notes and (ii) record the registration and transfer of the Depositary
Interests. No Depositary Interest can be transferred unless such transfer is
recorded on the Book-Entry Register.
(b) With respect to any Global Note, clause (a) of this
Section 2.3 shall not (i) impose an obligation on the Book-Entry Depositary to
record the interests in or transfers of Book-Entry Notes held by institutions
that have accounts with DTC or its successors or Persons that may hold
Book-Entry Notes through such institutions and (ii) restrict transfers of such
Book-Entry Notes held by such institutions or Persons. The Book-Entry Depositary
shall treat the
5
<PAGE>
Depositary or its nominee as the absolute owner of the Depositary Interests for
all purposes whatsoever and shall not be bound or affected by any notice to the
contrary, other than an order of a court having jurisdiction over the Book-Entry
Depositary.
SECTION 2.4 Transfer of Global Notes and Depositary Interests;
Termination. The Book-Entry Depositary shall hold the Global Notes in custody
for the benefit of the Depositary. The Book-Entry Depositary shall not transfer
or lend any Global Note or any interest therein except that (i) the Book-Entry
Depositary shall deliver Global Notes to the Trustee if required in accordance
with Section 3.05(e) of the Indenture so that the Trustee may make such
notations on the Global Notes as may be required to evidence transfers and
exchanges of Book-Entry Notes, (ii) a Global Note may be exchanged in whole or
in part pursuant to Section 3.05(d) of the Indenture, (iii) a Global Note may be
exchanged or replaced pursuant to Sections 3.04 and 3.06 of the Indenture, (iv)
any Global Note may be delivered to the Trustee for cancellation pursuant to
Section 3.09 of the Indenture and (v) the Global Notes may be transferred to a
successor Book-Entry Depositary with the prior written consent of the Issuer.
Notwithstanding the foregoing, the Depositary may not under any circumstances
request the Book-Entry Depositary to surrender or deliver the Global Notes.
If the Book-Entry Depositary notifies the Issuer and the
Trustee in writing under Section 3.8 hereof that it is unwilling or unable to
continue as Book-Entry Depositary and no successor Book-Entry Depositary has
been appointed by the Issuer within 90 days of such notification, then the
Book-Entry Depositary shall promptly notify the Trustee and request the Trustee
to issue Registered Notes in such names and denominations as the Depositary
shall specify in writing in accordance with Section 3.05 of the Indenture and
the Book-Entry Depositary agrees that in such event it shall promptly surrender
the Global Notes held by it to the Trustee in connection with such exchange and
that such Global Notes shall be canceled upon issuance of such Registered Notes.
If DTC notifies the Issuer or the Book-Entry Depositary in
writing that it or its nominee is unwilling or unable to continue as Depositary
with respect to any or all of the Depositary Interests or if at any time it or
its nominee is unable to or ceases to be a clearing agency under the Exchange
Act and, in either case, a successor Depositary registered as a clearing agency
under the Exchange Act is not appointed by the Issuer within 90 days, then the
Book-Entry Depositary shall promptly notify the Trustee and
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request the Trustee to issue Registered Notes with respect to the Global Notes
in such names and denominations as the Depositary shall specify in writing in
accordance with Section 3.05 of the Indenture and the Book-Entry Depositary
agrees that in such event it shall promptly surrender the applicable Global
Notes held by it to the Trustee in connection with such exchange and that such
Global Notes shall be canceled upon issuance of such Registered Notes.
If at any time the Issuer, subject to and in compliance with
Section 3.05(d) of the Indenture, determines that the Global Notes should be
exchanged, in whole but not in part, for Registered Notes, then the Issuer shall
promptly notify the Trustee and the Book-Entry Depositary and request the
Trustee to issue Registered Notes with respect to the Global Notes in such names
and denominations as the Depositary shall specify in writing in accordance with
Section 3.05 of the Indenture and the Book-Entry Depositary agrees that in such
event it shall promptly surrender the applicable Global Notes held by it to the
Trustee in connection with such exchange and that such Global Notes shall be
canceled upon issuance of such Registered Notes.
Upon the issuance of Registered Notes in exchange for Global
Notes representing the entire principal amount of Notes, this Agreement will
terminate.
SECTION 2.5 Cancellation. If any Global Note is surrendered
for payment, or for redemption or purchase of Notes evidenced thereby or in
exchange for Registered Notes, then such Global Note shall, if surrendered to
any Person other than the Trustee notwithstanding the first paragraph of Section
2.4 hereof, be delivered to the Trustee for cancellation.
SECTION 2.6 Payments in Respect of the Global Notes. (a)
Except for payments made pursuant to an Offer to Purchase with respect to any
Asset Disposition or Change of Control, whenever the Book-Entry Depositary shall
receive from the Trustee (or other paying agent under the Indenture) any payment
of the principal of, premium, if any, and interest on the Global Notes, such
payments shall be distributed promptly to the Depositary on the payment date for
the Global Notes.
(b) Whenever the Book-Entry Depositary shall receive from the
Trustee (or other paying agent under the Indenture) any payment of the principal
of, premium, if any, and interest on the Global Notes pursuant to an Offer to
Purchase by the Issuer with respect to any Asset Disposition or Change of
Control, the Book-Entry Depositary shall
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distribute such payment to the Depositary for the accounts of holders of
Book-Entry Notes who elected to have Book-Entry Notes repurchased pursuant to
such Offer to Purchase.
(c) So long as DTC or its nominee is the Depositary, payments
pursuant to Section 2.6(a) and 2.6(b) hereof with respect to the Global Notes
shall be made in accordance with the Letter of Representations. In the event
that DTC or its nominee shall cease to be the Depositary, such payments shall be
made according to procedures agreed upon between the Book-Entry Depositary and
the successor Depositary, which shall be reasonably satisfactory to the Issuer.
(d) The Book-Entry Depositary shall forward to the Issuer or
its agents at the Issuer's cost and expense such information from its records as
the Issuer may reasonably request to enable the Issuer or its agents to file
necessary reports with governmental agencies, and the Book-Entry Depositary, the
Issuer or its agents may (but shall not be required to) file any such reports
necessary to obtain benefits under any applicable tax treaties for the
Depositary or the holders of Book-Entry Notes.
SECTION 2.7 Changes in Principal Amount of the Global Notes.
(a) In the event that the Issuer exercises any right of redemption in respect of
any Notes constituting a part of the Global Notes or purchases any Notes
constituting a part of the Global Notes pursuant to an Offer to Purchase under
Section 10.13 or 10.17 of the Indenture, the Book-Entry Depositary shall,
promptly upon receipt of the redemption price or purchase price, deliver such
Global Notes to the Trustee (i) and request the Trustee to endorse on such
Global Note to reflect the reduction in the principal amount of such Global Note
as a result of such redemption or purchase or (ii) in exchange for a Global Note
with a principal amount that represents only the portion of such Global Note not
so redeemed or purchased. The redemption price or purchase price in connection
with the redemption of a portion of such Global Note shall be equal to the
amount received by the Book-Entry Depositary in respect of the aggregate
principal amount at maturity of the Notes so redeemed or repurchased.
(b) Pursuant to Section 3.05 of the Indenture, upon written
notice from the Trustee to the Book-Entry Depositary of an increase or decrease
in the aggregate principal amount of any Global Note, the Book-Entry Depositary
shall enter or cause to be entered in the Book-Entry Register a corresponding
increase or decrease in the aggregate principal amount of the Depositary
Interest corresponding to such Global Note.
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SECTION 2.8 Record Date. Whenever any payment is to be made in
respect of the Global Notes or the Book-Entry Depositary shall receive written
notice of any action to be taken by the Depositary, or whenever the Book-Entry
Depositary otherwise deems it appropriate in respect of any other matter, the
Book-Entry Depositary shall fix a record date for the determination of the
holders of the Depositary Interests who shall be entitled to receive payment in
respect of the Depositary Interests or to take any such action or to act in
respect of any such matter and such record date shall be unless otherwise
impracticable the record date as would be set under the Indenture if such
securities were Registered Notes. Subject to the provisions of this Agreement,
only the Depositary which is registered on the Book-Entry Register at the close
of business on such record date shall be entitled to receive any such payment,
to give instructions as to such action or to act in respect of any such matter.
The Depositary shall be entitled to rely on such record date
as the date of determination for purposes of further distribution of the
payments disbursed, and so long as DTC or its nominee is the Depositary, such
record date applicable to the Depositary shall comply with the requirements of
the Letter of Representations.
SECTION 2.9 Action in Respect of the Depositary Interests. (a)
As soon as practicable after receipt by the Book-Entry Depositary of written
notice from the Issuer of any solicitation of consents or request for a waiver
or other action by the Depositary under this Agreement or the Indenture, the
Book-Entry Depositary shall mail to the Depositary a notice containing (i) such
information as is contained in such notice, (ii) a statement that the holders of
Depositary Interests at the close of business on a specified record date
(established in accordance with Section 2.8 hereof) will be entitled, subject to
the provisions of or governing the Depositary Interests, to instruct the
Book-Entry Depositary as to the consent, waiver or other action, if any,
pertaining to the Global Notes and (iii) a statement as to the manner in which
such instructions may be given. Upon the written request of the Depositary
received on or before the date established by the Book-Entry Depositary for such
purpose, the Book-Entry Depositary shall endeavor insofar as practicable and
permitted under the provisions of or governing the Depositary Interests to take
such action regarding the requested consent, waiver or other action in respect
of the Global Notes in accordance with any instructions set forth in such
request. The Book-Entry Depositary shall not itself exercise any discretion in
the granting of consents or waivers or the taking of any other action in respect
of the
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Global Notes and, as holder of the Global Notes, the Book-Entry Depositary
promptly shall cause such consents or waivers to be granted and such action to
be taken with respect to the Global Notes as the Depositary had given or had
taken.
(b) As soon as practicable after receipt by the Book-Entry
Depositary of an Offer to Purchase with respect to the Global Notes, the
Book-Entry Depositary shall mail to the Depositary a notice containing (i) such
information as is contained in such notice, (ii) a statement that the holders of
Depositary Interests at the close of business on a specified record date
(established in accordance with Section 2.8 hereof) will be entitled, subject to
the provisions of or governing the Depositary Interests, to elect to have all or
any portion of their interest in the Global Notes repurchased in accordance with
such Offer to Purchase and (iii) such documentation provided by the Issuer as is
necessary for the Depositary to elect to have all or any portion of the
Depositary Interests repurchased pursuant to such Offer to Purchase. So long as
DTC or its nominee is acting as Depositary, such notice shall also comply with
the Letter of Representations. Upon receipt of elections relating to such Offer
to Purchase from the Depositary received on or before the date established by
the Issuer for such purpose, the Book-Entry Depositary shall endeavor insofar as
practicable and permitted under the provisions of or governing the Depositary
Interests and the Global Notes to tender the Global Notes or portions thereof
requested to be tendered by the Depositary for repurchase in accordance with
such Offer to Purchase. The Book-Entry Depositary shall not itself exercise any
discretion in the tender of any Global Notes pursuant to an Offer to Purchase.
(c) As soon as practicable after receipt by the Book-Entry
Depositary of any notice of redemption with respect to the Global Notes pursuant
to Section 11.01 of the Indenture, the Book-Entry Depositary shall mail to the
Depositary a notice containing (i) such information as is contained in such
notice and (ii) a statement that Notes called for redemption must be surrendered
to the Paying Agent in order to collect the Redemption Price. So long as DTC or
its nominee is acting as Depositary, such notice shall also comply with the
Letter of Representations.
(d) The Depositary may direct in writing the time, method and
place of conducting any proceeding for any remedy available to the Book-Entry
Depositary with respect to the Global Notes or exercising any power conferred on
the Book-Entry Depositary. However, the Book-Entry Depositary may refuse to
follow any direction that conflicts with law, the Indenture or this Agreement,
that may involve the Book-
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Entry Depositary in personal liability, or that the Book-Entry Depositary
determines in good faith may be unduly prejudicial to the rights of the holders
of Book-Entry Notes not joining in the giving of such direction and may take any
other action it deems proper that is not inconsistent with any directions
received from the Depositary pursuant to this Section 2.9(d).
SECTION 2.10 Changes Affecting the Global Notes. Upon any
reclassification of the Global Notes, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Issuer
or to which the Issuer is a party, any securities that shall be received by the
Book-Entry Depositary in exchange for or in respect of a Global Note shall be
treated as a new Global Note under this Agreement and any corresponding
Depositary Interests shall thenceforth represent such new securities so
received; provided, however, that any security issued in exchange for or in
respect of a Global Note under such circumstances shall not be deemed to be a
new security if the Issuer delivers to the Book-Entry Depositary an Opinion of
Counsel, to the effect that the recapitalization, reorganization, merger or
consolidation or sale of assets, as appropriate, did not result in the creation
of a security materially different from that represented by such Global Note.
