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RSL COMMUNICATIONS PLC
as Issuer, with RSL Communications, Ltd. of
$200,000,000, 9 1/8% Senior Notes Due 2008
of RSL Communications PLC
and
THE CHASE MANHATTAN BANK
as Book-Entry Depositary
NOTE DEPOSIT AGREEMENT
Dated as of February 27, 1998
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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............................................5
SECTION 2.1 Deposit of the Global Notes.............................5
SECTION 2.2 Book-Entry System.......................................5
SECTION 2.3 Registration of Transfer of Depositary Interests........6
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......14
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......16
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.............19
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ARTICLE IV
MISCELLANEOUS PROVISIONS.....................................................19
SECTION 4.1 Notices to Book-Entry Depositary or Issuer.............19
SECTION 4.2 Notice to the Depositary; Waiver.......................20
SECTION 4.3 Effect of Headings and Table of Contents...............21
SECTION 4.4 Successors and Assigns.................................21
SECTION 4.5 Separability Clause....................................21
SECTION 4.6 Benefits of Agreement..................................21
SECTION 4.7 GOVERNING LAW..........................................21
SECTION 4.8 Jurisdiction...........................................21
SECTION 4.9 Counterparts...........................................22
SECTION 4.10 Inspection of Agreement...............................22
SECTION 4.11 Satisfaction and Discharge............................22
SECTION 4.12 Amendments............................................23
SECTION 4.13 Book-Entry Depositary To Sign Amendments..............23
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THIS NOTE DEPOSIT AGREEMENT is made as of this 27th day of February, 1998
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 here under,
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.
"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 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Atten tion: 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.
"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 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 February 27, 1998 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.
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"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 February 27, 1998 from the Issuer, the Trustee and the Book-Entry
Depositary.
"Notes" means the $200,000,000 aggregate principal amount of the Issuer's 9
1/8% Senior Notes due 2008 issued under the Indenture.
"Offer to Purchase" has the meaning set forth in the Indenture.
"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.
"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.
"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,
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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.
"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
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(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
Repre sentations. 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 accor dance with the Letter of
Representations.
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) Par ticipants. 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 suc cessors
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
De positary Interests shall be entitled to receive a Registered Note on account
of such
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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
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
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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 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.
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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 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 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
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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.
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 De
positary 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
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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 2.8 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 con taining (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
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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 2.9(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 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 indemnity against such risk or liability is
not reasonably assured to it.
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(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;
(d) the Book-Entry Depositary shall not be bound to make any in vestigation
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
13
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 in demnity 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 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
14
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 com
pensation 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 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 De
positary for reasonable expenses, disbursements and advances shall survive the
15
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.
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
16
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 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 appoint-
17
ment 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 accor dance 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 De
positary 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, 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
18
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 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:
19
(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
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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 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
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇
Debevoise & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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 Agree ment
provides for notice to the Depositary of any event, such notice shall be suf-
20
ficiently 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 con
struction 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.
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-
21
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 De
positary 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., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, 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 afore
said. 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 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
22
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;
(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
out standing.
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
23
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
creditors' rights generally and general equitable principles.
[signature page follows]
24
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: Trust Officer
With respect to the provisions of Section 3.6 only
RSL COMMUNICATIONS, Ltd.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name:
Title:
25