EXECUTION COPY
VIATEL, INC.
EURO 300,000,000 OF 12 3/4% SENIOR EURO NOTES DUE 2008
PLACEMENT AGREEMENT
April 14, 2000
PLACEMENT AGREEMENT
April 14, 2000
Xxxxxx Xxxxxxx & Co. International Limited
Chase Securities Inc.
Credit Suisse First Boston Corporation
c/o Morgan Xxxxxxx & Co. International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs and Mesdames:
Viatel, Inc., a Delaware corporation (the "COMPANY"), proposes to issue and
sell to the several placement agents named in Schedule I hereto (the "PLACEMENT
AGENTS") an aggregate of Euro 300,000,000 principal amount of 12 3/4% Senior
Euro Notes Due 2008 of the Company (the "NOTES") to be issued pursuant to the
provisions of an indenture, to be dated April 20, 2000 (the "INDENTURE"),
between the Company and The Bank of New York, as trustee (in such capacity, the
"TRUSTEE").
Capitalized terms used herein without definition have the respective
meanings specified in the Final Memorandum (as defined below).
The 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 and
outside the United States in compliance with Regulation S under the Securities
Act ("REGULATION S").
The Placement Agents 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 Notes to the Placement Agents, the
Company has prepared a preliminary offering memorandum issued on April 7, 2000
(the "PRELIMINARY MEMORANDUM") and a final offering memorandum, dated April 14,
2000 (the "FINAL MEMORANDUM" and, together with the Preliminary Memorandum, the
"MEMORANDUM"), setting forth or including a description of the terms of the
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 Final
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 Final 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 good standing would not have a Material
Adverse Effect (as defined below) on the Company and the Subsidiaries,
taken as a whole.
(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 Final Memorandum.
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
(e) The 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 Placement Agents 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,
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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 Notes are to be issued, and the Registration
Rights Agreement.
(f) The Preliminary Memorandum as of the date hereof does not
contain and the Final Memorandum, on the Closing Date and in the form
used by the Placement Agents to confirm sales, 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 either Memorandum (or any
supplement or amendment thereto) based upon information relating to
any Placement Agent furnished to the Company in writing by such
Placement Agent 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 and the Notes
(collectively, the "TRANSACTION DOCUMENTS") and the issuance, sale and
delivery of the 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
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 (as defined below) 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, (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) 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
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(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.
(i) The Notes and the Indenture conform in all material respects
to the descriptions thereof contained in the Final Memorandum under
the heading "Description of the Notes."
(j) Assuming the accuracy of the Placement Agents'
representations contained herein and the Placement Agents' compliance
with their agreements hereunder, it is not necessary to register the
Notes under the Securities Act or to qualify the Indenture under the
Trust Indenture Act of 1939, as amended.
(k) 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 Final
Memorandum, attached as EXHIBIT C; furthermore, (i) other than the
transactions contemplated hereby, 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) 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 Final Memorandum.
(l) 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 Final 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 Final
Memorandum.
(m) 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 Final 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.
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(n) 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 Notes in a manner that would require
the registration under the Securities Act of the 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 Notes in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act.
(o) 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.
(p) 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.
(q) The Notes satisfy the requirements set forth in Rule
144A(d)(3) under the Securities Act.
(r) Except as described in the Final 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 Final Memorandum, except
to the extent that the failure to obtain such consents,
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.
(s) 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 Final 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 Final Memorandum and subject to
the Enforceability Exceptions.
(t) 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 Final
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.
(u) No material labor dispute with the employees of the Company
or any of its Subsidiaries exists, except as described in or
contemplated by the Final 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.
(v) (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 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)
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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 Final Memorandum.
(w) 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.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees to sell to
the several Placement Agents, and each Placement Agent upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company, the respective principal amount of Notes set forth in Schedule I hereto
opposite its name at a purchase price equal to 97% of the principal amount
thereof (which reflects a 3% commission) (the "PURCHASE PRICE"), plus accrued
interest, if any, from April 20, 2000 to the Closing Date.