SECTION 2.11 Surrender of the Global Notes. In the event of
the redemption, payment or purchase in full of all the Notes represented by any
of the Global Notes, then the applicable Depositary Interest and the applicable
Global Note shall become void and the Book-Entry Depositary shall surrender such
Global Note to the Trustee for cancellation. In the event of a partial
redemption of the Notes represented by a Global Note, the Book-Entry Depositary
shall comply with the requirements of Section 2.7 hereof.
SECTION 2.12 Reports. The Book-Entry Depositary shall promptly
send to the Depositary any notices, reports and other communications received
from the Issuer that are received by the Book-Entry Depositary as holder of the
Global Notes.
ARTICLE III
THE BOOK-ENTRY DEPOSITARY
SECTION 3.1 Certain Duties and Responsibilities. (a) The
Book-Entry Depositary undertakes to perform such duties and only such duties as
are specifically set forth in this Agreement.
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(b) No provision of this Agreement shall be construed to
relieve the Book-Entry Depositary from liability for its own negligent action,
its own negligent failure to act, or its own bad faith or willful misconduct,
except that:
(1) the duties and obligations of the Book-Entry Depositary
with respect to the Global Notes and the Depositary Interests shall be
determined solely by the express provisions of this Agreement and
neither the Book-Entry Depositary, nor its officers, directors,
employees and agents shall be liable except for the performance of such
duties and obligations as are specifically set forth in this Agreement,
and no implied covenants or obligations shall be read into this
Agreement against the Book-Entry Depositary; and
(2) in the absence of bad faith on its part, the Book-Entry
Depositary may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Book-Entry Depositary and
conforming to the requirements of this Agreement, but in the case of
any such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Book-Entry Depositary, the
Book-Entry Depositary shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Agreement.
(c) The Book-Entry Depositary shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the Book-Entry
Depositary, unless it shall be proved that the Book-Entry Depositary was grossly
negligent in ascertaining the pertinent facts.
(d) The Book-Entry Depositary shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in accordance
with the written direction of the Depositary pursuant to Section 2.9 hereof
relating to the time, method and place of conducting any proceeding for any
remedy available to the Book-Entry Depositary, or exercising any power conferred
upon the Book-Entry Depositary, under this Agreement.
(e) No provision of this Agreement will require the Book-Entry
Depositary to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate
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indemnity against such risk or liability is not reasonably assured to it.
(f) Whether or not therein expressly so provided, every
provision of this Agreement relating to the conduct or affecting the liability
of or affording protection to the Book-Entry Depositary shall be subject to the
provisions of this Section.
(g) The Book-Entry Depositary owes no fiduciary duties to any
person by virtue of this Agreement except as expressly set forth herein.
SECTION 3.2 Notice of Default. The Book-Entry Depositary shall
(x) within 90 days after the occurrence of any Event of Default in respect of
the Global Notes of which a Responsible Officer of the Book-Entry Depositary
assigned to its Global Trust Services department has actual knowledge or (y)
promptly after being notified of an Event of Default by the Trustee, transmit by
mail to the Depositary in the manner provided in Section 4.2, notice of such
Event of Default, unless such Event of Default shall have been cured or waived.
SECTION 3.3 Certain Rights of Book-Entry Depositary. Subject
to the provisions of Section 3.1 hereof:
(a) the Book-Entry Depositary may conclusively rely and shall
be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, security, or other paper or
document delivered to it in accordance with the terms of this Agreement and
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers' Certificate,
Issuer Order or Issuer Request, and any resolution of the Board of Directors of
the Issuer may be sufficiently evidenced by a Board Resolution;
(c) the Book-Entry Depositary may consult with counsel and the
advice of such counsel confirmed in writing or any Opinion of Counsel shall be
full and complete authorization and protection with respect to any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon in
accordance with such advice or Opinion of Counsel;
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(d) the Book-Entry Depositary shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, appraisal, bond, debenture, note, coupon, security or other paper or
document, but the Book-Entry Depositary, may (but shall have no obligation to)
make reasonable further inquiry or investigation into such facts or matters
related to the issuance of the Global Notes and, if the Book-Entry Depositary
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Issuer, at the
Issuer's expense, at reasonable times during normal business hours, personally
or by agent or attorney;
(e) the Book-Entry Depositary may execute any of the powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Book-Entry Depositary shall not be responsible for
any misconduct or negligence on the part of any such agent or attorney appointed
with due care;
(f) the Book-Entry Depositary shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement at the
request, order or direction of the Depositary pursuant to this Agreement, unless
the Depositary shall have offered or caused to be offered to the Book-Entry
Depositary security or indemnity reasonably satisfactory to it against the
costs, expenses and liabilities that might be incurred by it in compliance with
such request or direction, provided that such request, order or direction shall
not expose the Book-Entry Depositary to personal liability;
(g) the Book-Entry Depositary shall not be liable for any
action taken or omitted by it in good faith and reasonably believed by it to be
authorized or within the discretion, rights or powers conferred upon it by this
Agreement; and
(h) whenever in the administration of its duties under this
Agreement the Book-Entry Depositary shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Book-Entry Depositary, be deemed to be conclusively proved
and established by an Officers' Certificate delivered to the Book-Entry
Depositary, and such certificate, in the absence of negligence or bad faith on
the part of the Book-Entry Depositary, shall be full warrant to the Book-Entry
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Depositary for any action taken, suffered or omitted by it under the provisions
of the Agreement, upon the faith thereof.
SECTION 3.4 Not Responsible for Recitals or Issuance of Notes.
The recitals contained in the Indenture and in the Notes, except the Trustee's
certificates of authentication, shall be taken as the statements of the Issuer,
and the Book-Entry Depositary assumes no responsibility for their correctness.
The Book-Entry Depositary makes no representation as to (i) the validity or
sufficiency of the Indenture or of the Notes, (ii) the sufficiency of this
Agreement or (iii) the validity, with respect to the Issuer, of this Agreement.
The Book-Entry Depositary shall not be accountable for the use or application by
the Issuer of the proceeds with respect to the Notes.
SECTION 3.5 Money Held in Trust. Money held by the Book-Entry
Depositary in trust hereunder need not be segregated from other funds held by
the Book-Entry Depositary, except to the extent required by law. The Book-Entry
Depositary shall be under no obligation to invest or pay interest on any money
received by it hereunder, except as otherwise agreed in writing with the Issuer.
Any interest accrued on funds deposited with the Book-Entry Depositary under
this Agreement shall be paid to the Issuer from time to time and the Depositary
shall have no claim to any such interest.
SECTION 3.6 Compensation and Reimbursement. The Issuer and
Holdings, jointly and severally agree:
(a) to pay to the Book-Entry Depositary from time to time
reasonable compensation agreed in writing for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law with
regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Book-Entry Depositary upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Book-Entry
Depositary in accordance with any provision of this Agreement (including the
reasonable compensation, expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence, bad faith or willful misconduct; and
(c) to indemnify the Book-Entry Depositary and its directors,
officers, agents and employees for, and to hold it harmless against, any loss,
liability or expense
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incurred without negligence, bad faith on its part, arising out of or in
connection with the acceptance or administration of this Agreement and its
duties hereunder, including the costs and expenses of defending itself against
or investigating any claim of liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The obligations of the Issuer under this Section to compensate
and indemnify the Book-Entry Depositary and to pay or reimburse the Book-Entry
Depositary for reasonable expenses, disbursements and advances shall survive the
satisfaction and discharge of this Agreement or the earlier of the resignation
or the removal of the Book-Entry Depositary. Such obligations shall be a senior
claim to that of the Notes upon all property and funds held or collected by the
Book-Entry Depositary as such, except funds held in trust for the benefit of the
holders of the Notes.
SECTION 3.7 Book-Entry Depositary Required: Eligibility. At
all times when there is a Book-Entry Depositary hereunder, such Book-Entry
Depositary shall be a corporation organized and doing business under the laws of
the United States of America, any State thereof or the District of Columbia,
having, together with its parent, a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by federal, state or District
of Columbia authority, willing to act on reasonable terms. Such corporation
shall have its principal place of business in the Borough of Manhattan, The City
of New York, if there be such a corporation in such location willing to act upon
reasonable and customary terms and conditions. If such corporation, or its
parent, publishes reports of condition at least annually, pursuant to law or to
the requirements of the aforesaid supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. The Book-Entry Depositary
shall have executed a letter of representations to DTC acceptable in form and
substance to DTC and the Issuer with respect to the Depositary Interests. The
Book-Entry Depositary hereunder shall at all times be the Trustee under the
Indenture, subject to receipt by the Issuer of an Opinion of Counsel that the
same Person is precluded by law from acting in such capacities. If at any time
the Book-Entry Depositary shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
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SECTION 3.8 Resignation and Removal, Appointment of Successor.
(a) No resignation or removal of the Book-Entry Depositary and no appointment of
a successor Book-Entry Depositary pursuant to this Article shall become
effective until (i) the approval in writing of a successor Book-Entry Depositary
by the Issuer and the acceptance of the appointment by such successor Book-Entry
Depositary in accordance with the applicable requirements of Section 3.9 hereof
or (ii) the issuance of Registered Notes in accordance with Section 2.4 hereof
and the Indenture.
(b) The Book-Entry Depositary may resign all of its rights and
duties with respect to the Global Notes and the Depositary Interests by giving
written notice thereof to the Issuer and the Depositary in accordance with
Sections 4.1 and 4.2 hereof. The Book-Entry Depositary may be removed at any
time upon 30 days' notice by the filing with it of an instrument in writing
signed on behalf of the Issuer and specifying such removal and the date when it
is intended to become effective. If the instrument of acceptance by a successor
Book-Entry Depositary or the approval by the Issuer required by Section 3.9
hereof shall not have been delivered to the Book-Entry Depositary within 30 days
after the giving of such notice of resignation, the resigning Book-Entry
Depositary may petition any court of competent jurisdiction for the appointment
of a successor Book-Entry Depositary.
(c) If at any time:
(1) the Book-Entry Depositary shall cease to be eligible under
Section 3.7 hereof or shall cease to be eligible as Trustee under the
Indenture, and shall fail to resign after written request therefor by
the Issuer or the Depositary, or
(2) the Book-Entry Depositary shall become incapable of acting
with respect to the Global Notes and the Depositary Interests, or shall
be adjudged bankrupt or insolvent, or a receiver or liquidator of the
Book-Entry Depositary or its property shall be appointed or any public
officer shall take charge or control of the Book-Entry Depositary or
its property or affairs for the purpose of rehabilitation, conservation
or liquidation,
then, in any such case, (i) the Issuer, by Board Resolution, may remove the
Book-Entry Depositary and appoint a successor Book-Entry Depositary and (ii) if
the Issuer does not remove the Book-Entry Depositary and appoint a successor
pursuant to clause (i), the Depositary, upon the direction of holders of at
least a majority of the total aggregate principal
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amount of the Book-Entry Notes outstanding, may petition any court of competent
jurisdiction for the removal of the Book-Entry Depositary with respect to the
Global Notes and the Depositary Interests and the appointment of a successor
Book-Entry Depositary or Book-Entry Depositaries unless Registered Notes have
been issued in accordance with the Indenture. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Book-Entry
Depositary with respect to the Global Notes and the Depositary Interests and
appoint a successor Book-Entry Depositary for the Global Notes and the
Depositary Interests.
(d) If the Book-Entry Depositary shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of
Book-Entry Depositary for any cause, the Issuer, by Board Resolution, shall
promptly appoint a successor Book-Entry Depositary (other than the Issuer) and
shall comply with the applicable requirements of Section 3.9 hereof. If no
successor Book-Entry Depositary with respect to the Notes shall have been so
appointed by the Issuer and accepted appointment in the manner required by
Section 3.9, the Depositary, upon direction of holders of at least a majority of
the total aggregate principal amount of Book-Entry Notes outstanding, may
petition any court of competent jurisdiction for the appointment of a successor
Book-Entry Depositary unless Registered Notes have been issued in accordance
with the Indenture and Section 2.4 hereof.
(e) The Issuer shall give, or shall cause such successor
Book-Entry Depositary to give, notice of each resignation and each removal of a
Book-Entry Depositary and each appointment of a successor Book-Entry Depositary
to the Depositary in accordance with Section 4.2 hereof. Each notice shall
include the name of the successor Book-Entry Depositary and the address of its
Corporate Trust Office.
