VIATEL, INC.
$63,666,000 OF 11.50% SENIOR DOLLAR NOTES DUE 2009
PURCHASE AGREEMENT
DECEMBER 8, 1999
PURCHASE AGREEMENT
December 8, 1999
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs and Mesdames:
Viatel, Inc., a Delaware corporation (the "COMPANY"), proposes
to issue and sell to Xxxxxx Xxxxxxx & Co. Incorporated (the "PURCHASER") an
aggregate of $63,666,000 principal amount of 11.50% Senior Dollar Notes Due 2009
of the Company (the "NEW NOTES") to be issued pursuant to the provisions of an
indenture, to be dated December 8, 1999 (the "INDENTURE"), between the Company
and The Bank of New York, as trustee (in such capacity, the "TRUSTEE").
Simultaneous with the sale of the New Notes, the Company is
completing its (i) offer to exchange (hereinafter, the "EXCHANGE OFFER") $686.03
principal amount of 11.50% Senior Dollar Notes due 2009 of the Company (the
"ADDITIONAL NOTES") and a total cash consideration of $71.24 (including a
consent fee of $20.00) (collectively, the "TOTAL CONSIDERATION") payable by the
Company for each $1,000 principal amount at maturity of outstanding 11% Senior
Discount Notes Due 2008 (the "DESTIA NOTES") of Destia Communications, Inc.
(formerly known as Econophone, Inc.), a Delaware corporation ("DESTIA"), and
(ii) consent solicitation of the holders of the Destia Notes (hereinafter, the
"CONSENT SOLICITATION") to certain proposed amendments to the indenture pursuant
to which the Destia Notes were issued and waivers from such holders of the
Destia Notes of their right to participate in any repurchase offer for the
Destia Notes, on the terms and subject to the conditions set forth in the
Offering Memorandum and Consent Solicitation, dated November 4, 1999. The New
Notes and the Additional Notes shall hereinafter collectively be referred to as
the "NOTES" and this agreement between the Company and you as set forth herein
shall hereinafter be referred to as the "AGREEMENT."
Pursuant to the terms of the Indenture, on the Closing Date
(hereinafter defined for the purposes of this Agreement), the Company will
purchase and pledge to the Trustee for the benefit of the registered holders of
the Notes, pursuant to the terms of the Collateral Pledge and Security
Agreement, dated December 8, 1999 (the "PLEDGE AGREEMENT"), Pledged Security
Entitlements (as defined in the Pledge Agreement) in an amount sufficient, upon
receipt of scheduled interest and principal payments on such securities, to
provide for the payment in full of the first three scheduled interest payments
on the Notes.
Capitalized terms used herein without definition have the
respective meanings specified in the Offering Memorandum (as defined below).
The New Notes will be offered without being registered under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), to "qualified
institutional buyers" (as defined in Rule 144A under the Securities Act) in
compliance with the exemption from registration provided by Rule 144A under the
Securities Act.
The holders of the Notes, and their direct and indirect
transferees will be entitled to the benefits of a Registration Rights Agreement
relating to the Notes, to be dated the date hereof, and to be substantially in
the form attached hereto as EXHIBIT A (the "REGISTRATION RIGHTS AGREEMENT").
In connection with the sale of the New Notes to the Purchaser,
the Company has prepared an offering memorandum, dated December 8, 1999 (the
"OFFERING MEMORANDUM"), setting forth or including a description of the terms of
the New Notes, the terms of the offering and a description of the Company and
its business.
1. REPRESENTATIONS AND WARRANTIES.
THE COMPANY REPRESENTS AND WARRANTS TO, AND AGREES WITH, YOU
THAT AS OF THE DATE HEREOF:
(a) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with full corporate power and corporate authority to own
its properties and to conduct its business as described in the Offering
Memorandum and is duly qualified to transact business as a foreign
corporation and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a Material
Adverse Effect (as defined below) on the Company and its Subsidiaries
(as defined below), taken as a whole.
(b) Each subsidiary of the Company is listed on EXHIBIT B
hereto (each a "SUBSIDIARY" and, collectively, the "SUBSIDIARIES") and,
if applicable to such country, each of the Subsidiaries operating in
such country has been duly incorporated or otherwise organized, is
validly existing in good standing under the laws of the jurisdiction of
its incorporation or organization, with full corporate power and
corporate authority to own its properties and to conduct its business
as described in the Offering Memorandum and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in
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good standing would not have a Material Adverse Effect (defined below)
on the Company and the Subsidiaries, taken as a whole. For the purposes
of Section 1 of this Agreement, Destia and the subsidiaries of Destia
are not deemed subsidiaries of the Company.
(c) All of the issued shares of capital stock or other equity
interests, as the case may be, of each Subsidiary of the Company have
been duly authorized and are validly issued, fully paid and
non-assessable and are owned, either directly or indirectly, by the
Company, free and clear of all liens, encumbrances, equities or claims,
other than those indicated in the Offering Memorandum.
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
(e) The New Notes have been duly authorized by the Company
and, when issued and authenticated in accordance with the Indenture and
delivered to and paid for by the Purchaser in accordance with the terms
of this Agreement and the Indenture, will (x) be valid and binding
obligations of the Company enforceable against the Company in
accordance with their terms, except as the enforceability thereof may
be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and subject to general equitable principles (whether
considered in a proceeding in equity or at law) (the "ENFORCEABILITY
EXCEPTIONS"), and (y) be entitled to the benefits of the Indenture
pursuant to which such New Notes are to be issued, the Registration
Rights Agreement, the Pledge Agreement and the Notification and Control
Agreement, dated as of December 8, 1999 (the "CONTROL AGREEMENT").
(f) The Offering Memorandum does not, and on the Closing Date
will not, contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this
paragraph do not apply to statements in or omissions from the Offering
Memorandum (or any supplement or amendment thereto) based upon
information relating to the Purchaser furnished to the Company in
writing by the Purchaser expressly for use therein.
