Exhibit 4.4
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RSL COMMUNICATIONS PLC
as Issuer, with RSL Communications, Ltd. of $300,000,000 in Units,
Each Unit Consisting of $1,000 Principal Amount of Senior Notes Due 2006
of RSL Communications PLC
and One Warrant to Purchase 1.815
Class A Common Shares of RSL Communications, Ltd.
and
THE CHASE MANHATTAN BANK
as Book-Entry Depositary
NOTE DEPOSIT AGREEMENT
Dated as of October 3, 1996
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TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND OTHER GENERAL PROVISIONS .............. 1
SECTION 1.01 Definitions .................................................... 1
SECTION 1.02 Rules of Construction .......................................... 4
ARTICLE TWO
GLOBAL NOTES, DEPOSITARY INTERESTS
AND IAI BENEFICIAL INTERESTS ..................... 4
SECTION 2.01 Deposit of the Global Notes .................................... 4
SECTION 2.02 Book-Entry System .............................................. 4
SECTION 2.03 Registration of Transfer of Depositary Interests ............... 5
SECTION 2.04 Transfer of Global Notes and Depositary Interests; Termination . 5
SECTION 2.05 Cancellation ................................................... 6
SECTION 2.06 Payments in Respect of the Global Notes ........................ 6
SECTION 2.07 Changes in Principal Amount of the Global Notes ................ 7
SECTION 2.08 Record Date .................................................... 7
SECTION 2.09 Action in Respect of the Depositary Interests .................. 7
SECTION 2.10 Changes Affecting the Global Notes ............................. 9
SECTION 2.11 Surrender of the Global Notes .................................. 9
SECTION 2.12 Reports ........................................................ 9
ARTICLE THREE
THE BOOK-ENTRY DEPOSITARY ........................ 9
SECTION 3.01 Certain Duties and Responsibilities ............................ 9
SECTION 3.02 Notice of Default .............................................. 10
SECTION 3.03 Certain Rights of Book-Entry Depositary ........................ 10
SECTION 3.04 Not Responsible for Recitals or Issuance of Notes .............. 11
SECTION 3.05 Money Held in Trust ............................................ 12
SECTION 3.06 Compensation and Reimbursement ................................. 12
SECTION 3.07 Book-Entry Depositary Required: Eligibility .................... 12
SECTION 3.08 Resignation and Removal; Appointment of Successor .............. 13
SECTION 3.09 Acceptance of Appointment by Successor ......................... 14
SECTION 3.10 Merger, Conversion, Consolidation or Succession to Business .... 15
SECTION 3.11 Compliance with Letter of Representations ...................... 15
ARTICLE IV
MISCELLANEOUS PROVISIONS ........................ 15
SECTION 4.01 Notices to Book-Entry Depositary or Note Issuer ................ 15
SECTION 4.02 Notice to the Depositary; Waiver ............................... 16
SECTION 4.03 Effect of Headings and Table of Contents ....................... 16
SECTION 4.04 Successors and Assigns ......................................... 16
SECTION 4.05 Separability Clause ............................................ 17
SECTION 4.06 Benefits of Agreement .......................................... 17
SECTION 4.07 GOVERNING LAW .................................................. 17
SECTION 4.08 Jurisdiction ................................................... 17
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SECTION 4.09 Counterparts ................................................... 17
SECTION 4.10 Inspection of Agreement ........................................ 18
SECTION 4.11 Satisfaction and Discharge ..................................... 18
SECTION 4.12 Amendments ..................................................... 18
SECTION 4.13 Book-Entry Depositary To Sign Amendments ....................... 18
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THIS NOTE DEPOSIT AGREEMENT is made as of this 3rd day of October, 1996 by
and between RSL Communications PLC, a United Kingdom corporation (the "Note
Issuer") and The Chase Manhattan Bank, a New York banking corporation, as
book-entry depositary (the "Book-Entry Depositary").
ARTICLE ONE
DEFINITIONS AND OTHER GENERAL PROVISIONS
SECTION 1.01 Definitions.
The following terms, as used herein, have the following meanings:
"144A Depositary Interest" means the 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 Note
Issuer to the Book-Entry Depositary and bearing the Private Placement Legend
representing the total aggregate principal amount of the Notes sold in reliance
on Rule 144A under the Securities Act.
"Asset Sale" has the meaning set forth in the Indenture.
"Board Resolution" means a duly adopted resolution of the Board of
Directors of either of the Issuers in full force and effect on the date of
certification, certified by any Director, Secretary or Assistant Secretary of
the applicable 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 3.08 hereof.