(f) If a Book-Entry Depositary hereunder shall resign, it
shall not be relieved of any responsibility for its actions or omissions
hereunder solely by virtue of such resignation.
SECTION 3.9 Acceptance of Appointment by Successor. (a) In
case of the appointment hereunder of a successor Book-Entry Depositary, every
such successor Book-Entry Depositary so appointed shall execute, acknowledge and
deliver to the Issuer and to the retiring Book-Entry Depositary an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Book-Entry Depositary shall become effective and such successor
Book-Entry Depositary, without any further act, deed or conveyance, shall become
vested with all the rights, powers,
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agencies and duties of the retiring Book-Entry Depositary, with like effect as
if originally named as Book-Entry Depositary hereunder; but, on the request of
the Issuer or the successor Book-Entry Depositary, such retiring Book-Entry
Depositary shall, upon payment of all amounts due and payable to it pursuant to
Section 3.6 hereof, execute and deliver an instrument transferring to such
successor Book-Entry Depositary all the rights and powers of the retiring
Book-Entry Depositary and shall duly assign, transfer and deliver to such
successor Book-Entry Depositary all property and money held by such retiring
Book-Entry Depositary hereunder. Any retiring Book-Entry Depositary shall,
nonetheless, retain a prior claim upon all property or funds held or collected
by such Book-Entry Depositary to secure any amounts then due it pursuant to
Section 3.6 hereof. The Book-Entry Depositary will not be liable for any acts or
omissions of any successor Book-Entry Depositary appointed pursuant to Section
3.8 hereof.
(b) Upon request of any such successor Book-Entry Depositary,
the Issuer shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Book-Entry Depositary all such
rights, powers and agencies referred to in paragraph (a) of this Section.
(c) No successor Book-Entry Depositary shall accept its
appointment unless at the time of such acceptance such successor Book-Entry
Depositary shall be eligible to serve as such under this Article.
(d) Upon acceptance of appointment by any successor Book-Entry
Depositary as provided in this Section, the Issuer shall give notice thereof to
the Depositary in accordance with Section 4.02 hereof. If the acceptance of
appointment is substantially contemporaneous with the resignation of the
Book-Entry Depositary, then the notice called for by the preceding sentence may
be combined with the notice called for by Section 3.8 hereof. If the Issuer
fails to give such notice within ten days after acceptance of appointment by the
successor Book-Entry Depositary, the successor Book-Entry Depositary shall cause
such notice to be given at the expense of the Issuer.
SECTION 3.10 Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Book-Entry Depositary may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Book-Entry Depositary
shall be a party, or any corporation succeeding to all or substantially all the
agency business of the Book-Entry Depositary, shall be the successor of the
Book-Entry Depositary hereunder, without the execution or
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filing of any paper or any further act on the part of any of the parties hereto;
provided that such corporation shall be otherwise eligible to serve as
Book-Entry Depositary under this Article.
SECTION 3.11 Compliance with Letter of Representations. As
long as DTC or its nominee is the Depositary, the Book-Entry Depositary shall
comply with all of its representations made to DTC in the Letter of
Representations, and any successor Book-Entry Depositary shall comply with all
representations made to DTC in a similar letter of representations in form and
substance acceptable to DTC and the Issuer.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.1 Notices to Book-Entry Depositary or Issuer. Any
request, demand, authorization, direction, notice, consent, or waiver or other
document provided or permitted by this Agreement to be made upon, given or
furnished to, or filed with:
(a) the Book-Entry Depositary by the Depositary, by the
Trustee or by the Issuer shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if made, given, furnished or filed in
writing and personally delivered or mailed, by overnight delivery or certified
mail, postage prepaid, to the Book-Entry Depositary at the following address:
The Chase Manhattan Bank
450 West 33rd Street
New York, NY 10001
Attention: Global Trust Services
Facsimile: 1-212-946-7799
or at any other address furnished in writing by the Book-
Entry Depositary to the Depositary, the Trustee and the
Issuer; or
(b) the Issuer by the Book-Entry Depositary or by the
Depositary shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if made, given, furnished or filed in writing and
personally delivered or mailed, by overnight delivery or first-class postage
prepaid, to the following address:
RSL Communications PLC
767 Fifth Avenue
Suite 4300
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New York, New York 10153
with a copy to:
George E.B. Maguire
Debevoise & Plimpton
875 Third Avenue
New York, NY 10022
Facsimile: (212) 909-6836
or at any other addresses furnished in writing to the Book-Entry Depositary by
the Issuer. Any communication sent pursuant to this Section 4.1 shall be deemed
given when delivered, if personally delivered or sent by overnight delivery and
three days after deposit in the U.S. mail, if sent by certified mail.
SECTION 4.2 Notice to the Depositary; Waiver. Where this
Agreement provides for notice to the Depositary of any event, such notice shall
be sufficiently given (unless otherwise herein expressly provided or as provided
in the Letter of Representations) if in writing and mailed, first-class postage
prepaid, to the Depositary at the address that the Depositary has notified in
writing to the Book-Entry Depositary, in each case not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. Where this Agreement provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by the Depositary shall be filed with the Book-Entry
Depositary, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the
Book-Entry Depositary shall constitute a sufficient notification for every
purpose hereunder.
SECTION 4.3 Effect of Headings and Table of Contents. The
Article and Section headings herein are for convenience only and shall not
affect the construction hereof.
SECTION 4.4 Successors and Assigns. All covenants and
agreements in this Agreement and the Notes by the Issuer shall bind its
successors and assigns, whether so expressed or not.
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SECTION 4.5 Separability Clause. In case any provision in this
Agreement or in the Notes shall be invalid, illegal or unenforceable, the
validity. legality and enforceability of the remaining provisions hereof and
thereof shall not in any way be affected or impaired thereby.
SECTION 4.6 Benefits of Agreement. Nothing in this Agreement,
the Notes, or the Indenture, express or implied, shall give to any Person, other
than the parties hereto and their successors hereunder, any benefits or any
legal or equitable right, remedy or claim under this Agreement. By the
acceptance of the Depositary Interests representing the Notes, the Depositary
shall be party to this Agreement and shall be bound by all of the terms and
conditions hereof and of the Indenture and the Notes.
SECTION 4.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, BUT
WITHOUT GIVING EFFECT TO AP PLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
SECTION 4.8 Jurisdiction. The Issuer agrees that any legal
suit, action or proceeding against the Issuer brought by the Depositary or the
Book-Entry Depositary arising out of or based upon this Agreement may be
instituted in any state or federal court in the Borough of Manhattan, The City
of New York, and waives any objection which it may now or hereafter have to the
laying of venue of any such proceeding and irrevocably submits to the
non-exclusive jurisdiction of such courts in any suit, action or proceeding. The
Issuer has appointed RSL Communications N. America, Inc., 767 Fifth Avenue,
Suite 4300, New York, New York 10153, as its authorized agent (together with any
successor, the "Authorized Agent") upon whom process may be served in any legal
suit, action or proceeding arising out of or based upon this Agreement which may
be instituted in any state or federal court in the Borough of Manhattan, The
City of New York, by the Depositary or the Book-Entry Depositary and expressly
accepts the nonexclusive jurisdiction of any such court in respect of any such
action. The Issuer represents and warrants that the Authorized Agent has agreed
to act as said agent for service of process, and the Issuer agrees to take any
and all action, including the filing of any and all documents and instruments,
that may be necessary to continue such appointment in full force and effect as
aforesaid. Service of process upon the Authorized Agent shall be deemed, in
every respect, effective service of process upon the Issuer. Notwithstanding the
foregoing, any action based on this
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Agreement may be instituted by the Book-Entry Depositary in any competent court
in England.
SECTION 4.9 Counterparts. This Agreement may be executed in
any number of counterparts by the parties hereto on separate counterparts, each
of which, when so executed and delivered, shall be deemed an original, but all
of which shall together constitute one and the same instrument.
SECTION 4.10 Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times during normal business hours at the
Corporate Trust Office of the Book-Entry Depositary for inspection by the
Depositary.
SECTION 4.11 Satisfaction and Discharge. Upon Issuer Request
to terminate this Agreement, this Agreement shall cease to be of further effect
and the Book-Entry Depositary shall execute proper instruments acknowledging
satisfaction and discharge of this Agreement, when (i) the Indenture has been
satisfied and discharged pursuant to the provisions thereof or Registered Notes
have been issued and all Global Notes have been canceled in accordance with the
provisions of the Indenture and Sections 3.05 and 3.09 thereof, (ii) the Issuer
has paid or caused to be paid all sums payable hereunder by the Issuer and (iii)
the Issuer has delivered to the Book-Entry Depositary an Officers' Certificate,
stating that all conditions precedent provided herein relating to the
satisfaction and discharge of this Agreement have been complied with.
SECTION 4.12 Amendments. The Issuer and the Book-Entry
Depositary may amend this Agreement without the consent of the Depositary:
(a) to cure any ambiguity, defect or inconsistency, provided
that such amendment or supplement does not adversely affect the rights of the
Depositary or any holder of Book-Entry Notes;
(b) to evidence the succession of another person to the Issuer
(when a similar amendment with respect to the Indenture is being executed) and
the assumption by any such successor of the covenants of the Issuer herein;
(c) to evidence or provide for a successor Book-Entry
Depositary,
(d) to make any amendment, change or supplement that does not
adversely affect the Depositary or holders of Book-Entry Notes;
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(e) to add to the covenants of the Issuer or the
Book-Entry Depositary; or
(f) to comply with the United States federal and United
Kingdom. securities laws.
No amendment may be made to this Agreement that adversely
affects the Depositary without the consent of the Depositary and no amendment
may be made to this Agreement that adversely affects the holders of Book-Entry
Notes without the consent of a majority of the aggregate principal amount of
Book-Entry Notes outstanding.
SECTION 4.13 Book-Entry Depositary To Sign Amendments. The
Book-Entry Depositary shall sign any amendment authorized pursuant to Section
4.12 hereof if the amendment does not adversely affect the rights, duties,
liabilities or immunities of the Book-Entry Depositary. If it does, the
Book-Entry Depositary may but need not sign it. In signing such amendment the
Book-Entry Depositary shall be entitled to receive indemnity satisfactory to it
and to receive, and shall be fully protected in reasonably relying upon. an
Officers' Certificate (which need only cover the matters set forth in clause (a)
below) and an Opinion of Counsel to the effect that:
(a) such amendment is authorized or permitted by this
Agreement;
(b) the Issuer has all necessary corporate power and authority
to execute and deliver the amendment and that the execution, delivery and
performance of such amendment has been duly authorized by all necessary
corporate action;
(c) the execution, delivery and performance of the amendment
do not conflict with, or result in the breach of or constitute a default under
any of the terms, conditions or provisions of (i) this Agreement, (ii) the
Memorandum and Articles of Association of the Issuer, (iii) any law or
regulation applicable to the Issuer, (iv) any material order, writ, injunction
or decree of any court or governmental instrumentality applicable to the Issuer
or (v) any material agreement or instrument to which the Issuer is subject; and
(d) such amendment has been duly and validly executed and
delivered by the Issuer, and this Agreement together with such amendment
constitutes a legal, valid and binding obligation of the Issuer enforceable
against the Issuer in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency or similar laws affecting
the enforcement of
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creditors' rights generally and general equitable
principles.
[signature page follows]
25
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed as of the date first written above.
RSL COMMUNICATIONS PLC
By: /s/ Itzhak Fisher
_____________________
Name: Itzhak Fisher
Title: President and CEO
THE CHASE MANHATTAN BANK
as Book-Entry Depositary
By /s/ Andrew Deck
______________________
Name: Andrew Deck
Title: Vice President
With respect to the provisions of Section 3.6 only
RSL COMMUNICATIONS, LTD.
By: /s/ Itzhak Fisher
____________________
Name: Itzhak Fisher
Title: President and CEO
<PAGE>
EXECUTION COPY
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated as of May 13, 1999, among
RSL Communications PLC, a United Kingdom corporation (the "Issuer"), RSL
Communications, Ltd. (the "Guarantor") and Goldman, Sachs & Co. (the
"Purchaser") as the purchaser of the 9 7/8% Senior Notes due 2009 (the "Notes")
of the Issuer.