(g) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture, the Registration Rights Agreement, the Pledge Agreement,
the Control Agreement and the Notes (collectively, the "TRANSACTION
DOCUMENTS") and the issuance, sale and delivery of the New Notes in
accordance with their terms will not contravene (i) any provision of
applicable law, (ii) the certificate of incorporation or by-laws of the
Company, (iii) any material agreement or other instrument binding upon
the Company or any of its
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Subsidiaries, or (iv) any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any
Subsidiary, except with respect to clauses (i) and (iii) to the extent
that any contravention would not have a Material Adverse Effect on the
Company and its Subsidiaries, taken as a whole, and, no consent,
approval, authorization, exemption or order of, or qualification or
filing with, any governmental body or agency is required for the
performance by the Company of its obligations under the Transaction
Documents (other than such consent, approval, authorization, exemption,
order or other action which has been obtained), except (x) such as may
be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Notes, or the issuance and
exchange pursuant to the Exchange Offer, of the Additional Notes issued
in exchange for the Destia Notes, (y) such as may be required by
federal and state securities laws with respect to the Company's
obligations under the Registration Rights Agreement and (z) for any
consents, approvals, authorizations, orders or qualifications, the
failure to obtain which would not have a Material Adverse Effect on the
ability of the Company to perform its obligations under the Transaction
Documents.
(h) any Company document incorporated by reference in the
Offering Memorandum, or filed with the Securities and Exchange
Commission after the date hereof, or from which information is so
incorporated by reference when filed or becoming effective, as the case
may be, shall comply in all material respects with the requirements of
the Securities Act and the Securities Exchange Act of 1934 (the
"EXCHANGE ACT"), as applicable, and the rules and regulations
promulgated thereunder.
(i) The Indenture and the Registration Rights Agreement have
been duly authorized by the Company and, when duly executed and
delivered by the Company, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their terms, subject to the Enforceability Exceptions
and except that (x) rights to indemnification and contribution may be
limited by public policy and (y) provisions of the Indenture, if any,
requiring any waiver of stay or extension laws, diligent performance or
other acts on the part of the Trustee may be unenforceable under
principles of public policy.
(j) Each of the Pledge Agreement and the Control Agreement has
been duly authorized by the Company and, when executed and delivered by
the Company, will constitute a valid and legally binding obligation of
the Company, enforceable against the Company in accordance with its
terms, subject to the Enforceability Exceptions.
(k) Upon the delivery to the Trustee of the certificates or
instruments, if any, representing the Pledged Security Entitlements,
the pledge of and grant of a security interest in the Pledged Security
Entitlements for the benefit of the Trustee and the Holders, as the
case may be, will constitute a first priority security interest in the
Pledged
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Security Entitlements, enforceable against all creditors of the Company
(and any persons purporting to purchase any of the Pledged Security
Entitlements from the Company).
(l) The New Notes and the Indenture conform in all material
respects to the descriptions thereof contained in the Offering
Memorandum under the heading "Description of the Notes."
(m) Assuming the accuracy of the Purchaser's representations
contained herein and the Purchaser's compliance with its agreements
hereunder, it is not necessary to register the New Notes under the
Securities Act or to qualify the Indenture under the Trust Indenture
Act of 1939, as amended.
(n) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations (a "MATERIAL ADVERSE EFFECT") of the Company and its
Subsidiaries, taken as a whole, from that set forth in the Offering
Memorandum, dated December 8, 1999, attached as EXHIBIT C; furthermore,
(i) other than the transactions contemplated hereby (including, without
limitation, any related borrowings by the Company or any of its
Subsidiaries or affiliates and by the Joint Proxy Statement/Prospectus,
dated October 15, 1999, and the Exchange Offer), the Company and its
Subsidiaries have not incurred any material liability or obligation,
direct or contingent, nor entered into any material transaction not in
the ordinary course of business; (ii) the Company has not purchased any
of its outstanding capital stock, nor declared, paid or otherwise made
any dividend or distribution of any kind on its capital stock other
than ordinary and customary dividends; and (iii) other than the
increase in the Company's authorized common stock adopted at its 1999
annual meeting of stockholders, there has not been any material change
in the capital stock, short-term debt or long-term debt of the Company
and its consolidated Subsidiaries, taken as a whole, except in each
case as described in the Offering Memorandum.
(o) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened to which the Company or any
of its Subsidiaries is or may be a party, or to which any of the
properties of the Company or any of its Subsidiaries is or may be
subject other than proceedings accurately described in all material
respects in the Offering Memorandum and proceedings that are not
reasonably likely to have a Material Adverse Effect on the Company and
its Subsidiaries, taken as a whole, or on the power or ability of the
Company to perform its obligations under any of the Transaction
Documents or to consummate the transactions contemplated by the
Offering Memorandum.
(p) The Company is not, and after giving effect to the
offering and sale of the New Notes, and the application of the proceeds
thereof as described in the Offering
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Memorandum under the caption "Use of Proceeds," will not be an
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended.
(q) Neither the Company nor any affiliate of the Company (as
defined in Rule 501(b) of Regulation D under the Securities Act, an
"AFFILIATE") has directly, or through any agent, (i) sold, offered for
sale, solicited offers to buy or otherwise negotiated in respect of,
any security (as defined in the Securities Act) which is or will be
integrated with the sale of the New Notes in a manner that would
require the registration under the Securities Act of the New Notes or
(ii) engaged in any form of general solicitation or general advertising
(as those terms are used in Regulation D under the Securities Act) in
connection with the offering of the New Notes in any manner involving a
public offering within the meaning of Section 4(2) of the Securities
Act.
(r) The Company and its Subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
Material Adverse Effect on the Company and its Subsidiaries, taken as a
whole.
(s) There are no costs and liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate,
have a Material Adverse Effect on the Company and its Subsidiaries,
taken as a whole.
(t) The New Notes satisfy the requirements set forth in Rule
144A(d)(3) under the Securities Act.
(u) Except as described in the Offering Memorandum, the
Company and its Subsidiaries (i) have all necessary consents,
authorizations, approvals, orders, certificates and permits of and
from, and have made all declarations and filings with, all federal,
state, local and other governmental, administrative or regulatory
authorities, all self-regulatory organizations and all courts and other
tribunals, to own, lease, license and use
their properties and assets and to conduct their business in the manner
described in the Offering Memorandum, except to the extent that the
failure to obtain such consents,
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authorizations, approvals, orders, certificates or permits or make such
declarations or filings would not have a Material Adverse Effect on the
Company and its Subsidiaries, taken as a whole; and (ii) have not
received any notice of proceedings relating to the violation,
revocation or modification of any such license, consent, authorization,
approval, order, certificate or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would reasonably be expected to have a Material Adverse Effect
on the Company and its Subsidiaries, taken as a whole.
