EXHIBIT 4.8
VIATEL, INC.
$200,000,000 OF 11 1/2% SENIOR DOLLAR NOTES DUE 2009
Euro 150,000,000 OF 11 1/2% SENIOR EURO NOTES DUE 2009
PURCHASE AGREEMENT
March 12, 1999
VIATEL, INC.
PURCHASE AGREEMENT
March 12, 1999
Xxxxxx Xxxxxxx & Co. Incorporated
ING Baring Xxxxxx Xxxx LLC
c/x Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 10036-8293
Dear Sirs and Mesdames:
Viatel, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell to the initial purchasers named in Schedule I hereto (the
"Initial Purchasers") an aggregate of $200 million of 11 1/2% Senior Dollar
Notes Due 2009 of the Company (the "Senior Dollar Notes") to be issued pursuant
to the provisions of an indenture (the "Senior Dollar Notes Indenture") to be
dated as of the Closing Date (as defined below) between the Company and the Bank
of New York, as trustee (in such capacity, the "Trustee"), and an aggregate of
Euro 150 million of 11 1/2% Senior Euro Notes Due 2009 of the Company (the
"Senior Euro Notes"; and together with the Senior Dollar Notes, collectively,
the "Notes") to be issued pursuant to the provisions of an indenture (the
"Senior Euro Notes Indenture"; and together with the Senior Dollar Notes
Indenture, the "Indentures") to be dated as of the Closing Date between the
Company and the Trustee.
The Senior Dollar Notes Indenture will provide that on the
Closing Date the Company will purchase and pledge to the Trustee for the benefit
of the registered holders of the Senior Dollar Notes (collectively, the "Dollar
Note Holders"), pursuant to the terms of the Pledge Agreement, the U.S. Pledged
Securities 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 four scheduled interest payments on the Senior Dollar Notes. The Senior
Euro Notes Indenture will provide that on the Closing Date the Company will
purchase and pledge to the Trustee for the benefit of the registered holders of
the Senior Euro Notes (collectively, the "Euro Note Holders"; and together with
the Dollar Note Holders, the "Holders"), pursuant to the terms of the Pledge
Agreement, the Euro Pledged Securities 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 four scheduled interest payments on the Senior Euro
Notes.
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Capitalized terms used herein without definition have the
respective meanings specified in the Offering 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 Initial Purchasers 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, the Company has
prepared an offering memorandum dated March 12, 1999 (the "Offering 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 Offering Memorandum sent to investors will 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 any Initial Purchaser furnished to the
Company in writing by such Initial Purchaser expressly for use therein.
(b) 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.
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(c) Each subsidiary of the Company is listed on Exhibit B
hereto (each a "Subsidiary" and, collectively, the "Subsidiaries"). 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 good standing would not have a Material
Adverse Effect (defined below) on the Company and the Subsidiaries,
taken as a whole; 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 Notes have been duly authorized by the Company and,
when issued and authenticated in accordance with the respective
Indenture and delivered to and paid for by the Initial Purchasers in
accordance with the terms of this Agreement and the respective
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 respective Indenture pursuant to which
such Notes are to be issued and the Registration Rights Agreement and
the Pledge Agreement.
(f) Each of the Indentures and the Registration Rights
Agreement has been duly authorized by the Company and, when duly
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 and except that (x) rights to indemnification and
contribution may be limited by public policy and (y) provisions of the
Indentures, 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.
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(g) The Pledge 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.
(h) Upon the delivery to the Trustee of the certificates or
instruments, if any, representing the U.S. Pledged Securities and the
Euro Pledged Securities, the pledge of and grant of a security interest
in the U.S. Pledged Securities and the Euro Pledged Securities for the
benefit of the Trustee and the Holders, as the case may be, will
constitute a first priority security interest in the U.S. Pledged
Securities and the Euro Pledged Securities, enforceable against all
creditors of the Company (and any persons purporting to purchase any of
the U.S. Pledged Securities or Euro Pledged Securities from the
Company).
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indentures, the Registration Rights Agreement, the Pledge 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 or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under the Transaction
Documents, 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.
(j) 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 of the Company and its Subsidiaries, taken as a whole (a
"Material Adverse Effect"), from that set forth in the
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draft of the Offering 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 (3)
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.
(k) 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.
(l) 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.
(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 Offering 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.
(n) Assuming the accuracy of the Initial Purchasers'
representations contained herein and the Initial Purchasers' compliance
with their agreements
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hereunder, it is not necessary to register the Notes under the
Securities Act or to qualify the Indentures under the Trust
Indenture Act of 1939, as amended.