The Issuer proposes to issue and sell to the Purchaser upon the terms set
forth in the Purchase Agreement the Securities (as defined herein). As an
inducement to the Purchaser to enter into the Purchase Agreement and in
satisfaction of a condition to the obligations of the Purchaser thereunder, the
Issuer agrees with the Purchaser for the benefit of holders (as defined herein)
from time to time of the Registrable Securities (as defined herein) as follows:
1. Certain Definitions.
For purposes of this Exchange and Registration Rights Agreement, the
following terms shall have the following respective meanings:
"Base Interest" shall mean the interest that would otherwise accrue on
the Securities under the terms thereof and the Indenture, without giving
effect to the provisions of this Agreement.
The term "broker-dealer" shall mean any broker or dealer registered
with the Commission under the Exchange Act.
"Closing Date" shall mean May 13, 1999.
"Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular
purpose.
"Effective Time," in the case of (i) an Exchange Registration, shall
mean the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective and (ii) a Shelf Registration, shall
mean the time and date as of which the Commission declares the Shelf
Registration Statement effective or as of which the Shelf Registration
Statement otherwise becomes effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(d) hereof.
"Exchange Registration Statement" shall have the meaning assigned
thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto in
Section 2(a) hereof.
<PAGE>
The term "holder" shall mean the Purchaser and other persons who
acquire Registrable Securities from time to time (including any successors
or assigns), in each case for so long as such person owns any Registrable
Securities.
"Indenture" shall mean the Indenture, dated as of May 13, 1999 (the
"Indenture"), between the Issuer, the Guarantor and The Chase Manhattan
Bank, as Trustee (the "Trustee"), as the same shall be amended from time to
time.
The term "person" shall mean a corporation, association, partnership,
organization, business, limited liability company, individual, government
or political subdivision thereof or governmental agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated May 6,
1999, between the Purchaser, the Issuer and the Guarantor relating to the
Securities.
"Registrable Securities" shall mean the Securities; provided, however,
that a Security shall cease to be a Registrable Security when (i) in the
circumstances contemplated by Section 2(a) hereof, the Security has been
exchanged for an Exchange Security in an Exchange Offer as contemplated in
Section 2(a) (provided that any Exchange Security received by a
broker-dealer in an Exchange Offer in exchange for a Registrable Security
that was not acquired by the broker-dealer directly from the Issuer will
also be a Registrable Security through and including the earlier of the
90th day after the Exchange Offer is completed or such time as such
broker-dealer no longer owns such Security); (ii) in the circumstances
contemplated by Section 2(b) hereof, a Shelf Registration Statement
registering such Security under the Securities Act has been declared or
becomes effective and such Security has been sold or otherwise transferred
by the holder thereof pursuant to and in a manner contemplated by such
effective Shelf Registration Statement; (iii) such Security is sold
pursuant to Rule 144 (or any successor provision) under circumstances in
which any legend borne by such Security relating to restrictions on
transferability thereof, under the Securities Act or otherwise, is removed
by the Issuer or pursuant to the Indenture; (iv) such Security is eligible
to be sold pursuant to paragraph (k) of Rule 144; or (v) such Security
shall cease to be outstanding.
"Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section
2(a) hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of the
Issuer within the meaning of Rule 405, (ii) a holder who acquires Exchange
Securities outside the ordinary course of such holder's business, (iii) a
holder who has arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of a distribution (within
the meaning of the Securities Act) of the Exchange Securities and (iv) a
holder that is a broker-dealer, but only with respect to Exchange
Securities received by such broker-dealer pursuant to an Exchange Offer in
exchange for Registrable Securities acquired by the broker-dealer directly
from the Issuer.
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<PAGE>
"Rule 144," "Rule 405" and "Rule 415" shall mean, in each case, such
rule promulgated under the Securities Act (or any successor provision), as
the same shall be amended from time to time.
"Securities" shall mean the Notes to be issued and sold to the
Purchaser, and securities issued in exchange therefor or in lieu thereof
pursuant to the Indenture. Each security will be unconditionally guaranteed
as to payment of principal, interest and any other amounts due thereon by
the Guarantor, as provided by the Indenture, under which the Notes will be
issued (the "Notes Guarantee"). Unless the context otherwise requires, any
reference herein to "Security," or "Exchange Security" or a "Registrable
Security" shall include a reference to the related Notes Guarantee.
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in Section
2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned thereto
in Section 2(b) hereof.
"Special Interest" shall have the meaning assigned thereto in Section
2(c) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a "Section"
or "clause" refers to a Section or clause, as the case may be, of this Exchange
and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Issuer agrees to file
under the Securities Act and use its reasonable best efforts to cause to be
declared effective, a registration statement relating to an offer to exchange
(such registration statement, the "Exchange Registration Statement", and such
offer, the "Exchange Offer") any and all of the Securities for a like aggregate
principal amount of debt securities issued by the Issuer and guaranteed by the
Guarantor, which debt securities and guarantees are substantially identical to
the Securities (and are entitled to the benefits of a trust indenture which is
substantially identical to the Indenture or is the Indenture, and which has been
qualified under the Trust Indenture Act), except that it has been registered
pursuant to an effective registration statement under the Securities Act and
does not contain registration rights, transfer restrictions and provisions for
the additional interest contemplated in Section 2(c) below (such new debt
securities hereinafter called "Exchange Securities"). The Issuer agrees to use
its reasonable best efforts to cause the Exchange Registration Statement to
become effective under the Securities Act and to consummate the Exchange Offer
as soon as practicable, but no later than 270 days after the Closing Date. The
Exchange Offer will
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<PAGE>
be registered under the Securities Act on the appropriate form required by the
Commission and will comply with all applicable tender offer rules and
regulations under the Exchange Act and all applicable federal and state
securities laws. The Issuer further agrees to use its reasonable best efforts to
hold the Exchange Offer open for at least 30 days and issue Exchange Securities
for all Registrable Securities that have been properly tendered and not
withdrawn on or prior to the expiration of the Exchange Offer. The Exchange
Offer will be deemed to have been "completed" only if the debt securities and
related guarantees received by holders other than Restricted Holders in the
Exchange Offer for Registrable Securities are, upon receipt, transferable by
each such holder without need for further compliance with Section 5 of the
Securities Act (except for the requirement to deliver a prospectus included in
the Exchange Registration Statement applicable to resales by broker-dealers of
Exchange Securities received by such broker-dealer pursuant to an Exchange Offer
in exchange for Registrable Securities other than those acquired by the
broker-dealer directly from the Issuer) and without material restrictions under
the blue sky or securities laws of a substantial majority of the States of the
United States of America. The Exchange Offer shall be deemed to have been
completed upon the earlier to occur of (i) the Issuer having exchanged the
Exchange Securities for all outstanding Registrable Securities pursuant to the
Exchange Offer and (ii) the Issuer having exchanged, pursuant to the Exchange
Offer, Exchange Securities for all Registrable Securities that have been
properly tendered and not withdrawn before the expiration of the Exchange Offer,
which shall be on a date that is at least 30 days following the commencement of
the Exchange Offer. The Issuer agrees (x) to include in the Exchange
Registration Statement a prospectus for use in connection with any resales of
Exchange Securities by a broker-dealer, other than resales of Exchange
Securities received by a broker-dealer pursuant to an Exchange Offer in exchange
for Registrable Securities acquired by the broker-dealer directly from the
Issuer, and (y) to keep such Exchange Registration Statement effective for a
period (the "Resale Period") beginning when Exchange Securities are first issued
in the Exchange Offer and ending upon the earlier of (x) the expiration of the
90th day after the Exchange Offer has been completed and (y) such time as such
broker-dealers no longer own any Registrable Securities. With respect to such
Exchange Registration Statement, each broker-dealer that holds Exchange
Securities received in an Exchange Offer in exchange for Registerable Securities
not acquired by it directly from the Issuer shall have the benefit of the rights
of indemnification and contribution set forth in Sections 6(a), (c), (d) and (e)
hereof.
(b) If prior to the time the Exchange Offer is completed existing
Commission interpretations are changed such that the debt securities or any
related guarantees received by holders other than Restricted Holders in the
Exchange Offer for Registrable Securities are not or would not be, upon receipt,
transferable by each such holder without need for further compliance with
Section 5 of the Securities Act (except for the requirement to deliver a
prospectus included in the Exchange Registration Statement applicable to resales
by broker-dealers of Exchange Securities received by such broker-dealer pursuant
to an Exchange Offer in exchange for Registrable Securities other than those
acquired by the broker-dealer directly from the Issuer) in lieu of conducting
the Exchange Offer contemplated by Section 2(a), the Issuer shall file under the
Securities Act and use its reasonable best efforts to cause to be declared
effective a "shelf" registration statement providing for the registration of,
and the sale on a continuous or delayed basis by the holders of, all of the
Registrable Securities, pursuant to Rule 415 or any similar rule that may be
adopted by the Commission (such filing, the "Shelf Registration" and such
registration statement, the "Shelf Registration Statement"). In addition, in the
event that
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<PAGE>
the Purchaser shall not have resold all of the Securities initially purchased by
it from the Issuer pursuant to the Purchase Agreement, prior to the consummation
of the Exchange Offer, the Issuer shall file under the Securities Act as soon as
practicable a Shelf Registration Statement, which if permitted by the Commission
may be by way of a post-effective amendment to the Exchange Registration
Statement. The Issuer agrees to use its best efforts to cause the Shelf
Registration Statement to become or be declared effective no later than 270 days
after the Closing Date and to keep such Shelf Registration Statement
continuously effective for a period ending on the earlier of (x) the second
anniversary of the Closing Date and (y) such time as there are no longer any
Registrable Securities outstanding. The Issuer further agrees to supplement or
make amendments to the Shelf Registration Statement, as and when required by the
rules, regulations or instructions applicable to the registration form used by
the Issuer for such Shelf Registration Statement or by the Securities Act or
rules and regulations promulgated thereunder for a shelf registration, and the
Issuer agrees to furnish to the holders of the Registrable Securities copies of
any such supplement or amendment to such registration statement prior to its
being used or promptly following its filing with the Commission. Attached as
Exhibit A hereto is a form of Notice of Registration Statement and Selling
Securityholder Questionnaire to be completed by holders in connection with a
Shelf Registration pursuant to this Section 2(b).
(c) In the event that (i) the Exchange Offer has not been completed, or a
Shelf Registration Statement has not been declared effective, within 270 days
after the Closing Date or (ii) any Exchange Registration Statement or Shelf
Registration Statement required by Section 2(a) or 2(b) hereof is filed and
declared effective but shall thereafter, prior to the time such Exchange
Registration Statement or Shelf Registration Statement is no longer required to
be effective pursuant to Section 2(a) or 2(b) hereof, as the case may be, either
be withdrawn by the Issuer or shall become subject to an effective stop order
issued pursuant to Section 8(d) of the Securities Act suspending the
effectiveness of such registration statement (except as specifically permitted
herein) without being succeeded immediately by an additional registration
statement filed and declared effective (each such event referred to in clauses
(i) and (ii), a "Registration Default" and each period during which a
Registration Default has occurred and is continuing, a "Registration Default
Period"), then, as liquidated damages for such Registration Default, subject to
the provisions of Section 9(b), special interest ("Special Interest"), in
addition to the Base Interest, shall accrue at a per annum rate of 0.50% for the
Registration Default Period. The Special Interest shall be payable in cash
semi-annually in arrears on each May 15 and November 15. Special Interest, if
any, shall be computed on the basis of a 360 day year of twelve 30-day months
and the number of days actually elapsed.
(d) The Issuer and the Guarantor shall take all actions reasonably
necessary or advisable to be taken by them to ensure that the transactions
contemplated herein are effected as so contemplated.
(e) Any reference herein to a registration statement as of any time shall
be deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time and any reference herein to any
post-effective amendment to a registration statement as of any time shall be
deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time.