The Company hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxxx & Co. International Limited on behalf of the Placement Agents, 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 Notes (other than the sale of the Notes under this
Agreement).
3. TERMS OF OFFERING. The Placement Agents have advised the Company that
the Placement Agents will make an offering of the Notes purchased by the
Placement Agents hereunder on the terms set forth in the Final Memorandum, as
soon as practicable after this Agreement is entered into as in the judgment of
the Placement Agents is advisable.
4. PAYMENT AND DELIVERY. Payment for the Notes shall be made to the Company
in federal or other funds immediately available in New York City against
delivery of such Notes at the closing to be held at the office of Shearman &
Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 9:00 A.M., local time, on
April 20, 2000, or at such other time on the same or such other date, not later
than May 4, 2000, as shall be agreed to by the Company and
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Xxxxxx Xxxxxxx & Co. International Limited. 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 the Placement Agents, and registered in such names and in such
denominations as the Placement Agents 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 the Placement Agents on the Closing Date, with
any transfer taxes payable in connection with the transfer of the Notes to the
Placement Agents duly paid, against payment of the Purchase Price therefor.
5. CONDITIONS TO THE PLACEMENT AGENTS' OBLIGATION. The obligations of the
several Placement Agents 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 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 and its Subsidiaries, taken as a
whole, from that set forth in the Final Memorandum (exclusive of
any amendments or supplements thereto subsequent to the date of
this Agreement) that, in the reasonable judgment of the Placement
Agents, is material and adverse and that makes it, in the
reasonable judgment of the Placement Agents, impracticable to
market the Notes on the terms and in the manner contemplated in
the Final Memorandum.
(b) The Placement Agents 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
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such certificate may rely upon the best of his or her knowledge as to
any proceedings threatened.
(c) The Placement Agents 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 Placement Agents, 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 Final Memorandum and (B) on the date
hereof, letters dated the date hereof, in form and substance
satisfactory to the Placement Agents, from KPMG LLP, independent
public accountants, with respect to agreed-upon procedures to be
applied to information contained in the Final Memorandum with respect
to billable minutes, revenue per billable minute and number of
customers, 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 Placement Agents shall have received on the Closing Date
an opinion of Xxxxxx Xxxx & Xxxxxx LLP, outside counsel to the
Company, dated the Closing Date, to the effect set forth in EXHIBIT D.
Such opinion shall be rendered to the Placement Agents at the request
of the Company and shall so state therein.
(e) The Placement Agents 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 Placement Agents. Such opinions
shall be rendered to the Placement Agents at the request of the
Company and shall so state therein.
(f) The Placement Agents 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 Placement Agents at
the request of the Company and shall so state therein.
(g) The Placement Agents shall have received on the Closing Date
an opinion of Shearman & Sterling, counsel to the Placement Agents,
dated the Closing Date, in form and substance satisfactory to you.
(h) The Registration Rights Agreement shall be executed and in
full force and effect.
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(i) The Placement Agents shall have received such other
documents and certificates as are reasonably requested by the Placement
Agents or their counsel.
6. COVENANTS OF THE COMPANY. In further consideration of the agreements of
the Placement Agents contained in this Agreement, the Company covenants with
each Placement Agent as follows:
(a) To use its best efforts to furnish to each Placement Agent in
New York City, without charge, prior to 9:00 a.m. New York City time
on April 19, 2000 and during the period mentioned in Section 6(c), as
many copies of the Final Memorandum, any supplements and amendments
thereto and any documents incorporated by reference therein as you may
reasonably request.
(b) Before amending or supplementing the Final Memorandum, to
furnish to each Placement Agent 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. International Limited,
which consent shall not be unreasonably withheld or delayed.
(c) If, during such period after the date hereof and prior to the
date on which all of the Notes shall have been sold by the Placement
Agents, any event shall occur or condition exist as a result of which
it is necessary to amend or supplement the Final Memorandum in order
to make the statements therein, in the light of the circumstances when
the Final Memorandum is delivered to a purchaser, not misleading, or
if, in the opinion of counsel to the Placement Agents it is necessary
to amend or supplement the Final Memorandum to comply with applicable
law, forthwith to prepare and furnish, at its own expense, to the
Placement Agents, either amendments or supplements to the Final
Memorandum so that the statements in the Final Memorandum as so
amended or supplemented will not, in the light of the circumstances
when the Final Memorandum is delivered to a purchaser, be misleading
or so that the Final Memorandum, as so amended or supplemented, will
comply with applicable law.
(d) To endeavor to qualify the Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Placement
Agents 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 reasonable
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expenses incident to the performance of its obligations under this
Agreement, including: (i) the preparation of each Final Memorandum and
all amendments and supplements thereto, (ii) the preparation, issuance
and delivery of the Notes, (iii) the fees and disbursements of the
Company's counsel and accountants and the Trustee and its counsel,
(iv) the qualification of such 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 one counsel for the Placement
Agents in connection therewith and in connection with the preparation
of any Blue Sky or legal investment memoranda, (v) the printing and
delivery to the Placement Agents in quantities as hereinabove stated
of copies of the each Memorandum and any amendments or supplements
thereto, (vi) any fees charged by rating agencies, (vii) all
reasonable document production charges and expenses of one counsel to
the Placement Agents (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 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, 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) such other reasonable 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 Placement Agents will pay all of their costs and
expenses, including fees and disbursements of their 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 Notes in a manner which would require the
registration under the Securities Act of such Notes.
(g) Neither the Company nor any Subsidiary will solicit any offer
to buy or offer or sell the 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 Notes remain "restricted securities" within
the meaning of Rule 144 under the Securities Act, to make available,
upon request, to any seller of
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such 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) Except as may be contemplated by the Registration Rights
Agreement, none of the Company, its Affiliates or any person acting on
its or their behalf (other than the Placement Agents) will engage in
any directed selling efforts (as that term is defined in Regulation S)
with respect to the Notes and the Company and its Affiliates and each
person acting on its or their behalf (other than the Placement Agents)
will comply with the offering restrictions of Regulation S.
(j) To refuse, and to cause the Trustee or the registrar and
transfer agent, as the case may be, to refuse, to register any
transfer of the Notes sold pursuant to Regulation S if such transfer
is not made in accordance with the provisions of Regulation S and the
Indenture.
(k) To use its reasonable best efforts to permit the 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.
(l) The Company shall not, and shall use its best efforts to
cause its Affiliates not to, purchase and then resell or otherwise
transfer any Notes.
(m) It will use reasonable best efforts to permit the inclusion
of the Notes in the regulated unofficial market (Freiverkehr) on the
Frankfurt Stock Exchange, or another European Stock Market, within six
months after the Closing Date.
7. OFFERING OF NOTES; RESTRICTIONS ON TRANSFER. (a) Each Placement Agent,
severally and not jointly, represents and warrants that such Placement Agent is
a qualified institutional buyer as defined in Rule 144A under the Securities Act
(a "QIB"). Each Placement Agent agrees with the Company that (i) it will not
solicit offers for, or offer or sell, 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 will solicit offers for Notes
only from, and will offer such Notes only to, persons that it reasonably
believes to be (A) in the case of offers inside the United States, other QIBs
and (B) in the case of offers outside the United States, to persons other than
U.S. persons ("foreign purchasers," which term shall include dealers or other
professional fiduciaries in the United States acting on a discretionary basis
for foreign beneficial owners (other than an estate or trust)) in reliance upon
Regulation S under the Securities Act that, in each case, in purchasing such
Notes are deemed to have represented and agreed as provided in either Memorandum
under the caption "Transfer Restrictions."
12
(b) Each Placement Agent, severally and not jointly, 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 Final 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) such Placement Agent 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
Final Memorandum or any such other material, in all cases at its own
expense;
(iii) the Notes have not been registered under the Securities
Act and may not be offered or sold within the United States or to, or
for the account or benefit of, U.S. persons except in accordance with
Rule 144A or outside the United States or to, or for the account or
benefit of, non-U.S. persons except in accordance with Regulation S
under the Securities Act, or pursuant to another exemption from the
registration requirements of the Securities Act;
(iv) such Placement Agent has offered the Notes and will offer
and sell the Notes (A) as part of their distribution at any time and
(B) otherwise until 40 days after the later of the commencement of the
offering and the Closing Date, only in accordance with Rule 903 of
Regulation S or as otherwise permitted in Section 7(a); accordingly,
neither such Placement Agent, its Affiliates nor any persons acting on
its or their behalf have engaged or will engage in any directed selling
efforts (within the meaning of Regulation S) with respect to the Notes,
and any such Placement Agent, its Affiliates and any such persons have
complied and will comply with the offering restrictions requirement of
Regulation S;
(v) such Placement Agent 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)
13
Order 1996, or is a person to whom such document may otherwise lawfully be
issued or passed on;
(vi) such Placement Agent 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; and
(vii) such Placement Agent agrees that, at or prior to
confirmation of sales of the Notes, it will have sent to each
distributor, dealer or person receiving a selling concession, fee or
other remuneration that purchases Notes from it during the restricted
period a confirmation or notice to substantially the following effect:
"The Notes covered hereby have not been registered
under the U.S. Securities Act of 1933 (the "Securities Act")
and may not be offered and sold within the United States or
to, or for the account or benefit of, U.S. persons (i) as part
of their distribution at any time or (ii) otherwise until 40
days after the later of the commencement of the offering and
the Closing Date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Securities
Act. Terms used above have the meaning given to them by
Regulation S."
Terms used in this Section 7(b) have the meanings given to them by
Regulation S.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Placement Agent, and each person, if any, who controls such Placement Agent
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 each 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 will 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 Placement Agents furnished to the Company in writing by the
Placement Agents expressly for use therein.
14
(b) Each Placement Agent agrees, severally and not jointly, 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 such Placement Agent, but only with
reference to information relating to such Placement Agent furnished to the
Company in writing by such Placement Agent expressly for use in either
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 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. International Limited 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
15
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 Placement
Agents, 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 Placement Agents 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 Placement Agents, on the other hand, in
connection with the offering of the Notes shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the Notes (net
of discounts and commissions but before deducting expenses) received by the
Company and the total discounts and commissions received by the Placement Agents
in respect thereof bear to the aggregate offering price of the Notes. The
relative fault of the Company, on the one hand, and the Placement Agents, on the
other hand, shall be determined by reference to, 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 Placement Agents and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Placement Agents' respective obligations to contribute pursuant to this
Section 8 are several in proportion to the respective principal amount of Notes
they have purchased hereunder, and not joint.
(e) The Company and the Placement Agents 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 Placement Agents shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Notes resold
16
by it in the initial placement of such Notes were offered to investors exceeds
the amount of any damages that such Placement Agent 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 any Placement Agent or any person
controlling any Placement Agent 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 Notes.
9. TERMINATION. This Agreement shall be subject to termination by notice
given by the Placement Agents to the Company, if (a) after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board of Options Exchange,
the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of
any securities of the Company shall have been suspended on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses 9(a)(i) through 9(a)(iv) above, such event,
singly or together with any other such event, makes it, in your judgment,
impracticable to market the Notes on the terms and in the manner contemplated in
the Final Memorandum.
10. EFFECTIVENESS; DEFAULTING PLACEMENT AGENTS. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Placement Agents shall fail
or refuse to purchase Notes that it or they have agreed to purchase hereunder on
such date, and the aggregate principal amount of Notes which such defaulting
Placement Agent or Placement Agents agreed but failed or refused to purchase is
not more than one-tenth of the aggregate principal amount of Notes to be
purchased on such date, the other Placement Agents shall be obligated severally
in the proportions that the principal amount of Notes set forth opposite their
respective names in Schedule I bears to the aggregate principal amount of Notes
set forth opposite the names of all such non-defaulting Placement Agents, or in
such other proportions as you may specify, to purchase the Notes which such
defaulting Placement Agent or Placement
17
Agents agreed but failed or refused to purchase on such date; PROVIDED that in
no event shall the principal amount of Notes that any Placement Agent has agreed
to purchase pursuant to this Agreement be increased pursuant to this Section 10
by an amount in excess of one-ninth of such principal amount of Notes without
the written consent of such Placement Agent. If, on the Closing Date, any
Placement Agent or Placement Agents shall fail or refuse to purchase Notes which
it or they have agreed to purchase hereunder on such date and the aggregate
principal amount of Notes with respect to which such default occurs is more than
one-tenth of the aggregate principal amount of Notes to be purchased on such
date, and arrangements satisfactory to you and the Company for the purchase of
such Notes are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Placement Agent or
of the Company. In any such case either you or the Company shall have the right
to postpone the Closing Date, but in no event for longer than seven days, in
order that the required changes, if any, in the Final Memorandum or in any other
documents or arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Placement Agent from liability in respect of
any default of such Placement Agent under this Agreement.
If this Agreement shall be terminated by the Placement Agents, or any of
them, 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 any of the
Placement Agents), the Company will reimburse the Placement Agent or such
Placement Agents as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including the fees and
disbursements of its counsel) reasonably incurred by such Placement Agents in
connection with this Agreement or the offering contemplated hereunder.
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 Placement Agents:
Xxxxxx Xxxxxxx & Co. International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Attention: High Yield Capital Markets
18
(b) If to the Company:
Viatel, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Senior Vice President and General
Counsel
with a copy to:
Xxxxxx Xxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxx
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.
[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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
Placement Agents.
Very truly yours,
VIATEL, INC.
By: /s/ Xxxxx X. Xxxx
-----------------------
Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
Agreed, April , 2000
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
Acting severally on behalf of the Placement Agents
named in Schedule I hereto
By: Xxxxxx Xxxxxxx & Co. International Limited
By: /s/ Xxxx Xxxxx
______________________________
Name: Xxxx Xxxxx
Title: Managing Director
SCHEDULE I
Principal Amount of Notes
Placement Agent to Be Purchased
--------------------------------------------------------------------------------
Xxxxxx Xxxxxxx & Co. International Limited . . . . . Euro 240,000,000
Chase Securities Inc. . . . . . . . . . . . . . . . . Euro 30,000,000
Credit Suisse First Boston Corporation . . . . . . . Euro 30,000,000
Total: . . . . . . . . . . . . . . . . . . . Euro 300,000,000
EXHIBIT A
FORM OF REGISTRATION RIGHTS AGREEMENT
EXHIBIT B
SUBSIDIARIES OF VIATEL, INC.
Jurisdiction of Incorporation
United States Subsidiary or Organization/ Foreign Qualifications
------------------------ ---------------------------------------
Xxxxxx.xxx, Inc. Delaware
Destia Communications, Inc. Delaware, NY
Off the Mall Advertising Inc. Delaware
Viatel Argentina Holdings, Inc. Delaware
Viatel Argentina Management, Inc. Delaware
Viatel Brazil Holdings, Inc. Delaware
Viatel Brazil Management, Inc. Delaware
Viatel Cable Assets Inc. Delaware
Viatel Circe Cable System, Limited Delaware
Viatel Columbia Management, Inc. Delaware
Viatel Development Company Delaware, TX
Viatel Finance Company L.L.C. Delaware
Viatel Finland, Inc. Delaware
Viatel Finland, Inc. Delaware
Viatel Global Communications, Ltd. Delaware
Viatel Nebraska, Inc. Delaware
Viatel New Jersey, Inc. DE, NJ
Viatel Sales U.S.A., Inc. DE, IN, CA, IL, CO
Viatel Services, Inc. All States
Viatel Sweden, Inc. Delaware
Viatel Virginia, Inc. Delaware
VYTL LLC Delaware (pending)
Voicenet Corporation New York
YYC Communications, Inc. DE, NY
Name of Foreign Subsidiary Country
-------------------------- -------
Econophone GmbH Austria
CallBvBa Belgium
Econophone NV Belgium
Viaphone NV/SA Belgium