(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) None of the Company, its Affiliates or any person acting
on its or their behalf (other than the Initial Purchasers) has engaged
in any directed selling efforts (as that term is defined in Regulation
S under the Securities Act) with respect to the Notes, and the Company
and its Affiliates and any person acting on its or their behalf (other
than the Initial Purchasers) have complied with the offering
restrictions requirement of Regulation S.
(s) 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, authorizations, approvals, orders, certificates or permits or
make such
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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.
(t) 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.
(u) 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.
(v) 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
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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.
(w) (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) 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.
(x) 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.
(y) The Notes and the Indentures conform in all material
respects to the descriptions thereof contained in the Offering
Memorandum under the heading "Description of the Notes."
(z) 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
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Company and its Subsidiaries, the Year 2000 Problem will have a
material adverse effect on the condition, financial or otherwise,
or on the earnings, business or operations of 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 condition, financial or
otherwise, or on the earnings, business or operations of the Company
and its Subsidiaries, taken as a whole.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees
to sell to the several Initial Purchasers, and the Initial Purchasers upon the
basis of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agree, severally and not jointly, to purchase
from the Company the amount of Senior Dollar Notes and Senior Euro Notes set
forth in the Schedule hereto opposite their names at a purchase price of $970
per $1,000 Senior Dollar Notes (the "Senior Dollar Purchase Price") and Euro 970
per Euro 1,000 of Senior Euro Notes (the "Senior Euro Purchase Price" and,
together with the Senior Dollar Purchase Price, collectively, the "Purchase
Price") plus accrued interest, if any, on the Notes from March 19, 1999 to the
Closing Date.
The Company hereby agrees that, without the prior written
consent of Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Initial
Purchasers, 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. 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 Senior Dollar Notes
shall be made to the Company in federal or other funds immediately available in
New York City against delivery of such Notes and payment for the Senior Euro
Notes shall be made to the Company in the Euro against delivery of such Notes at
the closings (the "Closings") to be held at the office of Shearman & Sterling,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 6:00 A.M. and 10:00 A.M.,
respectively, local time, on March 19, 1999, or at such other time
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on the same or such other date, not later than April 1, 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 Initial Purchasers duly paid,
against payment of the Purchase Price therefor.
5. CONDITIONS TO THE INITIAL PURCHASER'S OBLIGATION. The
several obligations of the Initial Purchasers 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,
in the rating accorded 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 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 Initial Purchasers 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
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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 Initial Purchasers 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 Initial Purchasers at the request
of the Company and shall so state therein.
(d) The Initial Purchasers 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, to the effect set forth in Exhibit E or as to such
other form as agreed to by the Initial Purchasers. Such opinions shall
be rendered to the Initial Purchasers at the request of the Company and
shall so state therein.
(e) The Initial Purchasers 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
Initial Purchasers at the request of the Company and shall so state
therein.
(f) The Initial Purchasers shall have received on the Closing
Date an opinion of Xxxxxxxx & Xxxxxxxx, counsel to the Initial
Purchasers, dated the Closing Date, in form and substance satisfactory
to you.
(g) The Initial Purchasers shall have received on or prior to
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 Initial
Purchasers, 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; PROVIDED that the letter delivered on the Closing
Date shall use a "cut-off date" not earlier than the date hereof.
(h) The Pledge Agreement shall be executed and in full force
and effect.
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(i) No event shall have occurred which limits the ability of
the Company and the Initial Purchasers to settle the Senior Euro Notes
as provided in the Offering Memorandum.
(j) The Initial Purchasers shall have received such other
documents and certificates as are reasonably requested by you or your
counsel.
In addition, the several obligations of the Initial Purchasers
to purchase and pay for the Senior Dollar Notes and Senior Euro Notes
is subject to the prior or contemporaneous purchase of Senior Euro
Notes or Senior Dollar Notes, respectively.
6. COVENANTS OF THE COMPANY. In further consideration of the
agreements of the Initial Purchasers contained in this Agreement, the Company
covenants with the Initial Purchasers as follows:
(a) To use its best efforts to furnish to you in New York
City, without charge, prior to 10:00 a.m. New York City time on
Wednesday, March 17, 1999 and during the period mentioned in Section
6(c), as many copies of the Offering Memorandum and any supplements and
amendments thereto 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.
(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 Initial
Purchasers, 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 Initial Purchasers
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 Initial Purchasers, 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.
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(d) To endeavor to qualify the 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 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
counsel for the Initial Purchasers in connection therewith and in
connection with the preparation of any Blue Sky or legal investment
memoranda, (v) the printing and delivery to the Initial Purchasers 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 Initial Purchasers (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 Market ("PORTAL") 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) 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 Initial Purchasers 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.
14
(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 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 Securities Exchange Act of 1934 (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 Initial Purchasers) 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 Initial
Purchasers) 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 Indentures.
(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 Euro Notes in the regulated unofficial market
(Freiverkehr) on the Frankfurt Stock
15
Exchange, or another European Stock Market, within six months
after the Closing Date.
7. OFFERING OF NOTES; RESTRICTIONS ON TRANSFER. (a) Each
Initial Purchasers, severally and not jointly, represents and warrants that
such Initial Purchaser is a qualified institutional buyer as defined in Rule
144A under the Securities Act (a "QIB"). Each Initial Purchaser 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 the Offering
Memorandum under the caption "Transfer Restrictions."
(b) Each Initial 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) such Initial 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 Notes have not been and will not be 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 under the Securities Act or pursuant to
another exemption from the registration requirements of the Securities
Act;
16
(iv) such Initial Purchaser 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 Closing Date, only in
accordance with Rule 903 of Regulation S or as otherwise permitted in
Section 7(a); accordingly, neither such Initial Purchaser, 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 Initial
Purchaser, its Affiliates and any such persons have complied and will
comply with the offering restrictions requirement of Regulation S;
(v) such Initial 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 Act 1986 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 Act 1986 (Investment
Advertisements) (Exemptions) Order 1996, or is a person to whom such
document may otherwise lawfully be issued or passed on;
(vi) such Initial 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; and
(vii) such Initial Purchaser 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:
17
"The Notes covered hereby have not been registered
under the U.S. Securities Act of 1933, as amended (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 Closing Date with respect to the Notes
and one year after 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 and not defined 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 Initial Purchaser, and each person, if any, who
controls such Initial 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 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 any Initial Purchaser furnished to
the Company in writing by such Initial Purchaser expressly for use therein.
(b) Each Initial Purchaser 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 Initial Purchaser, but only
with reference to information relating to such Initial Purchaser furnished to
the Company in writing by such Initial Purchaser expressly for use in the
Offering Memorandum or any amendments or supplements thereto.
18
(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 either Section 8(a) or 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. 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
19
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
Section 8(a) or 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 Initial
Purchasers, 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, on the one hand, and the Initial Purchasers, on the other hand,
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 Initial Purchasers, 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 Initial
Purchasers in respect thereof bear to the aggregate offering price of the
Notes. The relative fault of the Company, on the one hand, and of the Initial
Purchasers, 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 by the Initial Purchasers and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Company and the Initial 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 Initial Purchasers shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Notes resold by it in the initial placement of such Notes were offered to
investors exceeds the amount of any damages that such Initial 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
20
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 Initial Purchaser or any person
controlling the Initial Purchaser or by or on behalf of the Company, 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 you 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), 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 Offering Memorandum.
10. EFFECTIVENESS. This Agreement shall become effective upon
the execution and delivery hereof by the parties hereto.
11. MISCELLANEOUS. If, on the Closing Date any one or more of
the Initial Purchasers shall fail or refuse to purchase Notes that it or they
have agreed to purchase hereunder on such date, and the amount of Notes which
such defaulting Initial Purchaser or Initial Purchasers agreed but failed or
refused to purchase is not more than one-tenth of the aggregate amount of Notes
to be purchased on such date, the other Initial Purchasers shall be obligated
severally in the proportions that the amount of Notes set forth opposite their
respective names in Schedule I bears to the aggregate amount of Notes set forth
opposite the names of all such non-defaulting Initial Purchasers, or in such
other proportions as you may specify, to purchase the Notes which such
defaulting Initial Purchaser or Initial Purchasers
21
agreed but failed or refused to purchase on such date; PROVIDED that in no
event shall the amount of Notes that any Initial Purchaser has agreed to
purchase pursuant to Section 2 be increased pursuant to Section 11 by an
amount in excess of one-ninth of such amount of Notes without the written
consent of such Initial Purchaser. If, on the Closing Date, any Initial
Purchaser or Initial Purchasers shall fail or refuse to purchase Notes which
it or they have agreed to purchase hereunder on such date and the aggregate
amount of Notes with respect to which such default occurs is more than
one-tenth of the aggregate 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 Initial
Purchaser or 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 Offering
Memorandum or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Initial
Purchaser from liability in respect of any default of such Initial Purchaser
under this Agreement.
If this Agreement shall be terminated by the Initial Purchasers, 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 the
Initial Purchasers), the Company will reimburse the Initial Purchasers or such
Initial Purchasers who have so terminated this Agreement for all out-of-pocket
expenses (including the fees and disbursements of their counsel) reasonably
incurred by such Initial Purchaser in connection with this Agreement or the
offering contemplated hereunder.
12. 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 Initial Purchaser:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 10036
Attention: Xxx Xxxx
22
(b) If to the Company:
Viatel, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Senior Vice President,
Business Affairs and General Counsel
with a copy to:
Xxxxxx Xxxx & Xxxxxx LLP
000 Xxxx Xxx.
New York, NY 10178
Attention: Xxxxx X. Xxxxxxxx
13. 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.
14. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
15. 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 Initial Purchasers.
Very truly yours,
VIATEL, INC.
By: /s/ XXXXX X. XXXX
-----------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President, Finance
Agreed, March 12, 1999
XXXXXX XXXXXXX & CO. INCORPORATED
ING BARING XXXXXX XXXX LLC
By: XXXXXX XXXXXXX & CO. INCORPORATED
In its individual capacity and as representative
of the other Initial Purchasers
By: /s/ XXXXX X. XXXXX
-----------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
SCHEDULE I
-----------------------------------------------------------------------------------------------------------------
Principal Amount of Principal Amount of
11.5% Senior Dollar Notes 11.5% Senior Euro Notes To
Initial Purchasers To Be Purchased Be Purchased
------------------ ------------------------- --------------------------
Xxxxxx Xxxxxxx & Co. Incorporated ...... $175,000,000.00 Euro 133,335,000.00
ING Baring Xxxxxx Xxxx LLC ............. $ 25,000,000.00 Euro 16,665,000.00
Total ................................ $200,000,000.00 Euro 150,000,000.00
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 Spain Limited England and Wales
Viatel (I) Limited England and Wales
Viatel Staines Limited 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
Viaphone GmbH Germany
Viatel AG Switzerland
Viaphone AG Switzerland
Viatel Global Communications B.V. Netherlands
Viafoperations Communications B.V. Netherlands
Viacol Ltd. 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 Development Company Delaware
Viatel Finance Company L.L.C. Delaware
Viatel Global Communications, Ltd. Delaware
Viatel New Jersey, Inc. Delaware
EXHIBIT C
DRAFT OFFERING MEMORANDUM
EXHIBIT D
Form of Opinion of
Xxxxxx Xxxx & Xxxxxx LLP
Pursuant to Section 5(c) 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 Purchase Agreement has been duly authorized, executed
and delivered by the Company;
(C) the Pledge Agreement has been duly authorized, executed
and delivered by the Company, and assuming due authorization, execution
and delivery by the Trustee, the Pledge Agreement will constitute a
valid and legally binding obligation 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) upon the delivery to the Trustee of the certificates or
instruments, if any, representing the U.S. Pledged Securities and the
Euro Pledged Securities, the pledge of and grant of a security interest
in the U.S. Pledged Securities and the Euro Pledged Securities for the
benefit of the Trustee and the holders of the Senior Dollar Notes and
the Senior Euro Notes will constitute a first priority security
interest in the U.S. Pledged Securities and the Euro Pledged
Securities, enforceable as against all creditors of the Company (and
any person purporting to purchase any of the U.S. Pledged Securities or
Euro Pledged Securities from the Company);
D-2
(E) 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 respective 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 respective Indenture, the Registration Rights Agreement and the
Pledge Agreement;
(F) each of the Indentures 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 Indentures, 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;
(G) 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 Indentures 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
D-3
governmental body or agency is required for the performance by the
Company of its obligations under the Transaction Documents;
(H) 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;
(I) 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;
(J) 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;
(K) 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; and
(L) based upon the representations, warranties, and agreements
of the Company in the Purchase Agreement and of the Initial 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
Initial Purchasers under the Purchase Agreement or in connection with
the initial resale of such Notes by the Initial Purchasers solely in
accordance with Section 7 of the Purchase 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.
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, 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 March 12, 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 F
Form of U.S. Regulatory Counsel Opinion
Pursuant to Section 5(e) of the Purchase Agreement, Xxxxxxxx & Forester
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
F-3
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.