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<PAGE>
3. Registration Procedures.
(a) (i) In connection with the Exchange Offer, the Issuer shall comply with
all of the provisions of Section 3(d) and Section 3(e) below, shall use its
reasonable best efforts to effect such exchange to permit the sale of
Registrable Securities being sold in accordance with the intended method or
methods of distribution thereof, and, prior to effectiveness of the Exchange
Offer Registration Statement, shall, if required by the Commission, provide a
supplemental letter to the Commission (A) stating that the Issuer is registering
the Exchange Offer in reliance on the position of the Commission enunciated in
Exxon Capital Holdings Corporation (available May 13, 1988) and Morgan Stanley
and Co., Inc. (available June 5, 1991) and (B) including a representation that
the Issuer has not entered into any arrangement or understanding with any person
to distribute the Exchange Securities to be received in the Exchange Offer and
that, to the best of the Issuer's information and belief, each holder
participating in the Exchange Offer is acquiring the Exchange Securities in its
ordinary course of business and has no arrangement or understanding with any
person to participate in the distribution of the Exchange Securities received in
the Exchange Offer.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each holder of Registrable Securities
shall furnish, upon the request of the Issuer, prior to the consummation
thereof, a written representation to the Issuer (which may be contained in the
letter of transmittal contemplated by the Exchange Offer Registration Statement)
to the effect that (A) it is not an affiliate of the Issuer or the Guarantor,
(B) it is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any person to participate in, a distribution
of the Exchange Securities to be issued in the Exchange Offer and (C) it is
acquiring the Exchange Securities in its ordinary course of business. In
addition, all such holders of Registrable Securities shall otherwise cooperate
in the Issuer's and the Guarantor's preparations for the Exchange Offer. Each
holder hereby acknowledges and agrees that any broker-dealer and any such
holder, in either case, exchanging Registrable Securities in the Exchange Offer,
in connection with the resale of Exchange Securities acquired in the Exchange
Offer, (1) could not under Commission policy as in effect on the date of this
Agreement rely on the position of the Commission enunciated in Morgan Stanley
and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation
(available May 13, 1988), as interpreted in the Commission's letter to Shearman
& Sterling dated July 2, 1993, and similar no-action letters, and (2) must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with a secondary resale transaction and that such a
secondary resale transaction should be covered by an effective registration
statement containing the selling security holder information required by Item
507 or 508, as applicable, of Regulation S-K if the resales are of Exchange
Securities obtained by such holder in exchange for Registrable Securities
acquired by such holder directly from the Issuer.
If the Issuer files a registration statement pursuant to Section 2(a) or
Section 2(b), the following provisions shall apply:
(b) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, the Issuer shall qualify the Indenture under
the Trust Indenture Act.
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(c) In the event that such qualification would require the appointment of a
new trustee under the Indenture, the Issuer shall appoint a new trustee
thereunder pursuant to the applicable provisions of such Indenture.
(d) In connection with the Issuer's obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, the Issuer shall, as soon as reasonably
possible (or as otherwise specified):
(i) prepare and file with the Commission an Exchange Registration
Statement on any form which may be utilized by the Issuer and which shall
permit the Exchange Offer and resales of Exchange Securities by
broker-dealers during the Resale Period to be effected as contemplated by
Section 2(a), and use its reasonable best efforts to cause such Exchange
Registration Statement to become effective and to consummate the Exchange
Offer, as soon as practicable thereafter, but no later than 270 days after
the Closing Date;
(ii) as soon as practicable prepare and file with the Commission such
amendments and supplements to such Exchange Registration Statement and the
prospectus included therein as may be necessary to effect and maintain the
effectiveness of such Exchange Registration Statement for the periods and
purposes contemplated in Section 2(a) hereof and as may be required by the
applicable rules and regulations of the Commission and the instructions
applicable to the form of such Exchange Registration Statement, and
promptly provide each broker-dealer holding Exchange Securities with such
number of copies of the prospectus included therein (as then amended or
supplemented), in conformity in all material respects with the requirements
of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder, as such broker-dealer reasonably
may request prior to the expiration of the Resale Period, for use in
connection with resales of Exchange Securities;
(iii) promptly notify the Purchaser and its counsel and (with respect
to clause C, E and F below only), any broker-dealer that has advised the
Issuer or the Guarantor that it is entitled to a resale prospectus during
the Resale Period, and confirm such advice in writing, (A) when such
Exchange Registration Statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has been
filed, and, with respect to such Exchange Registration Statement or any
post-effective amendment, when the same has become effective, (B) of any
comments by the Commission and by the Blue Sky or securities commissioner
or regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such Exchange Registration
Statement or prospectus or for additional information, (C) of the issuance
by the Commission of any stop order suspending the effectiveness of such
Exchange Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the representations and
warranties of the Issuer and the Guarantor contemplated by Section 5 hereof
cease to be true and correct in all material respects, (E) of the receipt
by the Issuer or the Guarantor of any notification with respect to the
suspension of the qualification of the Exchange Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose or (F) at any time during the Resale Period when a prospectus is
required to be delivered under the Securities Act, that such Exchange
Registration Statement, prospectus, prospectus amendment or
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supplement or post-effective amendment thereto does not conform in all
material respects to the applicable requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing;
(iv) in the event that the Issuer would be required, pursuant to
Section 3(d)(iii)(F) above, to notify any broker-dealer entitled to a
resale prospectus during the Resale Period, prepare and furnish without
delay to each such holder a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers of
such Exchange Securities during the Resale Period, such prospectus shall
conform in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations of
the Commission thereunder and shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of the circumstances then existing;
(v) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of such Exchange Registration Statement
or any post-effective amendment thereto at the earliest practicable date;
(vi) use its reasonable best efforts to (A) register or qualify the
Exchange Securities under the securities laws or blue sky laws of such
jurisdictions in the United States as are contemplated by Section 2(a) no
later than the commencement of the Exchange Offer, (B) keep such
registrations or qualifications in effect and comply with such laws so as
to permit the continuance of offers, sales and dealings therein in such
jurisdictions until the expiration of the Resale Period and (C) take any
and all other actions as may be reasonably necessary or advisable to enable
each broker-dealer holding Exchange Securities to consummate the
disposition thereof in such jurisdictions; provided, however, that neither
the Issuer nor the Guarantor shall be required for any such purpose to (1)
qualify as a foreign corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this Section
3(d)(vi), (2) consent to general service of process in any such
jurisdiction, (3) become subject to any tax or (4) make any changes to its
certificate of incorporation or by-laws or any agreement between it and its
stockholders;
(vii) use its reasonable best efforts to obtain the consent or approval
of each governmental agency or authority, whether federal, state or local,
which may be required to effect the Exchange Registration, the Exchange
Offer and the offering and sale of Exchange Securities by broker-dealers
during the Resale Period;
(viii) provide a CUSIP number for all Exchange Securities, not later
than the applicable Effective Time;
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to its security holders as soon as
practicable but no later than eighteen months after the effective date of
such Exchange Registration Statement, an earning statement of the Issuer,
the Guarantor and their subsidiaries complying with
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<PAGE>
Section 11(a) of the Securities Act (including, at the option of the
Issuer, Rule 158 thereunder).
(e) In connection with the Issuer's obligations with respect to the Shelf
Registration, if applicable, the Issuer shall use its reasonable best efforts to
cause the Shelf Registration to permit the disposition of the Registrable
Securities by the holders thereof in accordance with the intended method or
methods of disposition thereof provided for in the Shelf Registration Statement.
In connection therewith, the Issuer shall, as soon as reasonably possible (or as
otherwise specified):
(i) prepare and file with the Commission, as soon as practicable, a
Shelf Registration Statement on any form which may be utilized by the
Issuer and which shall permit the disposition of the Registrable Securities
in accordance with the intended method or methods thereof, as specified in
writing by the holders of the Registrable Securities, and use its
reasonable best efforts to cause such Shelf Registration Statement to
become or be declared effective as soon as practicable thereafter, but no
later than 270 days after the Closing Date;
(ii) as soon as practicable prepare and file with the Commission such
amendments and supplements to such Shelf Registration Statement and the
prospectus included therein as may be necessary to effect and maintain the
effectiveness of such Shelf Registration Statement for the period specified
in Section 2(b) hereof and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to the form
of such Shelf Registration Statement, and furnish to the holders of the
Registrable Securities copies of any such supplement or amendment
simultaneously with or prior to its being used or filed with the
Commission;
(iii) comply with the provisions of the Securities Act with respect to
the disposition of all of the Registrable Securities covered by such Shelf
Registration Statement in accordance with the intended methods of
disposition by the holders thereof provided for in such Shelf Registration
Statement;
(iv) provide (A) the holders of the Registrable Securities to be
included in such Shelf Registration Statement, (B) the underwriters (which
term, for purposes of this Exchange and Registration Rights Agreement,
shall include a person deemed to be an underwriter within the meaning of
Section 2(11) of the Securities Act), if any, thereof, (C) any sales or
placement agent therefor, (D) counsel for any such underwriter or agent and
(E) not more than one counsel for all the holders of such Registrable
Securities the opportunity to participate in the preparation of such Shelf
Registration Statement, each prospectus included therein or filed with the
Commission and each amendment or supplement thereto;
(v) for a reasonable period prior to the filing of such Shelf
Registration Statement, and throughout the period specified in Section
2(b), make available at reasonable times at the Issuer's principal place of
business or such other reasonable place for inspection by the persons
referred to in Section 3(e)(iv) who shall certify to the Issuer that they
have a current intention to sell the Registrable Securities pursuant to the
Shelf Registration such financial and other information and books and
records of the Issuer as reasonably requested, and cause the officers,
employees, counsel and
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independent certified public accountants of the Issuer to respond to such
inquiries, as shall be reasonably necessary, in the judgment of the
respective counsel referred to in such Section, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act;
provided, however, that each such party shall be required to maintain in
confidence and not disclose to any other person any information or records
reasonably designated by the Issuer as being confidential, until such time
as (A) such information becomes a matter of public record (whether by
virtue of its inclusion in such registra tion statement or otherwise), or
(B) such person shall be required so to disclose such information pursuant
to a subpoena or order of any court or other governmental agency or body
having jurisdiction over the matter (subject to the requirements of such
order, and only after such person shall have given the Issuer prompt prior
written notice of such requirement), or (C) after the Effective Time and
after having requested, without compliance, that the Issuer include such
information in such Shelf Registration Statement or an amendment or
supplement thereto, such information is required to be set forth in such
Shelf Registration Statement or the prospectus included therein or in an
amendment to such Shelf Registration Statement or an amendment or
supplement to such prospectus in order that such Shelf Registration
Statement, prospectus, amendment or supplement thereto, as the case may be,
complies with applicable requirements of the Federal securities laws and
the rules and regulations of the Commission and does not contain an untrue
statement of a material fact or omit to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(vi) promptly notify the selling holders of Registrable Securities, any
sales or placement agent therefor and any underwriter thereof (which
notification may be made through any managing underwriter that is a
representative of such underwriter for such purpose) and confirm such
advice in writing, (A) when such Shelf Registration Statement or the
prospectus included therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to such Shelf
Registration Statement or any post-effective amendment, when the same has
become effective, (B) of any comments by the Commission and by the Blue Sky
or securities commissioner or regulator of any state with respect thereto
or any request by the Commission for amendments or supplements to such
Shelf Registration Statement or prospectus or for additional information,
(C) of the issuance by the Commission of any stop order suspending the
effectiveness of such Shelf Registration Statement or the initiation or
threatening of any proceedings for that purpose, (D) if at any time the
representations and warranties of the Issuer and the Guarantor contemplated
by Section 3(e)(xv) or Section 5 hereof cease to be true and correct in all
material respects, (E) of the receipt by the Issuer and the Guarantor of
any notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (F) if at any time when
a prospectus is required to be delivered under the Securities Act, such
Shelf Registration Statement, prospectus, prospectus amendment or
supplement or post-effective amendment does not conform in all material
respects to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission thereunder or
contains an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing;
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<PAGE>
(vii) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of such registration statement or any
post-effective amendment thereto at the earliest practicable date;
(viii) if requested by any managing underwriter or underwriters, any
placement or sales agent or any holder of Registrable Securities, promptly
incorporate in a prospectus supplement or post-effective amendment such
information as is required by the applicable rules and regulations of the
Commission and as such managing underwriter or underwriters, such agent or
such holder specifies should be included therein relating to the terms of