(v) The Company and its Subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title
to all personal property owned by them which is material to the
business of the Company and its Subsidiaries, taken as a whole, in each
case free and clear of all liens, encumbrances and defects except (i)
such as are reflected in the Company's financial statements or are
described in the Offering Memorandum; (ii) such as do not materially
affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company and its
Subsidiaries; or (iii) such as do not have a Material Adverse Effect on
the Company and its Subsidiaries, taken as a whole; and any real
property and buildings held under lease by the Company and its
Subsidiaries are held by them under valid, binding and enforceable
leases with such exceptions as are not material and do not materially
interfere with the use made and proposed to be made of such property
and buildings by the Company and its Subsidiaries, in each case except
as described in or contemplated by the Offering Memorandum and subject
to the Enforceability Exceptions.
(w) The Company and its Subsidiaries own or possess, or can
acquire on reasonable terms, all material patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and
trade names currently employed by them in connection with the business
now operated by them, and, except as set forth in the Offering
Memorandum, neither the Company nor any of its Subsidiaries has
received any notice of infringement of or conflict with asserted rights
of others with respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would be reasonably likely to have a Material Adverse Effect
on the Company and its Subsidiaries, taken as a whole.
(x) No material labor dispute with the employees of the
Company or any of its Subsidiaries exists, except as described in or
contemplated by the Offering Memorandum, or, to the knowledge of the
Company, is imminent; and the Company is not aware of any existing,
threatened or imminent labor disturbance by the employees of any of its
principal suppliers, manufacturers or contractors that might reasonably
be expected to have a Material Adverse Effect on the Company and its
Subsidiaries, taken as a whole.
(y) (i) The Company and its Subsidiaries are insured against
such losses and risks and in such amounts as the Company reasonably
believes are prudent and customary
7
in the businesses in which they are engaged; (ii) neither the Company
nor any such Subsidiary has been refused any insurance coverage sought
or applied for; and (iii) neither the Company nor any such Subsidiary
has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse
Effect on the Company and its Subsidiaries, taken as a whole, except as
described in or contemplated by the Offering Memorandum.
(z) The Company and its Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance
with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to
any differences.
(aa) The Company has reviewed its operations and that of its
Subsidiaries to evaluate the extent to which the business or operations
of the Company or any of its Subsidiaries will be affected by the Year
2000 Problem (that is, any significant risk that computer hardware or
software applications used by the Company and its subsidiaries will
not, in the case of dates or time periods occurring after December 31,
1999, function at least as effectively as in the case of dates or time
periods occurring prior to January 1, 2000); as a result of such
review, (i) the Company has no reason to believe, and does not believe,
that (A) there are any issues related to the Company's preparedness to
address the Year 2000 Problem that are of a character required to be
described or referred to in the Offering Memorandum which have not been
accurately described in the Offering Memorandum and (B) with respect to
the systems of the Company and its Subsidiaries, the Year 2000 Problem
will have a Material Adverse Effect on the Company and its
Subsidiaries, taken as a whole, or result in any material loss or
interference with the business or operations of the Company and its
Subsidiaries, taken as a whole; and (ii) the Company reasonably
believes, after due inquiry, that the suppliers, vendors, customers or
other material third parties used or served by the Company and such
Subsidiaries are addressing or will address the Year 2000 Problem in a
timely manner, except to the extent that a failure to address the Year
2000 Problem by any supplier, vendor, customer or material third party
would not have a Material Adverse Effect on the Company and its
Subsidiaries, taken as a whole.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees
to sell to the Purchaser, and the Purchaser upon the basis of the
representations and warranties herein
8
contained, but subject to the conditions hereinafter stated, agrees to purchase
from the Company New Notes in the aggregate principal amount of $63,666,000
million at a purchase price equal to 91.50% of the principal amount of the New
Notes (LESS $595,248.77) (the "PURCHASE PRICE"), plus accrued interest, if any,
on the New Notes from the date of issuance of the New Notes to the Closing Date.
The Company hereby agrees that, without the prior
written consent of the Purchaser, it will not, during the period beginning on
the date hereof, and continuing to and including the Closing Date, offer, sell,
contract to sell or otherwise dispose of any debt of the Company or warrants to
purchase debt of the Company substantially similar to the New Notes (other than
the sale of the Notes under this Agreement, and except as contemplated by the
Exchange Offer).
3. TERMS OF OFFERING. You have advised the Company that you
will make an offering of the Notes purchased by you hereunder on the terms set
forth in the Offering Memorandum, as soon as practicable after this Agreement is
entered into as in your judgment is advisable.
4. PAYMENT AND DELIVERY. Payment for the New Notes shall be
made to the Company in federal or other funds immediately available in New York
City against delivery of such New Notes at the closing to be held at the office
of Xxxxxx Xxxx & Xxxxxx, LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, at 9:00 A.M.,
local time, on December 8, 1999, or at such other time on the same or such other
date, not later than December 22, 1999, as shall be agreed to by the Company and
Xxxxxx Xxxxxxx & Co. Incorporated. The time and date of such payment are herein
referred to as the "CLOSING DATE."
Certificates for the Notes shall be in definitive form or
global form, as specified by you, and registered in such names and in such
denominations as you shall request in writing not later than two full business
days prior to the Closing Date. The certificates evidencing the Notes shall be
delivered to you on the Closing Date, with any transfer taxes payable in
connection with the transfer of the Notes to the Purchaser duly paid, against
payment of the Purchase Price therefor.
5. CONDITIONS TO THE PURCHASER'S OBLIGATION. The obligations
of the Purchaser to purchase and pay for the Notes on the Closing Date is
subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date,
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review
9
for a possible change that does not indicate the direction of
the possible change, other than any notice which shall already
have been given as of the date hereof, in the rating accorded
to the Company or any of the Company's securities or in the
rating outlook for the Company by any "nationally recognized
statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations, of the Company, its Subsidiaries and Destia, taken
as a whole, from that set forth in the Offering Memorandum
(exclusive of any amendments or supplements thereto subsequent
to the date of this Agreement) that, in your judgment, is
material and adverse and that makes it, in your judgment,
impracticable to market the Notes on the terms and in the
manner contemplated in the Offering Memorandum.
(b) The Purchaser shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in Section 5(a)(i) of this
Agreement and to the effect that the representations and warranties of
the Company contained in this Agreement are true and correct as of the
Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions contained herein on its
part to be performed or satisfied hereunder on or before the Closing
Date. The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to any proceedings threatened.