"Book-Entry Notes" means an indirect beneficial interest in a Global Note
held through a corresponding Depositary Interest.
"Book-Entry Register" has the meaning set forth in Section 2.03 hereof.
"Cedel" means Cedel Bank, societe anonyme.
"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
the date hereof is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Global Trust Services.
"Depositary" means DTC, or any successor, as the holder of the Depositary
Interests as recorded on the Book-Entry Register.
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"Depositary Interests" means each of the 144A Depositary Interests, the
Regulation S Depositary Interests, the IAI Depositary Interests and the
Unrestricted Depositary Interests.
"DTC" means The Depository Trust Company and its nominees.
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear system.
"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, the Regulation S Global
Note and the IAI 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.
"IAI Depositary Interest" means the book-entry interest representing a 100%
beneficial interest in the principal, premium, if any, and interest on the
underlying IAI Global Note, issued to the Depositary by the Book-Entry
Depositary.
"IAI Global Note" means one or more global bearer bonds issued by the Note
Issuer to the Book-Entry Depositary and bearing the Private Placement Legend
representing the total aggregate principal amount of the Notes sold to
Institutional Accredited Investors.
"Indenture" means the indenture dated as of October 3, 1996 among the Note
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.
"Institutional Accredited Investors" means institutional "accredited
investors" as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act.
"Issuer Order" or "Issuer Request" means a written order or request signed
in the name of the Note Issuer by two Officers thereof.
"Letter of Representations" means the Letter of Representations to DTC
dated as of October 2, 1996 from the Note Issuer, the Trustee, the Book-Entry
Depositary and the Warrant Agent (as defined in the Warrant Agreement).
"Note Issuer" means RSL Communications PLC until a successor replaces it
pursuant to the applicable provisions of the Indenture and, thereafter, means
such successor.
"Notes" means the $300,000,000 aggregate principal amount of the Note
Issuer's 12 1/4 % Senior Notes due 2006 issued under the Indenture.
"Offer to Purchase" has the meaning set forth in the Indenture.
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"Officer" means, with respect to the Note 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 Note Issuer, and who shall be reasonably
acceptable to the Book-Entry Depositary.
"Participant" means, with respect to DTC, Euroclear or Cedel, any Person
who has an account with DTC, Euroclear or Cedel, respectively (and, with respect
to DTC, shall include Euroclear and Cedel).
"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.
"Private Placement Legend" means the legend set forth in Section 2.07(g)(i)
of the Indenture.
"Registered Notes" means certificated Notes registered in the name of the
holder thereof issued pursuant to the Indenture in substantially the form of
Exhibit B thereto.
"Regulation S Depositary Interest" means the 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 Note Issuer to the Book-Entry Depositary and bearing the Private Placement
Legend representing the total aggregate principal amount of the Notes sold in
reliance on Regulation S under the Securities Act.
"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.
"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.
"Warrant Agreement" means the agreement relating to the warrants issued as
parts of units together with the Notes, dated as of October 3, 1996, between
Holdings as warrant issuer and The Chase Manhattan Bank, as warrant agent.)
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SECTION 1.02 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;
(5) references herein to interest shall include Liquidated Damages, if any,
(as such term is defined in the Indenture); and
(6) references herein to holders of Depositary Interests shall mean
references to the Depositary.
ARTICLE TWO
GLOBAL NOTES, DEPOSITARY INTERESTS
AND IAI BENEFICIAL INTERESTS
SECTION 2.01 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 Note Issuer and shall issue the Depositary
Interests in accordance with the Letter of Representations. In the event that
the Note Issuer shall issue and execute, and the Trustee, upon the order of the
Note 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
Note Issuer and shall issue the Depositary Interests in such Global Notes to the
Depositary in accordance with the Letter of Representations.
SECTION 2.02 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.
Book-Entry Notes shall be transferable (x) only as units representing authorized
denominations of the Notes, and (y) until the Separation Date (as defined in the
Warrant Agreement and the Indenture), only together with the corresponding
beneficial interests in Global Warrants (as defined in the Warrant Agreement).
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 Note Issuer, the
Trustee, the Book-Entry Depositary or any agent of the Note 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
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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 2.04 hereof
and Section 2.07(a) of the Indenture, no owner of beneficial interests in such
Depositary Interests shall be entitled to receive a 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 2.03 Registration of Transfer of Depositary Interests.