the sale of such Registrable Securities, including information with respect
to the principal amount of Registrable Securities being sold by such holder
or agent or to any underwriters, the name and description of such holder,
agent or underwriter, the offering price of such Registrable Securities and
any discount, commission or other compensation payable in respect thereof,
the purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable Securities to
be sold by such holder or agent or to such underwriters; and make all
required filings of such prospectus supplement or post-effective amendment
promptly after notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment;
(ix) upon request, furnish to each holder of Registrable Securities,
each placement or sales agent, if any, therefor, each underwriter, if any,
thereof and the respective counsel referred to in Section 3(e)(iv) an
executed copy (or, in the case of a holder of Registrable Securities, a
conformed copy) of such Shelf Registration Statement, each such amendment
and supplement thereto (in each case including all exhibits thereto (in the
case of a holder of Registrable Securities, upon request) and documents
incorporated by reference therein) and such number of copies of such Shelf
Registration Statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested by such
holder, agent or underwriter, as the case may be) and of the prospectus
included in such Shelf Registration Statement (including each preliminary
prospectus and any summary prospectus), in conformity in all material
respects with the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission
thereunder, and such other documents, as such holder, agent, if any, and
underwriter, if any, may reasonably request in order to facilitate the
offering and disposition of the Registrable Securities owned by such
holder, offered or sold by such agent or underwritten by such underwriter
and to permit such holder, agent and underwriter to satisfy the prospectus
delivery requirements of the Securities Act; and, subject to Sections 2(a)
and (b) and 3(e)(vi)(C), (E) and (F), the Issuer hereby consents to the use
of such prospectus (including such preliminary and summary prospectus) and
any amendment or supplement thereto by each such holder and by any such
agent and underwriter, in each case in the form most recently provided to
such person by the Issuer, in connection with the offering and sale of the
Registrable Securities covered by the prospectus (including such
preliminary and summary prospectus) or any supplement or amendment thereto;
(x) use its reasonable best efforts to (A) register or qualify the
Registrable Securities to be included in such Shelf Registration Statement
under such securities laws or blue sky laws of such jurisdictions as any
holder of such Registrable Securities and each placement or sales agent, if
any, therefor and underwriter, if any,
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<PAGE>
thereof shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions
during the period the Shelf Registration is required to remain effective
under Section 2(b) above or, if a shorter period, for so long as may be
necessary to enable any such holder, agent or underwriter to complete its
distribution of Securities pursuant to such Shelf Registration Statement
and (C) take any and all other actions as may be reasonably necessary or
advisable to enable each such holder, agent, if any, and underwriter, if
any, to consummate the disposition in such jurisdictions of such
Registrable Securities; provided, however, that neither the Issuer nor the
Guarantor shall be required for any such purpose to (1) qualify as a
foreign corporation in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this Section 3(e)(x), (2)
consent to general service of process in any such jurisdiction, (3) become
subject to any tax or (4) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its stockholders;
(xi) use its reasonable best efforts to obtain the consent or approval
of each governmental agency or authority, whether Federal, state or local,
which may be required to effect the Shelf Registration or the offering or
sale in connection therewith or to enable the selling holder or holders to
offer, or to consummate the disposition of, their Registrable Securities;
(xii) cooperate with the holders of the Registrable Securities and the
managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold,
which certificates shall be printed, lithographed or engraved, or produced
by any combination of such methods, and which shall not bear any
restrictive legends; and, in the case of an underwritten offering, enable
such Registrable Securities to be in such denominations and in such names
as the managing underwriters may request at least two business days prior
to any sale of the Registrable Securities;
(xiii) provide a CUSIP number for all Registrable Securities, not later
than the applicable Effective Time;
(xiv) enter into one or more underwriting agreements, engagement
letters, agency agreements, "best efforts" underwriting agreements or
similar agreements, as appropriate, including customary provisions relating
to indemnification and contribu tion, and take such other actions in
connection therewith as any holders of Registrable Securities aggregating
at least 20% aggregate principal amount of the Registrable Securities at
the time outstanding shall reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities; provided, that
the Issuer shall not be required to enter into any such agreement more than
once with respect to all of the Registrable Securities and may delay
entering into such agreement until the consummation of any underwritten
public offering which the Issuer shall have then engaged;
(xv) whether or not an agreement of the type referred to in Section
3(e)(xiv) hereof is entered into and whether or not any portion of the
offering contemplated by the Shelf Registration is an underwritten offering
or is made through a placement or sales agent or any other entity, (A) make
such representations and warranties to the
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holders of the Registrable Securities covered by such Shelf Registration
and the placement or sales agent, if any, therefor and the underwriters, if
any, thereof in form, substance and scope as are customarily made in
connection with an offering of debt securities pursuant to any appropriate
agreement or to a registration statement filed on the form applicable to
the Shelf Registration; (B) obtain an opinion of counsel to the Issuer and
the Guarantor in customary form and covering such matters, of the type
customarily covered by such an opinion, as the managing underwriters, if
any, or as any holders of at least 20% in aggregate principal amount of the
Registrable Securities at the time outstanding may reasonably request,
addressed to such holder or holders and the placement or sales agent, if
any, therefor and the underwriters, if any, thereof and dated the effective
date of such Shelf Registration Statement (and if such Shelf Registration
Statement contemplates an underwritten offering of a part or all of the
Registrable Securities, dated the date of the closing under the
underwriting agreement relating thereto) (it being agreed that the matters
to be covered by such opinion shall include the due incorporation of the
Issuer, the Guarantor and their material subsidiaries; the qualification of
the Issuer, the Guarantor and their material U.S. subsidiaries to transact
business as foreign corporations; the due authorization, execution and
delivery of the relevant agreement of the type referred to in Section
3(d)(xiv) hereof; the due authorization, execution, authentication and
issuance, and the validity and enforceability, of the Registrable
Securities; the absence of material legal or governmental proceedings
involving the Issuer; the absence of a breach by the Issuer or any of its
subsidiaries of, or a default under, material agreements binding upon the
Issuer or any subsidiary of the Issuer; the absence of governmental
approvals required to be obtained in connection with the Shelf
Registration, the offering and sale of the Registrable Securities, this
Exchange and Registration Rights Agreement or any agreement of the type
referred to in Section 3(e)(xiv) hereof, except such approvals as may be
required under state securities or blue sky laws; the material compliance
as to form of such Shelf Registration Statement and any documents
incorporated by refer ence therein and of the Indenture with the
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder, respectively; and,
subject to reasonable and customary limitations and exceptions; and, such
counsel shall also state that, as of the date of the opinion and of the
Shelf Registration Statement or most recent post-effective amendment
thereto, as the case may be, the absence from such Shelf Registration
Statement and the prospectus included therein, as then amended or
supplemented, and from the documents incorporated by reference therein (in
each case other than the financial statements and related footnotes and
schedules and other financial information contained therein) of an untrue
statement of a material fact or the omission to state therein a material
fact necessary to make the statements therein not misleading (in the case
of such documents, in the light of the circumstances existing at the time
that such documents were filed with the Commission under the Exchange
Act)); (C) obtain a "cold comfort" letter or letters from the independent
certified public accountants of the Issuer addressed to the selling holders
of Registrable Securities, the placement or sales agent, if any, therefor
or the underwriters, if any, thereof, dated (i) the effective date of such
Shelf Registration Statement and (ii) the effective date of any prospectus
supple ment to the prospectus included in such Shelf Registration Statement
or post-effective amendment to such Shelf Registration Statement which
includes unaudited or audited financial statements as of a date or for a
period subsequent to that of the latest such statements included in such
prospectus (and, if such Shelf Registration Statement contemplates an
underwritten offering
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<PAGE>
pursuant to any prospectus supplement to the prospectus included in such
Shelf Registration Statement or post-effective amendment to such Shelf
Registration Statement which includes unaudited or audited financial
statements as of a date or for a period subsequent to that of the latest
such statements included in such prospectus, dated the date of the closing
under the underwriting agreement relating thereto), such letter or letters
to be in customary form and covering such matters of the type customarily
covered by letters of such type; (D) deliver such documents and
certificates, including officers' certificates, as may be reasonably
requested by any holders of at least a 20% in aggregate principal amount of
the Registrable Securities at the time outstanding or the placement or
sales agent, if any, therefor and the managing underwriters, if any,
thereof to evidence the accuracy of the representations and warranties made
pursuant to clause (A) above or those contained in Section 5(a) hereof and
the compliance with or satisfaction of any agreements or conditions
contained in the underwriting agreement or other agreement entered into by
the Issuer or the Guarantor; and (E) undertake such obligations relating to
expense reimbursement, indemnification and contribution as are provided in
Section 6 hereof;
(xvi) notify in writing each holder of Registrable Securities of any
proposal by the Issuer to amend or waive any provision of this Exchange and
Registration Rights Agreement pursuant to Section 9(h) hereof and of any
amendment or waiver effected pursuant thereto, each of which notices shall
contain the text of the amendment or waiver proposed or effected, as the
case may be;
(xvii) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate as
a member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Rules of Fair Practice and the
By-Laws of the National Association of Securities Dealers, Inc. ("NASD") or
any successor thereto, as amended from time to time) thereof, whether as a
holder of such Registrable Securities or as an underwriter, a placement or
sales agent or a broker or dealer in respect thereof, or otherwise, assist
such broker-dealer in complying with the requirements of such Rules and
By-Laws, including by (A) if such Rules or By-Laws shall so require,
engaging a "qualified independent underwriter" (as defined in the schedules
thereto (or any successor thereto)) to participate in the preparation of
the Shelf Registration Statement relating to such Registrable Securities,
to exercise usual standards of due diligence in respect thereto and, if any
portion of the offering contemplated by such Shelf Registration Statement
is an underwritten offering or is made through a placement or sales agent,
to recommend the yield of such Registrable Securities, (B) indemnifying any
such qualified independent underwriter to the extent of the indemnification
of underwriters provided in Section 6 hereof, and (C) providing such
information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules of Fair Practice
of the NASD; and
(xviii) comply with all applicable rules and regulations of the
Commission, and make generally available to its security holders as soon as
practicable but in any event not later than eighteen months after the
effective date of such Shelf Registration Statement, an earning statement
of the Issuer, the Guarantor and their subsidiaries complying with Section
11(a) of the Securities Act (including, at the option of the Issuer, Rule
158 thereunder).
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<PAGE>
(f) In the event that the Issuer would be required, pursuant to Section
3(e)(vi)(F) above, to notify the selling holders of Registrable Securities, the
placement or sales agent, if any, therefor and the managing underwriters, if
any, thereof, as applicable, the Issuer shall without delay prepare and furnish
to each such holder, to each placement or sales agent, if any, and to each such
underwriter, if any, a reasonable number of copies of a prospectus supplemented
or amended so that, as thereafter delivered to purchasers of Registrable
Securities, such prospectus shall conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission thereunder and shall not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing. Each holder of Registrable Securities
agrees that upon receipt of any notice from the Issuer pursuant to Section
3(e)(vi)(F) hereof, such holder shall forthwith discontinue the disposition of
Registrable Securities pursuant to the Shelf Registration Statement applicable
to such Registrable Securities until such holder shall have received copies of
such amended or supplemented prospectus, and if so directed by the Issuer, such
holder shall deliver to the Issuer, (at the Issuer's expense) all copies, other
than permanent file copies, then in such holder's possession of the prospectus
covering such Registrable Securities at the time of receipt of such notice.
(g) The Issuer may require each holder of Registrable Securities as to
which any Shelf Registration pursuant to Section 2(b) is being effected to
furnish to the Issuer such information regarding such holder and such holder's
intended method of distribution of such Registrable Securities as the Issuer may
from time to time reasonably request in writing, but only to the extent that
such information is required in order to comply with the Securities Act. Each
such holder agrees to notify the Issuer as promptly as practicable of any
inaccuracy or change in information previously furnished by such holder to the
Issuer or of the occurrence of any event in either case as a result of which any
prospectus relating to such Shelf Registration contains or would contain an
untrue statement of a material fact regarding such holder or such holder's
intended method of disposition of such Registrable Securities or omits to state
any material fact regarding such holder or such holder's intended method of
disposition of such Registrable Securities required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing, and promptly to furnish to the Issuer any
additional information required to correct and update any previously furnished
information or required so that such prospectus shall not contain, with respect
to such holder or the disposition of such Registrable Securities, an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing.
(h) Until the expiration of two years after the Closing Date, the Issuer
will not, and will not permit any of its "affiliates" (as defined in Rule 144)
to, resell any of the Securities that have been reacquired by any of them except
pursuant to an effective registration statement under the Securities Act.