(c) The Purchaser shall have received, (A) on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Purchaser, from KPMG LLP, independent public accountants,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Offering Memorandum and (B) on the date hereof, letters dated the date
hereof, in form and substance satisfactory to the Purchaser, from KPMG
LLP, independent public accountants, with respect to agreed-upon
procedures to be applied to information contained in the Offering
Memorandum with respect to billable minutes, revenue per billable
minute and number of customers, and with respect to the Pledged
Security Entitlements; PROVIDED THAT the letters delivered pursuant to
Section 5(c)(A) and Section 5(c)(B) shall use a "cut-off date" not
earlier than 2 business days prior to the date hereof.
(d) The Purchaser shall have received on the Closing Date an
opinion of Xxxxxx Xxxx & Xxxxxx LLP, outside counsel to the Company,
dated the Closing Date, to
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the effect set forth in EXHIBIT D. Such opinion shall be rendered to
the Purchaser at the request of the Company and shall so state therein.
(e) The Purchaser shall have received on the Closing Date
opinions of foreign local counsel in Germany, Switzerland, Italy,
France, Belgium, Spain, The Netherlands and the United Kingdom, dated
the Closing Date, each to the effect set forth in EXHIBIT E or as to
such other form as agreed to by the Purchaser. Such opinions shall be
rendered to the Purchaser at the request of the Company and shall so
state therein.
(f) The Purchaser shall have received on the Closing Date an
opinion of Xxxxxxxx & Forester, LLP, special U.S. communications
counsel to the Company, together with an opinion of Nebraska counsel,
each dated the Closing Date, substantially to the effect set forth in
EXHIBIT F. Such opinions shall be rendered to the Purchaser at the
request of the Company and shall so state therein.
(g) The Purchaser shall have received on the Closing Date an
opinion of Shearman & Sterling, counsel to the Purchaser, dated the
Closing Date, in form and substance satisfactory to you.
(h) The Registration Rights Agreement and the Pledge Agreement
shall be executed and in full force and effect, and the Company shall
have granted the security interest and made the pledge contemplated by
the Pledge Agreement.
(i) The Exchange Offer and Consent Solicitation shall have
been consummated on or prior to the Closing Date.
(j) The Purchaser shall have received from Destia all
documents to be delivered by Destia, its counsel or its accountants
pursuant to the terms of the Dealer Manager Agreement, dated November
4, 1999 (the "DEALER MANAGER AGREEMENT"), among the Company, Destia and
the Purchaser, including opinions of counsels to Destia, "comfort
letters" from the independent public accountants of Destia and
certificates of officers of Destia.
(k) The Purchaser shall have received on the Closing Date an
opinion of outside counsel to Destia, dated the Closing Date, to the
effect set forth in Exhibit D of the Dealer Manager Agreement. Such
opinion shall be rendered to you at the request of Destia and shall so
state therein.
(l) The Purchaser shall have received on the Closing Date an
opinion of Xxxxxxx Xxxx & Xxxxx LLP, outside counsel to Destia, dated
the Closing Date, to the effect set forth in Exhibit E of the Dealer
Manager Agreement. Such opinion shall be rendered to you at the request
of Destia and shall so state therein.
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(m) The Purchaser shall have received on the Closing Date
opinions of foreign local counsel of Destia in Switzerland (to the
effect set forth in Exhibit K of the Dealer Manager Agreement), United
Kingdom (to the effect set forth in Exhibit J of the Dealer Manager
Agreement), Germany (to the effect set forth in Exhibit L of the Dealer
Manager Agreement) and France (to the effect set forth in Exhibit M of
the Dealer Manager Agreement), dated the Closing Date, each opinion to
the effect set forth in their respective Exhibits or as to such other
form as agreed to by you. Each such opinion shall be rendered to you at
the request of Destia and shall so state therein.
(n) The Purchaser shall have received on the Closing Date an
opinion of Swidler, Berlin, Shereff Xxxxxxxx, special U.S.
communications counsel to Destia, dated the Closing Date, to the effect
set forth in Exhibit I of the Dealer Manager Agreement. Such opinion
shall be rendered to you at the request of Destia and shall so state
therein.
(o) The Purchaser shall have received on the Closing Date an
opinion of counsel to Destia with respect to the disclosure of facts in
the Offering Memorandum in form and substance reasonably acceptable to
you. Such opinion shall be rendered to you at the request of Destia and
shall so state therein.
(p) The Purchaser shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in EXHIBIT H. The officer
signing and delivering such certificate may rely upon the best of his
or her knowledge as to any proceedings threatened.
(q) The Purchaser shall have received such other documents and
certificates as are reasonably requested by you or your counsel.
6. COVENANTS OF THE COMPANY. In further consideration of the
agreements of the Purchaser contained in this Agreement, the Company covenants
with the Purchaser as follows:
(a) To use its best efforts to furnish to you in New York
City, without charge, prior to 9:00 a.m. New York City time on December
8, 1999 and during the period mentioned in Section 6(c), as many copies
of the Offering Memorandum, any supplements and amendments thereto and
any documents incorporated by reference therein as you may reasonably
request.
(b) Before amending or supplementing the Offering Memorandum,
to furnish to you a copy of each such proposed amendment or supplement
and not to use any such proposed amendment or supplement without the
consent of Xxxxxx Xxxxxxx & Co. Incorporated, which consent shall not
be unreasonably withheld or delayed.
12
(c) If, during such period after the date hereof and prior to
the date on which all of the New Notes shall have been sold by the
Purchaser, any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Offering Memorandum in
order to make the statements therein, in the light of the circumstances
when the Offering Memorandum is delivered to a purchaser, not
misleading, or if, in the opinion of counsel to the Purchaser it is
necessary to amend or supplement the Offering Memorandum to comply with
applicable law, forthwith to prepare and furnish, at its own expense,
to the Purchaser, either amendments or supplements to the Offering
Memorandum so that the statements in the Offering Memorandum as so
amended or supplemented will not, in the light of the circumstances
when the Offering Memorandum is delivered to a purchaser, be misleading
or so that the Offering Memorandum, as so amended or supplemented, will
comply with applicable law.
(d) To endeavor to qualify the New Notes for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request; PROVIDED THAT in no event shall the Company
be obligated to qualify to do business in any jurisdiction in which it
is not now so qualified or to take any action which would subject it to
taxation in any jurisdiction in which it is not now so subject or to
service or process in suits, other than those arising out of the
offering or sale of the Notes in any jurisdiction in which it is not
now so subject.