(a) The Note 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 2.03 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
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 2.04 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 in accordance with Section
2.07 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 but not in part pursuant to
Section 2.07(a) of the Indenture, (iii) a Global Note may be exchanged or
replaced pursuant to Sections 2.08 and 2.11 of the Indenture, (iv) any Global
Note may be delivered to the Trustee for cancellation pursuant to Section 2.12
of the Indenture and (v) the Global Notes may be transferred to a successor
Book-Entry Depositary with the prior written consent of the Note 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 Note Issuer and the Trustee in
writing under Section 3.08 hereof that it is unwilling or unable to continue as
Book-Entry Depositary and no successor Book-Entry Depositary has been appointed
by the Note 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 2.07 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.
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If DTC notifies the Note Issuer 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 a successor Depositary
registered as a clearing agency under the Exchange Act is not appointed by the
Note Issuer within 90 days, then the Book-Entry Depositary shall promptly notify
the Trustee 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 2.07 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 Note Issuer, in its sole discretion, determines that the
Global Notes should be exchanged, in whole but not in part, for Registered
Notes, then the Book-Entry Depositary shall promptly notify the Trustee 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 2.07 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 2.05 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 2.04 hereof, be delivered to the
Trustee for cancellation.
SECTION 2.06 Payments in Respect of the Global Notes.
(a) Except for payments made pursuant to an Offer to Purchase with respect
to any Asset Sale 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 Note Issuer with respect to any Asset Sale or Change of Control,
the Book-Entry Depositary shall 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 2.06(a) and 2.06(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 between the Book-Entry Depositary and the
successor Depositary, which shall be reasonably satisfactory to the Note Issuer.
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(d) The Book-Entry Depositary shall forward to the Note Issuer or its
agents at the Note Issuer's cost and expense such information from its records
as the Note Issuer may reasonably request to enable the Note Issuer or its
agents to file necessary reports with governmental agencies, and the Book-Entry
Depositary, the Note 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 2.07 Changes in Principal Amount of the Global Notes.
(a) In the event that the Note 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 4.11 or 4.13 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 Schedule A to
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 of the Notes so redeemed or repurchased.
(b) Pursuant to Section 2.07 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.
SECTION 2.08 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. 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 2.09 Action in Respect of the Depositary Interests.
(a) As soon as practicable after receipt by the Book-Entry Depositary of
notice from the Note 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
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at the close of business on a specified record date (established in accordance
with Section 2.08 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 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 2.08 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 Note 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 Note 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
3.01 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 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-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 2.09(d).
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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 Note Issuer or to which the Note 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 Note Issuer delivers to the Book-Entry
Depositary an Opinion of Counsel, stating 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 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 2.07 hereof.
SECTION 2.12 Reports.
The Book-Entry Depositary shall promptly send to the Depositary any
notices, reports and other communications received from the Note Issuer that are
received by the Book-Entry Depositary as holder of the Global Notes.
ARTICLE THREE
THE BOOK-ENTRY DEPOSITARY
SECTION 3.01 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.
(b) No provision of this Agreement shall be construed to relieve the
Book-Entry Depositary from liability for its own grossly negligent action, its
own grossly 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
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statements, certificates or opinions furnished to the Book-Entry Depositary
and conforming to the requirements of this Agreement, but in the case of any
such statements, 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
direction of the Depositary pursuant to Section 2.09 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 shall 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 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 3.02 Notice of Default.
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, the
Book-Entry Depositary shall transmit by mail to the Depositary in the manner
provided in Section 4.02, notice of such Event of Default, unless such Event of
Default shall have been cured or waived.
SECTION 3.03 Certain Rights of Book-Entry Depositary.
Subject to the provisions of Section 3.01 hereof:
(a) the Book-Entry Depositary may conclusively rely and shall be fully
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;
10
(b) any request, direction, order or demand of the Note 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 Note
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;
(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, in its discretion, may 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 Note Issuer, at the Note 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 gross 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 gross negligence or bad faith on the
part of the Book-Entry Depositary, shall be full warrant to the Book-Entry
Depositary for any action taken, suffered or omitted by it under the provisions
of the Agreement, upon the faith thereof.
SECTION 3.04 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 Note 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
11
or (iii) the validity, with respect to the Note Issuer, of this Agreement. The
Book-Entry Depositary shall not be accountable for the use or application by the
Note Issuer of the proceeds with respect to the Notes.
SECTION 3.05 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 Note Issuer. Any interest accrued on funds
deposited with the Book-Entry Depositary under this Agreement shall be paid to
the Note Issuer from time to time and the Depositary shall have no claim to any
such interest.