4. Registration Expenses.
The Issuer and the Guarantor, jointly and severally, agree to bear and to
pay or cause to be paid promptly, upon request, all expenses incident to the
Issuer's and the Guarantor's performance of or compliance with this Exchange and
Registration Rights Agreement,
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including (a) all Commission and any NASD registration, filing and review fees
and expenses, (b) all fees and expenses in connection with the qualification of
the Securities for offering and sale under the State securities and blue sky
laws referred to in Section 3(e)(x) hereof and determination of their
eligibility for investment under the laws of such jurisdictions as any managing
underwriters or the holders of such Registrable Securities may designate,
including any reasonable fees and disbursements of counsel for the selling
holders or underwriters in connection with such qualification and determination,
(c) all expenses relating to the preparation, printing, production, distribution
and reproduction of each registration statement required to be filed hereunder,
each prospectus included therein or prepared for distribution pursuant hereto,
each amendment or supplement to the foregoing, the expenses of preparing the
Securities for delivery and the expenses of reproducing and distributing any
underwriting agreements, agreements among underwriters, selling agreements and
"Blue Sky" or legal investment memoranda and all other documents in connection
with the offering, sale or delivery of Securities to be disposed of (including
certificates representing the Securities), (d) messenger, telephone and delivery
expenses of the Issuer and the Guarantor relating to the offering, sale or
delivery of Securities and the preparation of documents referred in clause (c)
above, (e) fees and expenses of the Trustee under the Indenture, any agent of
the Trustee and any counsel for the Trustee and of any collateral agent or
custodian, (f) internal expenses (including all salaries and expenses of the
Issuer's and the Guarantor's officers and employees performing legal or
accounting duties), (g) fees, disbursements and expenses of counsel and
independent certified public accountants of the Issuer and the Guarantor
(including the expenses of any opinions or "cold comfort" letters required by or
incident to such performance and compliance), (h) reasonable fees, disbursements
and expenses of any "qualified independent underwriter" engaged pursuant to
Section 3(e)(xvii) hereof (i) reasonable fees, disbursements and expenses of one
counsel for the holders of Registrable Securities retained in connection with an
Exchange Registration and a Shelf Registration, as selected by the holders of at
least a majority in aggregate principal amount of the Registrable Securities
being registered (which counsel shall be reasonably satisfactory to the Issuer),
(j) any fees charged by securities rating services for rating the Securities and
(k) fees, expenses and disbursements of any other persons, including special
experts, retained by the Issuer or the Guarantor in connection with such
registration (collectively, the "Registration Expenses"). To the extent that any
Registration Expenses are incurred, assumed or paid by any holder of Registrable
Securities or any placement or sales agent therefor or underwriter thereof, the
Issuer and the Guarantor, jointly and severally, shall reimburse such person for
the full amount of the Registration Expenses so incurred, assumed or paid
promptly after receipt of a request therefor. It is understood, however, that
except as provided in this Section and in Section 6, the holders of the
Registrable Securities being registered shall pay all of their own costs and
expenses, including, but not limited to, all agency fees and commissions and
underwriting discounts and commissions attributable to the sale of such
Registrable Securities and the fees and disbursements of any counsel or other
advisors or experts retained by such holders (severally or jointly, other than
the counsel and experts specifically refereed to above).
5. Representations and Warranties.
The Issuer and the Guarantor, jointly and severally, represents and
warrants to, and agrees with, the Purchaser and each of the holders from time to
time of Registrable Securities that:
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(a) Each registration statement covering Registrable Securities and
each prospectus (including any preliminary or summary prospectus) contained
therein or furnished pursuant to Section 3(e) or Section 3(d) hereof and
any further amendments or supplements to any such registration statement or
prospectus, when it becomes effective or is filed with the Commission, as
the case may be, and, in the case of an underwritten offering of
Registrable Securities, at the time of the closing under the underwriting
agreement relating thereto, will conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; and at all times subsequent to the Effective Time
when a prospectus would be required to be delivered under the Securities
Act, other than from (i) such time as a notice has been given to holders of
Registrable Securities pursuant to Section 3(e)(vi)(F) or Section
3(d)(iii)(F) hereof until (ii) such time as the Issuer furnishes an amended
or supplemented prospectus pursuant to Section 3(f) or Section 3(d)(iv)
hereof, each such registration statement, and each prospectus (including
any summary prospectus) contained therein or furnished pursuant to Section
3(e) or Section 3(d) hereof, as then amended or supple mented, will conform
in all material respects to the applicable requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Issuer by or on behalf of a holder of Registrable Securities
expressly for use therein.
(b) Any documents incorporated by reference in any prospectus referred
to in Section 5(a) hereof, when they become or became effective or are or
were filed with the Commission, as the case may be, will conform or
conformed in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and none of such documents will
contain or contained an untrue statement of a material fact or will omit or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Issuer by or on behalf of a holder of Registrable Securities
expressly for use therein.
(c) The compliance by the Issuer and the Guarantor with all of the
provisions of this Exchange and Registration Rights Agreement and the
consummation of the transactions herein contemplated will not (i) result in
any violation of the provisions of the Memorandum and Articles of
Association of the Issuer, the Memorandum of Association or Bye-laws of the
Guarantor, (ii) result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Issuer or the Guarantor or any of their subsidiaries is a party or by which
the Issuer or the Guarantor or any of their subsidiaries is bound or to
which any of the property or assets of the Issuer or the Guarantor or any
of their subsidiaries is subject, nor
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(iii) will such action result in any violation of any existing statute,
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Issuer, the Guarantor or any of their
subsidiaries or any of their properties except, in the case of clauses (ii)
and (iii) above, such breaches or violations which would not, individually
or in the aggregate, be reasonably likely to have a material adverse
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Issuer, the
Guarantor and their subsidiaries taken as a whole; and no consent,
approval, authorization, order, registration or qualification of or with
any such governmental agency is required for the issue and sale of the
Securities or the consummation by the Issuer or the Guarantor of the
transactions contemplated by this Registration Rights Agreement, except the
registration under the Securities Act of the Securities, qualification of
the Indenture under the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
State securities or blue sky laws in connection with the offering and
distribution of the Securities.
(d) This Exchange and Registration Rights Agreement has been duly
authorized, executed and delivered by the Issuer and the Guarantor.
6. Indemnification.
(a) Indemnification by the Issuer and the Guarantor. The Issuer and the
Guarantor, jointly and severally, will indemnify and hold harmless each of the
holders of Registrable Securities included in a registration statement filed
pursuant to Section 2(a) or 2(b) hereof, and each person who participates as a
placement or sales agent or as an underwriter in any offering or sale of such
Registrable Securities against any losses, claims, damages or liabilities, joint
or several, to which such holder, agent or underwriter may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
registration statement under which such Registrable Securities were registered
under the Securities Act, or any preliminary, final or summary prospectus
contained therein or furnished by the Issuer or the Guarantor to any such
holder, agent or underwriter, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, and will
reimburse such holder, such agent and such underwriter for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Issuer and the Guarantor shall not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, or preliminary, final or
summary prospectus, or amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Issuer or the Guarantor by
or on behalf of holders of Registrable Securities expressly for use therein;
(b) Indemnification by the Holders and any Agents and Underwriters. The
Issuer may require, as a condition to including any Registrable Securities in
any registration statement filed pursuant to Section 2(b) hereof and to entering
into any underwriting agreement with respect thereto, that the Issuer shall have
received an undertaking
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reasonably satisfactory to it from the holder of such Registrable Securities and
from each underwriter named in any such underwriting agreement, severally and
not jointly, to (i) indemnify and hold harmless the Issuer and the Guarantor,
and all other holders of Registrable Securities, against any losses, claims,
damages or liabilities to which the Issuer or the Guarantor or such other
holders of Registrable Securities may become subject, under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in such registration
statement, or any preliminary, final or summary prospectus contained therein or
furnished by the Issuer to any such holder, agent or underwriter, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Issuer or the Guarantor
by or on behalf of such holder or underwriter expressly for use therein, and
(ii) reimburse the Issuer or the Guarantor for any legal or other expenses
reasonably incurred by the Issuer or the Guarantor in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that no such holder shall be required to undertake
liability to any person under this Section 6(b) for any amounts in excess of the
dollar amount of the proceeds to be received by such holder from the sale of
such holder's Registrable Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party pursuant to the indemnification provisions of or
contemplated by this Section 6, notify such indemnifying party in writing of the
commencement of such action; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party other than under the indemnification provisions of or
contemplated by Section 6(a) or 6(b) hereof. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party
of the commencement thereof, and such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly noti fied, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, such indemnifying party shall
not be liable to such indemnified party for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
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(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) are unavailable to or insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 6(d) were determined by
pro rata allocation (even if the holders or any agents or underwriters or all of
them were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 6(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), no holder shall be required to contribute any
amount in excess of the amount by which the dollar amount of the proceeds
received by such holder from the sale of any Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) exceeds the
amount of any damages which such holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission, and no underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The holders' and any underwriters' obligations in this
Section 6(d) to contribute shall be several in proportion to the principal
amount of Registrable Securities registered or underwritten, as the case may be,
by them and not joint.
(e) The obligations of the Issuer and the Guarantor under this Section 6
shall be in addition to any liability which the Issuer or the Guarantor may
otherwise have and shall extend, upon the same terms and conditions, to each
officer, director and partner of each holder, agent and underwriter and each
person, if any, who controls any holder, agent or underwriter within the meaning
of the Securities Act; and the obligations of the holders and any agents or
underwriters contemplated by this Section 6 shall be in addition to any
liability which the respective holder, agent or underwriter may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of the Issuer and the Guarantor (including any person who, with his
consent, is named in any registration statement as about to become a director of
the Issuer or the Guarantor) and to each
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person, if any, who controls the Issuer or the Guarantor within the meaning of
the Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities covered
by the Shelf Registration are to be sold pursuant to an underwritten offering,
the managing underwriter or underwriters thereof shall be designated by the
holders of at least a majority in aggregate principal amount of the Registrable
Securities to be included in such offering, provided that such designated
managing underwriter or underwriters is or are reasonably acceptable to the
Issuer.
(b) Participation by Holders. Each holder of Registrable Securities hereby
agrees with each other such holder that no such holder may participate in any
underwritten offering hereunder unless such holder (i) agrees to sell such
holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
8. Rule 144.
Each of the Issuer and the Guarantor covenants to the holders of
Registrable Securities that to the extent it shall be required to do so under
the Exchange Act, it shall timely file the reports required to be filed by it
under the Exchange Act or the Securities Act (including the reports under
Section 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of
Rule 144 adopted by the Commission under the Securities Act) and the rules and
regulations adopted by the Commission thereunder, and shall take such further
action as any holder of Registrable Securities may reasonably request, all to
the extent required from time to time to enable such holder to sell Registrable
Securities without registration under the Securities Act within the limitations
of the exemption provided by Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar or successor rule or regulation
hereafter adopted by the Commis sion. Upon the request of any holder of
Registrable Securities in connection with that holder's sale pursuant to Rule
144, the Issuer or the Guarantor, as applicable, shall deliver to such holder a
written statement as to whether it has complied with such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Issuer represents, warrants, covenants
and agrees that it has not granted, and shall not grant, registration rights
with respect to Registrable Securities or any other securities which would be
inconsistent with the terms contained in this Exchange and Registration Rights
Agreement.
(b) Specific Performance. The parties hereto acknowledge that there would
be no adequate remedy at law if any party fails to perform any of their
respective obligations hereunder and that each party may be irreparably harmed
by any such failure, and accordingly agree that each party, in addition to any
other remedy to which they may be entitled at law or in equity, shall be
entitled to compel specific performance of the respective obligations of any
other party under this Exchange and Registration Rights
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Agreement in accordance with the terms and conditions of this Exchange and
Registration Rights Agreement, in any court of the United States or any State
thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: If to the Issuer or the
Guarantor, to it at 767 Fifth Avenue, Suite 4300, New York, New York 10153, c/o
RSL Communications, N. America, Inc., Attention: Avery Fischer, Esq. with a copy
to Debevoise & Plimpton, 875 Third Avenue, New York, New York 10022, Attention:
George Maguire, Esq., and if to a holder, to the address of such holder set
forth in the security register or other records of the Issuer, or to such other
address as the Issuer or any such holder may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
(d) Parties in Interest. All the terms and provisions of this Exchange and
Registration Rights Agreement shall be binding upon, shall inure to the benefit
of and shall be enforceable by the parties hereto and the holders from time to
time of the Registrable Securities and the respective successors and assigns of
the parties hereto and such holders. In the event that any transferee of any
holder of Registrable Securities shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be deemed a
beneficiary hereof for all purposes and such Registrable Securities shall be
held subject to all of the terms of this Exchange and Registration Rights
Agreement, and by taking and holding such Registrable Securities such transferee
shall be entitled to receive the benefits of, and be conclusively deemed to have
agreed to be bound by, all of the applicable terms and provisions of this
Exchange and Registration Rights Agreement. If the Issuer shall so request, any
such successor, assign or transferee shall acknowledge in writing that such
successor, assign, or transferee will acquire and hold the Registrable
Securities subject to all of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and Registration
Rights Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof) made by
or on behalf of the Purchaser or any holder of Registrable Securities, any
director, officer or partner of such holder, any agent or underwriter or any
director, officer or partner thereof, or any controlling person of any of the
foregoing, and shall survive delivery of and payment for the Registrable
Securities pursuant to the Purchase Agreement and the transfer and registration
of Registrable Securities by such holder and the consummation of an Exchange
Offer.