(e) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the preparation of the
Offering Memorandum and all amendments and supplements thereto; (ii)
the preparation, issuance and delivery of the New Notes, (iii) the fees
and disbursements of the Company's counsel and accountants and the
Trustee and its counsel, (iv) the qualification of such New Notes under
securities or Blue Sky laws in accordance with the provisions of
Section 6(d), including filing fees and the fees and disbursements of
counsel for the Purchaser in connection therewith and in connection
with the preparation of any Blue Sky or legal investment memoranda, (v)
the printing and delivery to the Purchaser in quantities as hereinabove
stated of copies of the Offering Memorandum and any amendments or
supplements thereto, (vi) any fees charged by rating agencies, (vii)
all document production charges and expenses of counsel to the
Purchaser (but not including their fees for professional services) in
connection with the preparation of this Agreement, (viii) the fees and
expenses, if any, incurred in connection with the admission of such New
Notes for trading in the Private Offerings, Resales and Trading through
Automatic Linkages ("PORTAL") Market or any other appropriate market
system, (ix) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the
marketing of the offering, whether by traditional or electronic means,
including, without limitation,
13
expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in connection
with the road show presentations with the prior approval of the
Company, travel and lodging expenses of the representatives and
officers of the Company and any such consultants, and the cost of any
aircraft chartered in connection with the road show with the prior
approval of the Company, and (x) all other costs and expenses incident
to the performance of the obligations of the Company hereunder for
which provision is not otherwise made in this Section. It is
understood, however, that except as provided in this Section, Section 8
and Section 11, the Purchaser will pay all of its costs and expenses,
including fees and disbursements of its counsel, transfer taxes payable
on resale of any of the Notes by them and any advertising expenses
connected with any offers they may make.
(f) Neither the Company nor any Affiliate will sell, offer for
sale or solicit offers to buy or otherwise negotiate in respect of any
security (as defined in the Securities Act) which would be integrated
with the sale of the New Notes in a manner which would require the
registration under the Securities Act of such New Notes.
(g) Neither the Company nor any Subsidiary will solicit any
offer to buy or offer or sell the New Notes by means of any form of
general solicitation or general advertising (within the meaning of Rule
502(c) under the Securities Act) or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act,
except as may be contemplated by the Registration Rights Agreement.
(h) While any of the New Notes remain "restricted securities"
within the meaning of Rule 144 under the Securities Act, to make
available, upon request, to any seller of such New Notes the
information specified in Rule 144A(d)(4) under the Securities Act,
unless the Company is then subject to and in compliance with Section 13
or 15(d) of the Exchange Act.
(i) To use its reasonable best efforts to permit the New Notes
to be designated PORTAL securities in accordance with the rules and
regulations adopted by the National Association of Securities Dealers,
Inc. relating to trading in the PORTAL Market.
(j) The Company shall not, and shall use its best efforts to
cause its Affiliates not to, purchase and then resell or otherwise
transfer any New Notes.
7. OFFERING OF NEW NOTES; RESTRICTIONS ON TRANSFER. (a) The
Purchaser represents and warrants that the Purchaser is a qualified
institutional buyer as defined in Rule 144A under the Securities Act (a "QIB").
The Purchaser agrees with the Company that (i) it will not solicit offers for,
or offer or sell, New Notes by any form of general solicitation or general
advertising (as those terms are used in Rule 502(c) under the Securities Act) or
in any manner involving a public offering within the meaning of Section 4(2) of
the Securities Act and (ii) it
14
will solicit offers for New Notes only from, and will offer such New Notes only
to, persons that it reasonably believes to be other QIBs who, in purchasing such
Notes are deemed to have represented and agreed as provided in the Offering
Memorandum under the caption "Transfer Restrictions."
(b) The Purchaser represents, warrants, and agrees with
respect to offers and sales outside the United States that:
(i) it understands that no action has been or will be taken in
any jurisdiction by the Company that would permit a public offering of
the Notes, or possession or distribution of the Offering Memorandum or
any other offering or publicity material relating to the Notes, in any
country or jurisdiction where action for that purpose is required;
(ii) the Purchaser will comply with all applicable laws and
regulations in each jurisdiction in which it acquires, offers, sells or
delivers Notes or has in its possession or distributes the Offering
Memorandum or any such other material, in all cases at its own expense;
(iii) the Purchaser has (A) not offered or sold and, prior to
the date six months after the Closing Date, will not offer or sell any
Notes to persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and
will not result in an offer to the public in the United Kingdom within
the meaning of the Public Offers of Securities Regulations 1995; (B)
complied and will comply with all applicable provisions of the
Financial Services Xxx 0000 with respect to anything done by it in
relation to the Notes in, from or otherwise involving the United
Kingdom; and (C) only issued or passed on and will only issue or pass
on in the United Kingdom any document received by it in connection with
the issue of the Notes to a person who is of a kind described in
Article 11(3) of the Financial Services Xxx 0000 (Investment
Advertisements) (Exemptions) Order 1996, or is a person to whom such
document may otherwise lawfully be issued or passed on; and
(iv) the Purchaser understands that the Notes have not been
and will not be registered under the Securities and Exchange Law of
Japan, and represents that it has not offered or sold, and agrees that
it will not offer or sell, any Notes directly or indirectly in Japan or
for the account of any resident thereof except pursuant to any
exemption from the registration requirements of the Securities and
Exchange Law of Japan and otherwise in compliance with applicable
provisions of Japanese law.
15
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless the
Purchaser, and each person, if any, who controls the Purchaser within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Offering Memorandum (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; PROVIDED, HOWEVER, that the Company wi9ill not be liable
in any such case to the extent, but only to the extent, that any such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to the Purchaser furnished to the Company in writing by the Purchaser expressly
for use therein.