Viatel Belgium S.A./N.V Belgium
Destia Communications Canada Inc. Canada
Viacol Ltda. Columbia
Destia Communications SA France
Viatel Operations S.A. France
Viatel S.A. France
VPN S.A.R.L. France
Econophone GmbH Germany
Teleriffic Global Communications GmbH Germany
Viatel Communcations Gmbh Germany
(Formerly Viaphone GmbH
Viatel GmbH Germany
Viatel German Asset GmbH Germany
Viatel Global Communications GmbH Germany
ViCaMe Infrastructure Development GmbH Germany
Econophone (Hellas), SA Greece
Call the World Ireland
Destia Communications Ireland
Destia Communications Services, Ltd. Ireland
Viatel Global Communications S.p.A. Italy
Viatel S.R.L. Italy
Econophone Netherlands X.X. Xxxxxxxxxxx
Xxxxxx X.X. Xxxxxxxxxxx
Viafoperations Communications B.V. Netherlands
Viatel Global Communications B.V. Netherlands
Viatel European Holding S.R.L. Spain
Viafon Dat Iberica, S.A. Spain
Viatel Global Communications Espana S.A. Spain
Name of Foreign Subsidiary Country
-------------------------- -------
Econophone AG Switzerland
Econophone Services GmbH Switzerland
Phonecentre GmbH Switzerland
Viaphone AG Switzerland
Viatel AG Switzerland
Amber Hold, Limited United Kingdom
America 1st Limited United Kingdom
Destia Communications, Limited United Kingdom
Destia Communications Holdings, Limited United Kingdom
Destia Network Services Limited United Kingdom
Econophone, Limited United Kingdom
Network Managed Services Limited United Kingdom
Viatel Communications U.K. Limited United Kingdom(in formation)
Viatel Austria, Limited United Kingdom
Viatel Belgium Limited United Kingdom
Viatel Cable Assets Limited United Kingdom
Viatel Communications Limited United Kingdom
Viatel (I) Limited United Kingdom
Viatel Spain Limited United Kingdom
Viatel U.K. Limited United Kingdom
Viatel Global Communications (UK) Limited United Kingdom
Viatel Cables Limited United Kingdom
Viatel Holdings (UK) Limited United Kingdom
WaveTech, Limited United Kingdom
WaveTech Network Services Limited United Kingdom
* * * * * * * * *
EXHIBIT C
FINAL MEMORANDUM,
DATED APRIL 14, 2000
EXHIBIT D
FORM OF OPINION OF
XXXXXX XXXX & XXXXXX LLP
Pursuant to Section 5(d) of the Placement 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 Final
Memorandum (references herein to the Final 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 and the Registration
Rights 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 Placement Agreement has been duly authorized, executed
and delivered by the Company;
(D) 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 Placement 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 and the
Registration Rights Agreement;
(E) 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;
(F) 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
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 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;
(G) 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 Final 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 Final Memorandum;
(H) 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 Final Memorandum,
will not be an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended;
(I) the statements in the Final 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;
(J) the statements in the Final 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;
(K) based upon the representations, warranties, and agreements of
the Company in the Placement Agreement and of the Placement Agents in
Section 7 of the Placement Agreement, it is not necessary in
connection with the offer, sale and delivery of the Notes to the
Placement Agents under the Placement Agreement or in connection with
the initial resale of such Notes by the Placement Agents solely in
accordance with Section 7 of the Placement 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
(L) any document filed by the Company with the Securities and
Exchange Commission and incorporated by reference in the Final
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 Final 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 Final 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 Final Memorandum (other than as expressly
provided above), nothing has come to our attention that has led us to believe
that the Final 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 belief as to the financial statements and
supporting notes and schedules and other financial data contained in the Final
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 April ___, 2000 (the "Final
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 Final 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 Final
Memorandum.
(D) The statements in the Final 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 Final 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 Placement 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 Placement 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 Placement 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 on 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 Final 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 Final Memorandum under the captions
"Risk Factors -- Competition," "Risk Factors -- Substantial Government
Regulation," and "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.
* * * * * * * * *