(f) LAW GOVERNING. THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted for
convenience only, do not constitute a part of this Exchange and Registration
Rights Agreement and shall not affect
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in any way the meaning or interpretation of this Exchange and Registration
Rights Agreement.
(h) Entire Agreement; Amendments. This Exchange and Registration Rights
Agreement and the other writings referred to herein (including the Indenture and
the form of Securities) or delivered pursuant hereto which form a part hereof
contain the entire understanding of the parties with respect to its subject
matter. This Exchange and Registration Rights Agreement supersedes all prior
agreements and understandings between the parties with respect to its subject
matter. This Exchange and Registration Rights Agreement may be amended and the
observance of any term of this Exchange and Registration Rights Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the Issuer and the
holders of at least a majority in aggregate principal amount of the Registrable
Securities at the time outstanding. Each holder of any Registrable Securities at
the time or thereafter outstanding shall be bound by any amendment or waiver
effected pursuant to this Section 9(h), whether or not any notice, writing or
marking indicating such amendment or waiver appears on such Registrable
Securities or is delivered to such holder. Notwithstanding the foregoing, a
waiver or consent to departure from the provisions hereof that relates
exclusively to the rights of holders whose Registrable Securities are being
tendered pursuant to the Exchange Offer and that does not affect directly or
indirectly the rights of other holders whose Registrable Securities are not
being tendered pursuant to such Exchange Offer may be given by the holders of at
least a majority of the outstanding principal amount of Registrable Securities
being tendered or registered.
(i) Inspection. For so long as this Exchange and Registration Rights
Agreement shall be in effect, this Exchange and Registration Rights Agreement
and a complete list of the names and addresses of all the holders of Registrable
Securities shall be made available for inspection and copying on any business
day by any holder of Registrable Securities for proper purposes only (which
shall include any purpose related to the rights of the holders of Registrable
Securities under the Securities, the Indenture and this Agreement) at the
offices of the Issuer at the address thereof set forth in Section 9(c) above and
at the office of the Trustee under the Indenture.
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(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
Agreed to and accepted as of the date referred to above.
RSL COMMUNICATIONS PLC
By: /s/ Itzhak Fisher
-------------------------------
Name: Itzhak Fisher
Title: President CEO
RSL COMMUNICATIONS, LTD.
By: /s/ Itzhak Fisher
-------------------------------
Name: Itzhak Fisher
Title: President and CEO
GOLDMAN, SACHS & CO.
By: /s/ Goldman, Sachs & Co.
-------------------------------
(Goldman, Sachs & Co.)
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Exhibit A
RSL COMMUNICATIONS PLC
RSL COMMUNICATIONS LTD.
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE](1)
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in RSL Communications PLC's (the
"Issuer") $175,000,000 aggregate principal amount at maturity 9 7/8% Senior
Notes due 2009 (the "Notes") are held. The Notes are unconditionally guaranteed
as to payment of principal, interest and any other amounts due thereon (the
"Notes Guarantee") by RSL Communications, Ltd. (the "Guarantor"). The Notes and
the Notes Guarantee, collectively, are the "Securities".
The Issuer is in the process of registering the Securities under the
Securities Act of 1933 for resale by the beneficial owners thereof. In order to
have their Securities included in the registration statement, beneficial owners
must complete and return the enclosed Notice of Registration Statement and
Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy
of the enclosed materials as soon as possible as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by [DEADLINE FOR RESPONSE]. Please forward a copy
of the enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact [ ] , Attention:
[ ].
- --------
(1) Not less than 28 calendar days from date of mailing.
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<PAGE>
RSL Communications PLC
RSL Communications, Ltd.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Exchange and Registration Rights
Agreement (the "Exchange and Registration Rights Agreement"), between RSL
Communications PLC (the "Issuer"), RSL Communications, Ltd. (the "Guarantor")
and the Purchaser named therein. Pursuant to the Exchange and Registration
Rights Agreement, the Issuer has filed with the United States Securities and
Exchange Commission (the "Commission") a registration statement on Form [___]
(the "Shelf Registration Statement") for the registration and resale under Rule
415 of the Securities Act of 1933, as amended (the "Securities Act"), of the
Issuer's $175,000,000 aggregate principal amount at maturity 9 7/8% Senior Notes
due 2009 (the "Notes"). The Notes are unconditionally guaranteed as to payment
of principal, interest and any other amounts due thereon (the "Notes Guarantee")
by RSL Communications, Ltd. (the "Guarantor"). The Notes Guarantee together with
the Notes are the "Securities". A copy of the Exchange and Registration Rights
Agreement is attached hereto. All capitalized terms not otherwise defined herein
shall have the meanings ascribed thereto in the Exchange and Registration Rights
Agreement.
Each beneficial owner of Registrable Securities (as defined below) is
entitled to have the Registrable Securities beneficially owned by it included in
the Shelf Registration Statement. In order to have Registrable Securities
included in the Shelf Registration Statement, this Notice of Registration
Statement and Selling Securityholder Questionnaire ("Notice and Questionnaire")
must be completed, executed and delivered to the Issuer's counsel at the address
set forth herein for receipt ON OR BEFORE [DEADLINE FOR RESPONSE]. Beneficial
owners of Registrable Securities who do not complete, execute and return this
Notice and Questionnaire by such date (i) will not be named as selling
securityholders in the Shelf Registration Statement and (ii) may not use the
Prospectus forming a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Furthermore, pursuant to the Exchange and Registration Rights Agreement, you may
be liable to the Issuer, the Guarantor and other selling securityholders for any
losses that result from inaccuracies or omissions in the information you are
requested to provide herein. Accordingly, holders and beneficial owners of
Registrable Securities are advised to consult their own securities law counsel
regarding the consequences of being named or not being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
The term "Registrable Securities" is defined in the Exchange and
Registration Rights Agreement.
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ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and listed below in Item (3).
The undersigned, by signing and returning this Notice and Questionnaire, agrees
to be bound with respect to such Registrable Securities by the terms and
conditions of this Notice and Questionnaire and the Exchange and Registration
Rights Agreement, including, without limitation, Section 6 of the Registration
Rights Agreement, as if the undersigned Selling Securityholder were an original
party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf
Registration Statement, the Selling Securityholder will be required to deliver
to the Issuer and Trustee the Notice of Transfer set forth in Appendix A to the
Prospectus and as Exhibit B to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to
the Issuer and represents and warrants that such information is accurate and
complete:
<PAGE>
QUESTIONNAIRE
(a) Full Legal Name of Selling Securityholder:
---------------------------------------------------------------------------
(i) Full Legal Name of Registered Holder (if not the same
as in (a) above) of Registrable Securities Listed in
Item (3) below:
---------------------------------------------------------------------------
(ii) Full Legal Name of DTC Participant (if applicable and
if not the same as (i) above) Through Which Registrable
Securities Listed in Item (3) below are Held:
---------------------------------------------------------------------------
(b) Address for Notices to Selling Securityholder:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Telephone:
----------------------------------
Fax:
----------------------------------------
Contact Person:
------------------------------
(c) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(i) Principal amount of Registrable Securities beneficially
owned:
------------------------------------------------
CUSIP No(s). of such Registrable Securities:
--------------------------
(ii) Principal amount of Securities other than Registrable
Securities beneficially owned:
------------------------
CUSIP No(s). of such other Securities:
--------------------------------
<PAGE>
(iii) Principal amount of Registrable Securities which the
undersigned wishes to be included in the Shelf
Registration Statement:
------------------------------
CUSIP No(s). of such Registrable Securities to be included in the Shelf
Registration Statement:
-----------------------------------------------
(d) Beneficial Ownership of Other Securities of the Issuer and
the Guarantor:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other securities
of the Issuer or the Guarantor, other than the Securities listed above in Item
(3).
State any exceptions here:
(e) Relationships with the Issuer and the Guarantor:
Except as set forth below, neither the Selling Securityholder nor any of
its affiliates, officers, directors or principal equity holders (5% or more) has
held any position or office or has had any other material relationship with the
Issuer or the Guarantor (or their predecessors or affiliates) during the past
three years.
State any exceptions here:
(f) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item (3) only
as follows (if at all): Such Registrable Securities may be sold from time to
time directly by the undersigned Selling Securityholder or, alternatively,
through underwriters, broker-dealers or agents. Such Registrable Securities may
be sold in one or more transactions at fixed prices, at prevailing market prices
at the time of sale, at varying prices determined at the time of sale, or at
negotiated prices. Such sales may be effected in transactions (which may involve
crosses or block transactions) (i) on any national securities exchange or
quotation service on which the Registered Securities may be listed or quoted at
the time of sale, (ii) in the over-the-counter market, (iii) in transactions
otherwise than on such exchanges or services or in the over-the-counter market,
or (iv) through the writing of options. In connection with sales of the
Registrable Securities or otherwise, the Selling Securityholder may enter into
hedging transactions with broker-dealers, which may in turn engage in short
sales of the Registrable Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Registrable Securities
-2-
<PAGE>
short and deliver Registrable Securities to close out such short positions, or
loan or pledge Registrable Securities to broker-dealers that in turn may sell
such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act and the rules and regulations thereunder,
particularly Regulation M.
In the event that the Selling Securityholder transfers all or any portion
of the Registrable Securities listed in Item (3) above after the date on which
such information is provided to the Issuer, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of
the information contained herein in its answers to Items (1) through (6) above
and the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Issuer and the Guarantor in connection with the
preparation of the Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section
3(d) of the Exchange and Registration Rights Agreement to provide such
information as may be required by law for inclusion in the Shelf Registration
Statement, the Selling Securityholder agrees to promptly notify the Issuer of
any inaccuracies or changes in the information provided herein which may occur
subsequent to the date hereof at any time while the Shelf Registration Statement
remains in effect. All notices hereunder and pursuant to the Exchange and
Registration Rights Agreement shall be made in writing, by hand-delivery,
first-class mail, or air courier guaranteeing overnight delivery as follows:
(i) To the Issuer and the Guarantor:
(c/o RSL Communications, N. America, Inc.)
RSL Communications PLC
RSL Communications, Ltd.
[ ]
[ ]
Attention:
-3-
<PAGE>
(ii) With a copy to:
[ ]
[ ]
[ ]
Attention:
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Issuer 's counsel, the terms of this Notice
and Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by
the respective successors, heirs, personal representatives, and assigns of the
Issuer, the Guarantor and the Selling Securityholder (with respect to the
Registrable Securities beneficially owned by such Selling Securityholder and
listed
-4-
<PAGE>
in Item (3) above. This Agreement shall be governed in all respects by the laws
of the State of New York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Dated:
---------------------
---------------------------------------------------------
Selling Securityholder
(Print/type full legal name of beneficial
owner of Registrable Securities)
By:
-------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE ISSUER'S COUNSEL AT:
[ ]
[ ]
[ ]
[ ]
-5-
<PAGE>
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
RSL Communications PLC
c/o Trustee
[ ]
[ ]
[ ]
Attention: Trust Officer
Re: RSL Communications PLC (the "Issuer")
9 7/8% Senior Notes due 2009
----------------------------
Dear Sirs:
Please be advised that _____________________ has transferred
$___________ aggregate principal amount of the above-referenced Notes pursuant
to an effective Registration Statement on Form [___] (File No. 333-____) filed
by the Issuer.
We hereby certify that the prospectus delivery requirements, if any, of
the Securities Act of 1933, as amended, have been satisfied and that the
above-named beneficial owner of the Notes is named as a "Selling Holder" in the
Prospectus dated ___________, 199_ or in supplements thereto, and that the
aggregate principal amount of the Notes transferred are the Notes listed in such
Prospectus opposite such owner's name.
Dated:
Very truly yours,
------------------------
(Name)
By:
---------------------
(Authorized Signature)
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> JUN-30-1999
<CASH> 320,704
<SECURITIES> 159,135
<RECEIVABLES> 217,159
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 768,400
<PP&E> 455,919
<DEPRECIATION> 81,430
<TOTAL-ASSETS> 1,845,305
<CURRENT-LIABILITIES> 491,180
<BONDS> 1,171,238
0
0
<COMMON> 370
<OTHER-SE> 37,121
<TOTAL-LIABILITY-AND-EQUITY> 1,845,305
<SALES> 0
<TOTAL-REVENUES> 707,981
<CGS> 508,878
<TOTAL-COSTS> 0
<OTHER-EXPENSES> (180)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 60,274
<INCOME-PRETAX> (129,819)
<INCOME-TAX> 0
<INCOME-CONTINUING> (129,819)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (129,819)
<EPS-BASIC> (2.44)
<EPS-DILUTED> (2.44)
</TABLE>