(b) The Purchaser agrees to indemnify and hold harmless the
Company, its directors, its officers and each person, if any, who controls the
Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from the
Company to the Purchaser, but only with reference to information relating to the
Purchaser furnished to the Company in writing by the Purchaser expressly for use
in the Offering Memorandum or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to any provision of Section 8(a) or Section
8(b), such person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
(but the failure to so notify an indemnifying party shall not relieve it from
any liability which it may have under this Section 8, except to the extent that
it has been prejudiced in any material respect by such failure, or from any
liability it may otherwise have) and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any
16
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any
local counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by Xxxxxx Xxxxxxx & Co. Incorporated in the case of parties
indemnified pursuant to Section 8(a) and by the Company in the case of parties
indemnified pursuant to Section 8(b). The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 60 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, which consent may not be
unreasonably withheld, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder (whether or not any
indemnified party is an actual or potential party to such proceeding) by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) To the extent the indemnification provided for in any
provision of Section 8(a) or Section 8(b) is unavailable to an indemnified party
or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such section, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, on the one hand, and the Purchaser,
on the other hand, from the offering of such Notes, or (ii) if the allocation
provided by clause 8(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause 8(d)(i) above but also the relative fault of the Company and the
Purchaser in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand,
and the Purchaser, on the other hand, in connection with the offering of the New
Notes shall be deemed to be in the same respective proportions as the net
proceeds from the offering of the New Notes (net of discounts and commissions
but before deducting expenses) received by the Company and the total discounts
and commissions received by the Purchaser in respect thereof bear to the
aggregate offering price of the New Notes. The relative fault of the Company, on
the one hand, and the Purchaser, on the other hand, shall be determined by
reference to,
17
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Purchaser and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) The Company and the Purchaser agree that it would not be
just or equitable if contribution pursuant to this Section 8 were determined by
PRO RATA allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 8(d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in Section 8(d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 8, the Purchaser shall not be required to contribute any amount in
excess of the amount by which the total price at which the New Notes resold by
it in the initial placement of such New Notes were offered to investors exceeds
the amount of any damages that the Purchaser has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 8 are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any indemnified party at law or
in equity.
(f) The indemnity and contribution provisions contained in
this Section 8 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of the Purchaser or any person controlling
the Purchaser or by or on behalf of the Company, or any of its officers or
directors or any person controlling the Company, and (iii) acceptance of and
payment for any of the New Notes.
9. EFFECTIVENESS. This Agreement shall become effective upon
the execution and delivery hereof by the parties hereto.
10. MISCELLANEOUS. If this Agreement shall be terminated by
the Purchaser because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement (other than by reason of a breach of this Agreement by the
Purchaser), the Company will reimburse the Purchaser for all out-of-pocket
expenses (including the fees and disbursements of its counsel) reasonably
incurred by the Purchaser in connection with this Agreement or the offering
contemplated hereunder.
18
11. NOTICES. All notices and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given if delivered personally to the parties hereto as
follows:
(a) If to the Purchaser:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
(b) If to the Company:
Viatel, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Vice President and General Counsel
with a copy to:
Xxxxxx Xxxx & Xxxxxx LLP
Two Stamford Plaza
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxx X. Xxxxxxxxxx
12. COUNTERPARTS. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
13. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
14. HEADINGS. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
Please confirm your agreement to the foregoing by signing in
the space provided below for that purpose and returning to us a copy hereof,
whereupon this Agreement shall constitute a binding agreement between Viatel,
Inc. and the Purchaser.
Very truly yours,
VIATEL, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief Executive
Officer
Agreed, December 8, 1999
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxx X. Xxxxx
-------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
EXHIBIT A
FORM OF REGISTRATION RIGHTS AGREEMENT
EXHIBIT B
SUBSIDIARIES OF VIATEL, INC.
NAME OF SUBSIDIARY JURISDICTION OF INCORPORATION OR ORGANIZATION
------------------ ---------------------------------------------
Viatel U.K. Limited England and Wales
Viatel Belgium Limited England and Wales
Viatel Circe Assets Limited England and Wales
Viatel Spain Limited England and Wales
Viatel (I) Limited England and Wales
Viatel UK Holdings Ltd.
(formerly, Viatel Staines Limited and Viatel England and Wales
Circe Assets Ltd.)
Viatel Austria Limited England and Wales
Network Managed Services England and Wales
Viatel Global Communications S.p.A.
(formerly Viaphone S.R.L.) Italy
Viatel S.R.L. Italy
Viatel Operations, S.A. France
Viatel S.A. France
VPN S.A.R.L. France
Viafon Dat Iberica, S.A. Spain
Viatel Global Communications Espana S.A. Spain
Viatel Belgium NV/SA Belgium
Viaphone NV/SA Belgium
Viatel GmbH Germany
Viatel Communications GmbH Germany
(formerly Viaphone GmbH)
Vicame Infrastructure Development GmbH Germany
Viatel German Asset GmbH Germany
Viatel AG Switzerland
Viaphone AG Switzerland
Viatel Global Communications B.V. Netherlands
Viafoperations Communications B.V. Netherlands
Strijk B.V. Netherlands
Viacol Ltda. Colombia
Viatel Colombia Management, Inc. Delaware
Viatel Colombia Holdings, Inc. Delaware
Viatel Sales U.S.A., Inc. Delaware
YYC Communications, Inc. Delaware
Viatel Nebraska, Inc. Delaware
Viatel Sweden, Inc. Delaware
Viatel Finland, Inc. Delaware
Viatel Argentina Holdings, Inc. Delaware
Viatel Argentina Management, Inc. Delaware
Viatel Brazil Management, Inc. Delaware
Viatel Brazil Holdings, Inc. Delaware
Viatel Development Company Delaware
Viatel Circe Cable System, Limited Delaware
Viatel Finance Company L.L.C. Delaware
Viatel Global Communications, Ltd. Delaware
Viatel New Jersey, Inc. Delaware
Viatel, Inc. Delaware
Viatel Virginia, Inc. Virginia
********
EXHIBIT C
OFFERING MEMORANDUM,
DATED DECEMBER 8, 1999
EXHIBIT D
FORM OF OPINION OF
XXXXXX XXXX & XXXXXX LLP
Pursuant to Section 5(d) of the Purchase Agreement, Xxxxxx
Xxxx & Xxxxxx LLP shall deliver an opinion to the effect that:
(A) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with full corporate power and corporate authority to own
its properties and to conduct its business as described in the Offering
Memorandum (references herein to the Offering Memorandum being taken to
mean the same, as amended or supplemented), and is duly qualified to
transact business as a foreign corporation and is in good standing in
each jurisdiction in which the conduct of its business or its ownership
or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would
not have a Material Adverse Effect on the Company and its Subsidiaries,
taken as a whole;
(B) the Company has all necessary corporate power and
authority, and has taken all necessary corporate action, to duly and
validly authorize the issuance and sale of the Notes, the execution,