SECTION 3.06 Compensation and Reimbursement.
The Note Issuer agrees:
(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 gross
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 incurred without gross negligence, bad faith or willful misconduct 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 Note 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. 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 3.07 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,
12
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 Note 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 Note 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.
SECTION 3.08 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 Note Issuer and the acceptance of the appointment by such
successor Book-Entry Depositary in accordance with the applicable requirements
of Section 3.09 hereof or (ii) the issuance of Registered Notes in accordance
with Section 2.04 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 Note Issuer and the Depositary in accordance with Sections
4.01 and 4.02 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 Note 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 Note Issuer required by Section
3.09 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 3.07
hereof or shall cease to be eligible as Trustee under the Indenture, and shall
fail to resign after written request therefor by the Note 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 Note Issuer, by Board Resolution, may remove the
Book-Entry Depositary and appoint a successor Book-Entry Depositary and (ii) if
the Note 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 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,
13
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 Note Issuer, by Board Resolution, shall promptly
appoint a successor Book-Entry Depositary (other than the Note Issuer) and shall
comply with the applicable requirements of Section 3.09 hereof. If no successor
Book-Entry Depositary with respect to the Notes shall have been so appointed by
the Note Issuer and accepted appointment in the manner required by Section 3.09,
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 2.04 hereof.
(e) The Note 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 4.02 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 3.09 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 Note 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, 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
Note 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 3.06 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 3.06 hereof. The Book-Entry Depositary will not be liable for any acts
or omissions of any successor Book-Entry Depositary appointed pursuant to
Section 3.08 hereof.
(b) Upon request of any such successor Book-Entry Depositary, the Note
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.
14
(d) Upon acceptance of appointment by any successor Book-Entry Depositary
as provided in this Section, the Note 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 3.08 hereof. If the Note
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 Note 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 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 Note Issuer.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.01 Notices to Book-Entry Depositary or Note 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
Note 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
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Global Trust Services
Facsimile: ▇-▇▇▇-▇▇▇-▇▇▇▇
or at any other address furnished in writing by the Book-Entry Depositary to the
Depositary, the Trustee and the Note Issuer; or
(b) the Note 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
15
in writing and personally delivered or mailed, by overnight delivery or
first-class postage prepaid, to the following address:
RSL Communications PLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇
Rosenman & Colin LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or at any other addresses furnished in writing to the Book-Entry Depositary by
the Note Issuer. Any communication sent pursuant to this Section 4.01 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 4.02 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 4.03 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 4.04 Successors and Assigns.
All covenants and agreements in this Agreement and the Notes by the Note
Issuer shall bind its successors and assigns, whether so expressed or not.
16
SECTION 4.05 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 4.06 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 4.07 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 APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 4.08 Jurisdiction.
The Note Issuer agrees that any legal suit, action or proceeding against
the Note 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 Note Issuer has appointed RSL
Communications N. America, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, 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
non-exclusive jurisdiction of any such court in respect of any such action. The
Note Issuer represents and warrants that the Authorized Agent has agreed to act
as said agent for service of process, and the Note 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 Note Issuer.
Notwithstanding the foregoing, any action based on this Agreement may be
instituted by the Book-Entry Depositary in any competent court in England.
SECTION 4.09 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.
17
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
cancelled in accordance with the provisions of Sections 2.07 and 2.12 thereof,
(ii) the Note Issuer has paid or caused to be paid all sums payable hereunder by
the Note Issuer and (iii) the Note 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 Note 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 Note 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 Note 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;
(e) to add to the covenants of Holdings or the Note Issuer or the
Book-Entry Depositary;
(f) to add a guarantor when a guarantor is made a party to the Indenture
pursuant to the Indenture; or
(g) to comply with the United States federal and English 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-
18
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
stating that:
(a) such amendment is authorized or permitted by this Agreement;
(b) the Note 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 Note Issuer, (iii) any law or regulation
applicable to the Note Issuer, (iv) any material order, writ, injunction or
decree of any court or governmental instrumentality applicable to the Note
Issuer or (v) any material agreement or instrument to which the Note Issuer is
subject; and
(d) such amendment has been duly and validly executed and delivered by the
Note Issuer, and this Agreement together with such amendment constitutes a
legal, valid and binding obligation of the Note Issuer enforceable against the
Note Issuer in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and general equitable principles.
[signature page follows]
19
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/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
THE CHASE MANHATTAN BANK
as Book-Entry Depositary
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President