delivery and performance of, and the consummation of the transactions
contemplated in, this Agreement, the Indenture, the Registration Rights
Agreement, the Collateral Pledge and Security Agreement, the
Notification and Control Agreement and the Dealer Manager Agreement
(such documents shall, hereinafter, be referred to collectively as, the
"Transaction Documents" and such transactions shall, hereinafter, be
referred to collectively as, the "Contemplated Transactions"), and no
other corporate proceedings by the Company are necessary to authorize
the execution and delivery by the Company of the Transaction Documents
or the performance by the Company of the Contemplated Transactions;
(C) the Purchase Agreement has been duly authorized, executed
and delivered by the Company;
(D) the Pledge Agreement and the Control Agreement have been
duly authorized, executed and delivered by the Company, and assuming
due authorization, execution and delivery by the Trustee, the Pledge
Agreement and Control Agreement will constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with its terms, except as the enforceability thereof may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and equitable principles (whether considered in a
proceeding in equity or at law);
D-2
(E) upon the delivery to the Trustee of the certificates or
instruments, if any, representing the Pledged Security Entitlements,
the pledge of and grant of a security interest in the Pledged Security
Entitlements for the benefit of the Trustee and the Holders will
constitute a first priority security interest in the Pledged Security
Entitlements, enforceable as against all creditors of the Company (and
any person purporting to purchase any of the Pledged Security
Entitlements from the Company);
(F) the Notes have been duly authorized, executed, and issued
by the Company and, assuming due authentication thereof by the Trustee
in accordance with the terms of the Indenture and upon payment and
delivery in accordance with the terms of the Purchase Agreement, will
(x) constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms, except
as the enforceability thereof may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally and equitable
principles (whether considered in a proceeding in equity or at law) and
(y) be entitled to the benefits of the Indenture, the Registration
Rights Agreement, the Pledge Agreement and the Control Agreement;
(G) each of the Indenture and the Registration Rights
Agreement has been duly authorized, executed and delivered by the
Company, and, assuming the due authorization, execution and delivery by
the other parties thereto, constitutes a valid and legally binding
obligation of the Company, enforceable against the Company in
accordance with its terms except as (x) the enforceability thereof may
be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar state or federal laws
affecting the rights and remedies of creditors generally and general
equitable principles (whether considered in a proceeding in equity or
at law), (y) rights to indemnification and contribution may be limited
by public policy and (z) provisions of the Indenture, if any, requiring
any waiver of stay or extension laws, diligent performance or other
acts on the part of the Trustee may be unenforceable under principles
of public policy;
(H) neither the execution, delivery nor performance by the
Company of its obligations under the Transaction Documents nor the
issuance, sale and delivery of the Notes in accordance with their terms
will contravene (i) the DGCL or any U.S. federal or New York State law,
statute, ordinance, rule, regulation, judgment, order or decree
applicable to the Company or any of its assets or properties, whether
owned or leased, (ii) the Certificate of Incorporation or By-laws of
the Company, (iii) any agreement or other instrument binding upon the
Company or any of its Subsidiaries that is material to the Company and
its Subsidiaries, taken as a whole, or (iv) any judgment, order or
decree of any governmental body, agency or court having jurisdiction
over the Company or any Subsidiary, except, in the case of clauses (i),
(iii) and (iv), for such contraventions which
D-3
would not have a Material Adverse Effect on the Company and its
Subsidiaries, taken as a whole and, except as may be required under
applicable state securities or Blue Sky laws, and except for the filing
of registration statements under the Securities Act and qualification
of the Supplemental Indenture under the Trust Indenture Act in
connection with the Registration Rights Agreement, no consent,
approval, authorization or order of, or qualification with, any U.S.
federal or New York or Delaware state governmental body or agency is
required for the performance by the Company of its obligations under
the Transaction Documents;
(I) to the best knowledge of such counsel, there is no legal
or governmental proceeding, now pending or threatened, to which the
Company or any of its Subsidiaries is a party or to which any of the
properties of the Company or any of its Subsidiaries is or may be
subject that is required to be disclosed in the Offering Memorandum and
that is not so disclosed, or which could reasonably be expected to have
a Material Adverse Effect on the Company and its Subsidiaries, taken as
a whole, or on the ability of the Company to perform its obligations
under the Transaction Documents or to consummate the transactions
contemplated by the Offering Memorandum;
(J) the Company is not, and after giving effect to the
offering and sale of the Notes and the application of the proceeds
thereof as described in the Offering Memorandum, will not be an
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended;
(K) the statements in the Offering Memorandum under the
captions "Business -- Legal Proceedings," "Description of Certain
Indebtedness," "Description of the Notes,""Private Placement" and
"Transfer Restrictions," in each case insofar as such statements
constitute summaries of the legal matters, documents or proceedings
referred to therein, constitute accurate summaries of the matters
described therein in all material respects;
(L) the statements in the Offering Memorandum, under the
caption "Certain Income Tax Considerations -- Certain United States
Federal Income Tax Considerations" insofar as such statements
constitute summaries of certain U.S. federal income tax laws and
regulations, constitute accurate summaries of the matters described
therein in all material respects;
(M) based upon the representations, warranties, and agreements
of the Company in the Purchase Agreement and of the Purchasers in
Section 7 of the Purchase Agreement, it is not necessary in connection
with the offer, sale and delivery of the Notes to the Purchaser under
the Purchase Agreement or in connection with the initial resale of such
Notes by the Purchaser solely in accordance with Section 7 of the
Xxxxxxxx
X-0
Agreement, to register the Notes under the Securities Act, it being
understood that no opinion is expressed as to any subsequent resale of
any Note; and
(N) any document filed by the Company with the Securities and
Exchange Commission and incorporated by reference in the Offering
Memorandum or from which information is so incorporated by reference,
when it was filed or became effective, as the case may be, complied as
to form in all material respects with the requirements of the
Securities Act and the Exchange Act, as applicable, and the rules and
regulations promulgated thereunder.
* * * * * * * * *
ATTACHMENT A
TO
FORM OF XXXXXX XXXX & XXXXXX LLP OPINION
In the course of the preparation by the Company of the
Offering Memorandum, we have participated in conferences with officers,
directors and representatives of the Company, its independent auditors,
officers, directors and your representatives and representatives of your counsel
at which conferences the contents of the Offering Memorandum and related matters
were discussed. Although we have not independently verified the accuracy or
completeness of, or otherwise verified the statements made in the Offering
Memorandum (other than as expressly provided above), nothing has come to our
attention that has led us to believe that the Offering Memorandum, as of its
date or the date hereof, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order the make the statements
therein, in the light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, we are not expressing any opinion or
belief as to the financial statements and supporting notes and schedules and
other financial data contained in the Offering Memorandum.
EXHIBIT E
FORM OF FOREIGN LOCAL COUNSEL OPINION
(A) [________] (the "Company") has been duly incorporated, is
validly existing as a company under the laws of [Name of Country], has the
corporate power and authority to own its property and to conduct its business as
described in the Offering Memorandum of Viatel, Inc. dated December 8, 1999 (the
"Offering Memorandum") and is duly qualified to transact business in each
jurisdiction in which the conduct of its business or its ownership or leasing of
property requires such qualification (except to the extent that the failure to
be so qualified would not in our view have a Material Adverse Effect on the
Company and its subsidiaries taken as a whole).
(B) The Company has no subsidiaries.
(C) The Company has all materially necessary certificates,
orders, permits, licenses, authorizations, consents and approvals of and from,
and has made all declarations and filings with all relevant governmental
authorities, all self-regulatory organizations and all relevant courts and
tribunals, to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Offering Memorandum, and, to
the best of our knowledge, after due inquiry has not received any notice of
proceedings relating to revocation or modification of any such certificates,
orders, permits, licenses, authorizations, consents or approvals, nor is the
Company in violation of, or in default under, any federal, state, local,
national or regional law, regulation, rule, decree, order or judgment applicable
to the Company, the effect of which, singly or in the aggregate, would have a
material adverse effect on the prospects, condition, financial or otherwise, or
in the earnings, business or operations of the Company, except as described
herein or in the Offering Memorandum.
(D) The statements in the Offering Memorandum under the
caption "Business -- [_______]" are accurate in all material respects and fairly
summarize all matters referred to therein.
(E) There are no restrictions (legal, contractual or
otherwise) on the ability of the Company to declare and pay any dividend or make
any payment or transfer of property or assets to its stockholders other than
those described in the Offering Memorandum and such restrictions as would not
have a material adverse effect on the prospects, condition, financial or
otherwise, or in the earnings, business or operations of the Company and such
descriptions, if any, fairly summarize such restrictions.
* * * * * * * * *
EXHIBIT G
FORM OF U.S. REGULATORY COUNSEL OPINION
Pursuant to Section 5(f) of the Purchase Agreement, Xxxxxxxx & Xxxxxxxx
LLP, regulatory counsel for the Company, shall furnish an opinion to the effect
that:
(A) (1) the execution and delivery of the Purchase Agreement
by the Company and the consummation of the transactions contemplated
thereby do not violate (i) the federal Communications Act of 1934, as
amended, and the Telecommunications Act of 1996, any rules or
regulations of the Federal Communications Commission ("FCC") applicable
to the Company (collectively, the "Communications Act"), (ii) any state
telecommunications law, rules or regulations ("State Law") applicable
to the Company, and (iii) to the best of such counsel's knowledge, any
decree from any court, and (2) no consent, approval, authorization or
order of or filing with the FCC or any state authority overseeing
telecommunications matters ("State Authority"), is necessary for the
execution and delivery of the Purchase Agreement by the Company and
except to the extent that the failure to obtain such consents,
approvals, authorizations or orders or to make filings with, the FCC or
any State Authority would not, individually or in the aggregate, have a
material adverse effect on the prospects, condition (financial or
otherwise) or in the earnings, business or operations of the Company
and the subsidiaries listed in Schedule B to the Purchase Agreement
(the "Subsidiaries") taken as a whole;
(B) except as indicated in this paragraph B, to the best of
our knowledge, (1) the Company and its Subsidiaries have made all
reports and filings, and paid all fees, required by the FCC and the
State Authorities, and have all certificates, orders, permits,
licenses, authorizations, consents and approvals of and from, and have
made all filings and registrations, with the FCC and the State
Authorities necessary to own, lease, license and use its properties and
assets and to conduct its respective business in the manner described
in the Offering Memorandum, except for those filings, fees, and
approvals the failure to obtain or file of which would not have
material adverse effect on the financial condition, or on the earnings,
business, or operations of the Company and its Subsidiaries, taken as a
whole; (2) has not received any notice of proceedings relating to the
violation, revocation or modification of any such certificates, orders,
permits, licenses, authorizations, consents or approvals, or the
qualification or rejection of any such filing or registration, the
effect of which, singly or in the aggregate, would have a material
adverse effect on the prospects, condition, financial or otherwise, or
in the earnings, business or operations of the Company, taken as a
whole; and (3) neither the Company nor its Subsidiaries is in violation
of, or in default under, the Communications
Act or State Law, the effect of which, singly or in the aggregate,
would have a material adverse effect on the prospects, condition,
financial or otherwise, or in the earnings, business or operations of
the Company and its Subsidiaries, taken as a whole;
(C) to the best of such counsel's knowledge after due inquiry
(i) no adverse judgment, decree or order of the FCC or any State
Authority has been issued against the Company or its Subsidiaries and
(ii) no litigation, proceeding, inquiry or investigation has been
commenced or threatened against the Company or its Subsidiaries before
or by the FCC or any State Authority which, if decided adversely to the
interests of the Company or its Subsidiaries would have a material
adverse effect on the Company and its Subsidiaries, taken as a whole;
and
(D) the statements in the Offering Memorandum under the
captions "Risk Factors -- Competition," "Risk Factors -- Substantial
Government Regulation," "Business -- Government Regulation," insofar as
such statements constitute a summary of the legal matters, documents or
proceedings of the FCC and State Authorities with respect to
telecommunications regulation referred to therein, fairly summarize the
matters referred to therein.
* * * * * * * * *
EXHIBIT H
DESTIA OFFICER'S CERTIFICATE
Reference is made to the Purchase Agreement, dated December 8,
1999 (the "Purchase Agreement"), between Viatel, Inc., a Delaware corporation,
and Xxxxxx Xxxxxxx & Co. Incorporated. Each capitalized term used but not
defined herein shall have the meaning ascribed thereto in the Purchase
Agreement.
I, Xxxxxxx X. Xxxxxxx, Xx., certify that:
(i) I am the duly qualified and elected General Counsel and
Senior Vice President of Destia Communications, Inc. (the "Company"),
and that, as such, I am authorized to execute this certificate on
behalf of the Company pursuant to Section 8(p) of the Purchase
Agreement;
(ii) I have read the Offering Memorandum, dated December 8,
1999, and the statements made in this certificate are based upon my
review of the Offering Memorandum, upon a general knowledge of and
familiarity with the operations of the Company and upon the performance
of my duties as an officer of the Company; and
(iii) I do hereby further certify that the Offering Memorandum
does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
except that the certification set forth in this paragraph do not apply
to statements in or omissions from the Offering Memorandum that does
not relate to the Company.
H-2
IN WITNESS WHEREOF, I have executed this certificate of Destia
Communications, Inc. on this 8th day of December, 1999.
By:_________________________________
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title:
