[Draft--11/4/98]
THIS NOTE DEPOSIT AGREEMENT is made as of this 9th day of
November, 1998 by and between RSL Communications PLC, a United Kingdom
corporation (the "Issuer") and The Chase Manhattan Bank, a New York banking
corporation, as book-entry depositary (the "Book-Entry Depositary").
ARTICLE I
DEFINITIONS AND OTHER GENERAL PROVISIONS
SECTION 1.1 Definitions. The following terms, as used herein,
have the following meanings:
"144A Depositary Interest" means the certificateless
book-entry interest representing a 100% beneficial interest in the principal of,
premium, if any, and interest on the underlying 144A Global Note, and issued to
the Depositary by the Book-Entry Depositary.
"144A Global Note" means one or more global bearer bonds
issued by the Issuer to the Book-Entry Depositary and bearing the Restricted
Legend representing the total aggregate principal amount of the Notes sold in
reliance on Rule 144A under the Securities Act.
"Asset Disposition" has the meaning set forth in
the Indenture.
"Board Resolution" means a duly adopted resolution of the
Board of Directors of the Issuer in full force and effect on the date of
certification, certified by any Director, Secretary or Assistant Secretary of
the Issuer.
"Book-Entry Depositary" means The Chase Manhattan Bank or, in
the event that The Chase Manhattan Bank is succeeded as Book-Entry Depositary
hereunder, the Person designated as its successor pursuant to Section 3.8
hereof.
"Book-Entry Notes" means an indirect certificateless
beneficial interest in a Global Note held through a corresponding Depositary
Interest.
"Book-Entry Register" has the meaning set forth in
Section 2.3 hereof.
"Change of Control" has the meaning set forth in
the Indenture.
"Corporate Trust Office" means the office of the Book-Entry
Depositary in the Borough of Manhattan, The City of New York, from which at any
particular time its corporate trust business shall be principally administered,
which at
the date hereof is located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Global Trust Services.
"Depositary" means DTC, or any successor, as the holder of the
Depositary Interests as recorded on the Book-Entry Register.
"Depositary Interests" means each of the 144A
Depositary Interests and the Regulation S Depositary
Interests.
"DTC" means The Depository Trust Company and its
nominees.
"Event of Default" shall have the meaning set
forth in the Indenture.
"Exchange Act" means the United States Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated thereunder.
"Global Notes" means each of the 144A Global Note and the
Regulation S Global Note.
"Holdings" means RSL Communications, Ltd., guarantor of the
Notes pursuant to the Indenture until a successor replaces it pursuant to the
applicable provisions of the Indenture and, thereafter, means such successor.
"Indenture" means the indenture dated as of November 9, 1998
among the Issuer, Holdings and the Trustee relating to the Notes, as originally
executed or as it may be supplemented, modified or amended from time to time.
"Issuer" means RSL Communications PLC until a successor
replaces it pursuant to the applicable provisions of the Indenture and,
thereafter, means such successor.
"Issuer Order" or "Issuer Request" means a written order or
request signed in the name of the Issuer by two Officers thereof.
"Letter of Representations" means the Letter of
Representations to DTC dated as of November [ ], 1998 from the Issuer, the
Trustee and the Book-Entry Depositary.
"Notes" means the $100,000,000 aggregate principal amount at
maturity of the Issuer's 12% Senior Notes due 2008 issued under the Indenture.
"Offer to Purchase" has the meaning set forth in
the Indenture.
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"Officer" means, with respect to the Issuer, (i) the Chairman
of the Board, the Chief Executive Officer and other Directors and (ii) the
Treasurer or any Assistant Treasurer, or the Secretary or any Assistant
Secretary.
"Officers' Certificate" means a certificate signed by two
Officers, at least one of which must be an Officer listed in clause (i) of the
definition thereof.
"Opinion of Counsel" means a written opinion from legal
counsel, who may be an employee of or counsel to the Issuer, and who shall be
reasonably acceptable to the Book-Entry Depositary.
"Paying Agent" means The Chase Manhattan Bank and any
successor paying agent hereunder.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Registered Notes" means certificated Notes registered in the
name of the holder thereof issued pursuant to the Indenture in substantially the
form set forth in Section 2.02 of the Indenture.
"Regulation S Depositary Interest" means the certificateless
book-entry interest representing a 100% beneficial interest in the principal of,
premium, if any, and interest on the underlying Regulation S Global Note, and
issued to the Depositary by the Book-Entry Depositary.
"Regulation S Global Note" means one or more global bearer
bonds issued by the Issuer to the Book-Entry Depositary and bearing the
Regulation S Legend representing the total aggregate principal amount of the
Notes sold in reliance on Regulation S under the Securities Act.
"Regulation S Legend" has the meaning set forth in
the Indenture.
"Responsible Officer", with respect to the Book-Entry
Depositary, means any Vice President, Assistant Vice President, the Secretary,
any Assistant Secretary, the Treasurer, any Assistant Treasurer, or any Trust
Officer or any other officer of the Book-Entry Depositary customarily performing
functions similar to those performed by any of the above-designated officers and
also means, with respect to a particular corporate trust or agency matter, any
other officer to whom such matter is referred because of his or her knowledge
and familiarity with the particular subject.
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"Restricted Legend" has the meaning set forth in
the Indenture.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Trustee" means The Chase Manhattan Bank acting as trustee
under the Indenture or, in the event The Chase Manhattan Bank is succeeded as
trustee under the Indenture, such Person who shall be appointed to succeed as
trustee pursuant to the applicable provisions of the Indenture.
SECTION 1.2 Rules of Construction. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) "or" is not exclusive;
(3) "including" means including without limitation;
(4) words in the singular include the plural and words in the
plural include the singular; and
(5) references herein to holders of Depositary Interests shall
mean references to the Depositary.
ARTICLE II
GLOBAL NOTES, DEPOSITARY INTERESTS
SECTION 2.1 Deposit of the Global Notes. The Book-Entry
Depositary hereby accepts custody of the Global Notes from the Trustee and shall
act as Book-Entry Depositary in accordance with the terms of this Agreement. The
Book-Entry Depositary shall hold each such Global Note at its Corporate Trust
Office or at such place or places as it shall determine with the prior written
consent of the Issuer and shall issue the Depositary Interests in accordance
with the Letter of Representations. In the event that the Issuer shall issue and
execute, and the Trustee, upon the order of the Issuer, shall authenticate
additional Global Notes, the Book-Entry Depositary shall hold each such Global
Note at its Corporate Trust Office or at such place or places as it shall
determine with the prior written consent of the Issuer and shall issue the
Depositary Interests in such Global Notes to the Depositary in accordance with
the Letter of Representations.
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SECTION 2.2 Book-Entry System. (a) Upon acceptance by DTC of
the Depositary Interests for entry into its book-entry settlement system in
accordance with the terms of the Letter of Representations, Book-Entry Notes
shall be issued by DTC and traded through DTC's book-entry system, and ownership
of such Book-Entry Notes shall be shown in, and the transfer of such ownership
shall be effected only through, a book-entry system maintained by (i) DTC or its
successors or (ii) Participants. DTC shall treat the holders of Book-Entry Notes
and their successors as the absolute owners of the Depositary Interests for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Issuer, the Trustee, the Book-Entry Depositary or any agent of the Issuer,
the Trustee or the Book-Entry Depositary from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or
impair, as between the Book-Entry Depositary and the Depositary and its
Participants, the operation of customary practices of such Depositary governing
the exercise of the rights of an owner of a beneficial interest in any Global
Note or Depositary Interest.
(b) The Depositary Interests shall be issuable only to DTC, or
successors of DTC or their respective nominees. Except as provided in Section
2.4 hereof and Section 3.05(d) of the Indenture, no owner of beneficial
interests in such Depositary Interests shall be entitled to receive a Registered
Note on account of such beneficial interest, and such beneficial owner's
interest therein shall be shown only in accordance with the procedures of DTC as
set forth in the Letter of Representations.
SECTION 2.3 Registration of Transfer of Depositary Interests. (a) The
Issuer appoints the Book-Entry Depositary as its agent to maintain at the
Book-Entry Depositary's Corporate Trust Office a register (the "Book-Entry
Register") in which the Book-Entry Depositary shall (i) record the right of the
Depositary to receive payment of principal of, premium, if any, and interest on
the Global Notes and (ii) record the registration and transfer of the Depositary
Interests. No Depositary Interest can be transferred unless such transfer is
recorded on the Book-Entry Register.
(b) With respect to any Global Note, clause (a) of this
Section 2.3 shall not (i) impose an obligation on the Book-Entry Depositary to
record the interests in or transfers of Book-Entry Notes held by institutions
that have accounts with DTC or its successors or Persons that may hold
Book-Entry Notes through such institutions and (ii) restrict transfers of such
Book-Entry Notes held by such institutions or Persons. The Book-Entry Depositary
shall treat the
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Depositary or its nominee as the absolute owner of the Depositary Interests for
all purposes whatsoever and shall not be bound or affected by any notice to the
contrary, other than an order of a court having jurisdiction over the Book-Entry
Depositary.
SECTION 2.4 Transfer of Global Notes and Depositary Interests;
Termination. The Book-Entry Depositary shall hold the Global Notes in custody
for the benefit of the Depositary. The Book-Entry Depositary shall not transfer
or lend any Global Note or any interest therein except that (i) the Book-Entry
Depositary shall deliver Global Notes to the Trustee if required in accordance
with Section 3.05(e) of the Indenture so that the Trustee may make such
notations on the Global Notes as may be required to evidence transfers and
exchanges of Book-Entry Notes, (ii) a Global Note may be exchanged in whole or
in part pursuant to Section 3.05(d) of the Indenture, (iii) a Global Note may be
exchanged or replaced pursuant to Sections 3.04 and 3.06 of the Indenture, (iv)
any Global Note may be delivered to the Trustee for cancellation pursuant to
Section 3.09 of the Indenture and (v) the Global Notes may be transferred to a
successor Book-Entry Depositary with the prior written consent of the Issuer.
Notwithstanding the foregoing, the Depositary may not under any circumstances
request the Book-Entry Depositary to surrender or deliver the Global Notes.
If the Book-Entry Depositary notifies the Issuer and the
Trustee in writing under Section 3.8 hereof that it is unwilling or unable to
continue as Book-Entry Depositary and no successor Book-Entry Depositary has
been appointed by the Issuer within 90 days of such notification, then the
Book-Entry Depositary shall promptly notify the Trustee and request the Trustee
to issue Registered Notes in such names and denominations as the Depositary
shall specify in writing in accordance with Section 3.05 of the Indenture and
the Book-Entry Depositary agrees that in such event it shall promptly surrender
the Global Notes held by it to the Trustee in connection with such exchange and
that such Global Notes shall be canceled upon issuance of such Registered Notes.
If DTC notifies the Issuer or the Book-Entry Depositary in
writing that it or its nominee is unwilling or unable to continue as Depositary
with respect to any or all of the Depositary Interests or if at any time it or
its nominee is unable to or ceases to be a clearing agency under the Exchange
Act and, in either case, a successor Depositary registered as a clearing agency
under the Exchange Act is not appointed by the Issuer within 90 days, then the
Book-Entry Depositary shall promptly notify the Trustee and
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request the Trustee to issue Registered Notes with respect to the Global Notes
in such names and denominations as the Depositary shall specify in writing in
accordance with Section 3.05 of the Indenture and the Book-Entry Depositary
agrees that in such event it shall promptly surrender the applicable Global
Notes held by it to the Trustee in connection with such exchange and that such
Global Notes shall be canceled upon issuance of such Registered Notes.
If at any time the Issuer, subject to and in compliance with
Section 3.05(d) of the Indenture, determines that the Global Notes should be
exchanged, in whole but not in part, for Registered Notes, then the Issuer shall
promptly notify the Trustee and the Book-Entry Depositary and request the
Trustee to issue Registered Notes with respect to the Global Notes in such names
and denominations as the Depositary shall specify in writing in accordance with
Section 3.05 of the Indenture and the Book-Entry Depositary agrees that in such
event it shall promptly surrender the applicable Global Notes held by it to the
Trustee in connection with such exchange and that such Global Notes shall be
canceled upon issuance of such Registered Notes.
Upon the issuance of Registered Notes in exchange for Global
Notes representing the entire principal amount of Notes, this Agreement will
terminate.
SECTION 2.5 Cancellation. If any Global Note is surrendered
for payment, or for redemption or purchase of Notes evidenced thereby or in
exchange for Registered Notes, then such Global Note shall, if surrendered to
any Person other than the Trustee notwithstanding the first paragraph of Section
2.4 hereof, be delivered to the Trustee for cancellation.
SECTION 2.6 Payments in Respect of the Global Notes. (a)
Except for payments made pursuant to an Offer to Purchase with respect to any
Asset Disposition or Change of Control, whenever the Book-Entry Depositary shall
receive from the Trustee (or other paying agent under the Indenture) any payment
of the principal of, premium, if any, and interest on the Global Notes, such
payments shall be distributed promptly to the Depositary on the payment date for
the Global Notes.
(b) Whenever the Book-Entry Depositary shall receive from the
Trustee (or other paying agent under the Indenture) any payment of the principal
of, premium, if any, and interest on the Global Notes pursuant to an Offer to
Purchase by the Issuer with respect to any Asset Disposition or Change of
Control, the Book-Entry Depositary shall
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distribute such payment to the Depositary for the accounts of holders of
Book-Entry Notes who elected to have Book-Entry Notes repurchased pursuant to
such Offer to Purchase.
(c) So long as DTC or its nominee is the Depositary, payments
pursuant to Section 2.6(a) and 2.6(b) hereof with respect to the Global Notes
shall be made in accordance with the Letter of Representations. In the event
that DTC or its nominee shall cease to be the Depositary, such payments shall be
made according to procedures agreed upon between the Book-Entry Depositary and
the successor Depositary, which shall be reasonably satisfactory to the Issuer.
(d) The Book-Entry Depositary shall forward to the Issuer or
its agents at the Issuer's cost and expense such information from its records as
the Issuer may reasonably request to enable the Issuer or its agents to file
necessary reports with governmental agencies, and the Book-Entry Depositary, the
Issuer or its agents may (but shall not be required to) file any such reports
necessary to obtain benefits under any applicable tax treaties for the
Depositary or the holders of Book-Entry Notes.
SECTION 2.7 Changes in Principal Amount of the Global Notes.
(a) In the event that the Issuer exercises any right of redemption in respect of
any Notes constituting a part of the Global Notes or purchases any Notes
constituting a part of the Global Notes pursuant to an Offer to Purchase under
Section 10.13 or 10.17 of the Indenture, the Book-Entry Depositary shall,
promptly upon receipt of the redemption price or purchase price, deliver such
Global Notes to the Trustee (i) and request the Trustee to endorse on such
Global Note to reflect the reduction in the principal amount of such Global Note
as a result of such redemption or purchase or (ii) in exchange for a Global Note
with a principal amount that represents only the portion of such Global Note not
so redeemed or purchased. The redemption price or purchase price in connection
with the redemption of a portion of such Global Note shall be equal to the
amount received by the Book-Entry Depositary in respect of the aggregate
principal amount at maturity of the Notes so redeemed or repurchased.
(b) Pursuant to Section 3.05 of the Indenture, upon written
notice from the Trustee to the Book-Entry Depositary of an increase or decrease
in the aggregate principal amount of any Global Note, the Book-Entry Depositary
shall enter or cause to be entered in the Book-Entry Register a corresponding
increase or decrease in the aggregate principal amount of the Depositary
Interest corresponding to such Global Note.
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SECTION 2.8 Record Date. Whenever any payment is to be made in
respect of the Global Notes or the Book-Entry Depositary shall receive written
notice of any action to be taken by the Depositary, or whenever the Book-Entry
Depositary otherwise deems it appropriate in respect of any other matter, the
Book-Entry Depositary shall fix a record date for the determination of the
holders of the Depositary Interests who shall be entitled to receive payment in
respect of the Depositary Interests or to take any such action or to act in
respect of any such matter and such record date shall be unless otherwise
impracticable the record date as would be set under the Indenture if such
securities were Registered Notes. Subject to the provisions of this Agreement,
only the Depositary which is registered on the Book-Entry Register at the close
of business on such record date shall be entitled to receive any such payment,
to give instructions as to such action or to act in respect of any such matter.
The Depositary shall be entitled to rely on such record date
as the date of determination for purposes of further distribution of the
payments disbursed, and so long as DTC or its nominee is the Depositary, such
record date applicable to the Depositary shall comply with the requirements of
the Letter of Representations.
SECTION 2.9 Action in Respect of the Depositary Interests. (a)
As soon as practicable after receipt by the Book-Entry Depositary of written
notice from the Issuer of any solicitation of consents or request for a waiver
or other action by the Depositary under this Agreement or the Indenture, the
Book-Entry Depositary shall mail to the Depositary a notice containing (i) such
information as is contained in such notice, (ii) a statement that the holders of
Depositary Interests at the close of business on a specified record date
(established in accordance with Section 2.8 hereof) will be entitled, subject to
the provisions of or governing the Depositary Interests, to instruct the
Book-Entry Depositary as to the consent, waiver or other action, if any,
pertaining to the Global Notes and (iii) a statement as to the manner in which
such instructions may be given. Upon the written request of the Depositary
received on or before the date established by the Book-Entry Depositary for such
purpose, the Book-Entry Depositary shall endeavor insofar as practicable and
permitted under the provisions of or governing the Depositary Interests to take
such action regarding the requested consent, waiver or other action in respect
of the Global Notes in accordance with any instructions set forth in such
request. The Book-Entry Depositary shall not itself exercise any discretion in
the granting of consents or waivers or the taking of any other action in respect
of the
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Global Notes and, as holder of the Global Notes, the Book-Entry Depositary
promptly shall cause such consents or waivers to be granted and such action to
be taken with respect to the Global Notes as the Depositary had given or had
taken.
(b) As soon as practicable after receipt by the Book-Entry
Depositary of an Offer to Purchase with respect to the Global Notes, the
Book-Entry Depositary shall mail to the Depositary a notice containing (i) such
information as is contained in such notice, (ii) a statement that the holders of
Depositary Interests at the close of business on a specified record date
(established in accordance with Section 2.8 hereof) will be entitled, subject to
the provisions of or governing the Depositary Interests, to elect to have all or
any portion of their interest in the Global Notes repurchased in accordance with
such Offer to Purchase and (iii) such documentation provided by the Issuer as is
necessary for the Depositary to elect to have all or any portion of the
Depositary Interests repurchased pursuant to such Offer to Purchase. So long as
DTC or its nominee is acting as Depositary, such notice shall also comply with
the Letter of Representations. Upon receipt of elections relating to such Offer
to Purchase from the Depositary received on or before the date established by
the Issuer for such purpose, the Book-Entry Depositary shall endeavor insofar as
practicable and permitted under the provisions of or governing the Depositary
Interests and the Global Notes to tender the Global Notes or portions thereof
requested to be tendered by the Depositary for repurchase in accordance with
such Offer to Purchase. The Book-Entry Depositary shall not itself exercise any
discretion in the tender of any Global Notes pursuant to an Offer to Purchase.
(c) As soon as practicable after receipt by the Book-Entry
Depositary of any notice of redemption with respect to the Global Notes pursuant
to Section 11.01 of the Indenture, the Book-Entry Depositary shall mail to the
Depositary a notice containing (i) such information as is contained in such
notice and (ii) a statement that Notes called for redemption must be surrendered
to the Paying Agent in order to collect the Redemption Price. So long as DTC or
its nominee is acting as Depositary, such notice shall also comply with the
Letter of Representations.
(d) The Depositary may direct in writing the time, method and
place of conducting any proceeding for any remedy available to the Book-Entry
Depositary with respect to the Global Notes or exercising any power conferred on
the Book-Entry Depositary. However, the Book-Entry Depositary may refuse to
follow any direction that conflicts with law, the Indenture or this Agreement,
that may involve the Book-
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Entry Depositary in personal liability, or that the Book-Entry Depositary
determines in good faith may be unduly prejudicial to the rights of the holders
of Book-Entry Notes not joining in the giving of such direction and may take any
other action it deems proper that is not inconsistent with any directions
received from the Depositary pursuant to this Section 2.9(d).
SECTION 2.10 Changes Affecting the Global Notes. Upon any
reclassification of the Global Notes, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Issuer
or to which the Issuer is a party, any securities that shall be received by the
Book-Entry Depositary in exchange for or in respect of a Global Note shall be
treated as a new Global Note under this Agreement and any corresponding
Depositary Interests shall thenceforth represent such new securities so
received; provided, however, that any security issued in exchange for or in
respect of a Global Note under such circumstances shall not be deemed to be a
new security if the Issuer delivers to the Book-Entry Depositary an Opinion of
Counsel, to the effect that the recapitalization, reorganization, merger or
consolidation or sale of assets, as appropriate, did not result in the creation
of a security materially different from that represented by such Global Note.
SECTION 2.11 Surrender of the Global Notes. In
the event of the redemption, payment or purchase in full of all the Notes
represented by any of the Global Notes, then the applicable Depositary Interest
and the applicable Global Note shall become void and the Book-Entry Depositary
shall surrender such Global Note to the Trustee for cancellation. In the event
of a partial redemption of the Notes represented by a Global Note, the
Book-Entry Depositary shall comply with the requirements of Section 2.7 hereof.
SECTION 2.12 Reports. The Book-Entry Depositary shall promptly
send to the Depositary any notices, reports and other communications received
from the Issuer that are received by the Book-Entry Depositary as holder of the
Global Notes.
ARTICLE III
THE BOOK-ENTRY DEPOSITARY
SECTION 3.1 Certain Duties and Responsibilities. (a) The
Book-Entry Depositary undertakes to perform such duties and only such duties as
are specifically set forth in this Agreement.
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(b) No provision of this Agreement shall be construed to
relieve the Book-Entry Depositary from liability for its own negligent action,
its own negligent failure to act, or its own bad faith or willful misconduct,
except that:
(1) the duties and obligations of the Book-Entry Depositary
with respect to the Global Notes and the Depositary Interests shall be
determined solely by the express provisions of this Agreement and
neither the Book-Entry Depositary, nor its officers, directors,
employees and agents shall be liable except for the performance of such
duties and obligations as are specifically set forth in this Agreement,
and no implied covenants or obligations shall be read into this
Agreement against the Book-Entry Depositary; and
(2) in the absence of bad faith on its part, the Book-Entry
Depositary may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Book-Entry Depositary and
conforming to the requirements of this Agreement, but in the case of
any such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Book-Entry Depositary, the
Book-Entry Depositary shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Agreement.
(c) The Book-Entry Depositary shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the Book-Entry
Depositary, unless it shall be proved that the Book-Entry Depositary was grossly
negligent in ascertaining the pertinent facts.
(d) The Book-Entry Depositary shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in accordance
with the written direction of the Depositary pursuant to Section 2.9 hereof
relating to the time, method and place of conducting any proceeding for any
remedy available to the Book-Entry Depositary, or exercising any power conferred
upon the Book-Entry Depositary, under this Agreement.
(e) No provision of this Agreement will require the Book-Entry
Depositary to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate
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indemnity against such risk or liability is not reasonably assured to it.
(f) Whether or not therein expressly so provided, every
provision of this Agreement relating to the conduct or affecting the liability
of or affording protection to the Book-Entry Depositary shall be subject to the
provisions of this Section.
(g) The Book-Entry Depositary owes no fiduciary duties to any
person by virtue of this Agreement except as expressly set forth herein.
SECTION 3.2 Notice of Default. The Book-Entry Depositary shall
(x) within 90 days after the occurrence of any Event of Default in respect of
the Global Notes of which a Responsible Officer of the Book-Entry Depositary
assigned to its Global Trust Services department has actual knowledge or (y)
promptly after being notified of an Event of Default by the Trustee, transmit by
mail to the Depositary in the manner provided in Section 4.2, notice of such
Event of Default, unless such Event of Default shall have been cured or waived.
SECTION 3.3 Certain Rights of Book-Entry Depositary. Subject
to the provisions of Section 3.1 hereof:
(a) the Book-Entry Depositary may conclusively rely and shall
be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, security, or other paper or
document delivered to it in accordance with the terms of this Agreement and
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers' Certificate,
Issuer Order or Issuer Request, and any resolution of the Board of Directors of
the Issuer may be sufficiently evidenced by a Board Resolution;
(c) the Book-Entry Depositary may consult with counsel and the
advice of such counsel confirmed in writing or any Opinion of Counsel shall be
full and complete authorization and protection with respect to any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon in
accordance with such advice or Opinion of Counsel;
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(d) the Book-Entry Depositary shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, appraisal, bond, debenture, note, coupon, security or other paper or
document, but the Book-Entry Depositary, may (but shall have no obligation to)
make reasonable further inquiry or investigation into such facts or matters
related to the issuance of the Global Notes and, if the Book-Entry Depositary
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Issuer, at the
Issuer's expense, at reasonable times during normal business hours, personally
or by agent or attorney;
(e) the Book-Entry Depositary may execute any of the powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Book-Entry Depositary shall not be responsible for
any misconduct or negligence on the part of any such agent or attorney appointed
with due care;
(f) the Book-Entry Depositary shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement at the
request, order or direction of the Depositary pursuant to this Agreement, unless
the Depositary shall have offered or caused to be offered to the Book-Entry
Depositary security or indemnity reasonably satisfactory to it against the
costs, expenses and liabilities that might be incurred by it in compliance with
such request or direction, provided that such request, order or direction shall
not expose the Book-Entry Depositary to personal liability;
(g) the Book-Entry Depositary shall not be liable for any
action taken or omitted by it in good faith and reasonably believed by it to be
authorized or within the discretion, rights or powers conferred upon it by this
Agreement; and
(h) whenever in the administration of its duties under this
Agreement the Book-Entry Depositary shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Book-Entry Depositary, be deemed to be conclusively proved
and established by an Officers' Certificate delivered to the Book-Entry
Depositary, and such certificate, in the absence of negligence or bad faith on
the part of the Book-Entry Depositary, shall be full warrant to the Book-Entry
14
Depositary for any action taken, suffered or omitted by it under the provisions
of the Agreement, upon the faith thereof.
SECTION 3.4 Not Responsible for Recitals or Issuance of Notes.
The recitals contained in the Indenture and in the Notes, except the Trustee's
certificates of authentication, shall be taken as the statements of the Issuer,
and the Book-Entry Depositary assumes no responsibility for their correctness.
The Book-Entry Depositary makes no representation as to (i) the validity or
sufficiency of the Indenture or of the Notes, (ii) the sufficiency of this
Agreement or (iii) the validity, with respect to the Issuer, of this Agreement.
The Book-Entry Depositary shall not be accountable for the use or application by
the Issuer of the proceeds with respect to the Notes.
SECTION 3.5 Money Held in Trust. Money held by the Book-Entry
Depositary in trust hereunder need not be segregated from other funds held by
the Book-Entry Depositary, except to the extent required by law. The Book-Entry
Depositary shall be under no obligation to invest or pay interest on any money
received by it hereunder, except as otherwise agreed in writing with the Issuer.
Any interest accrued on funds deposited with the Book-Entry Depositary under
this Agreement shall be paid to the Issuer from time to time and the Depositary
shall have no claim to any such interest.
SECTION 3.6 Compensation and Reimbursement. The Issuer and
Holdings, jointly and severally agree:
(a) to pay to the Book-Entry Depositary from time to time
reasonable compensation agreed in writing for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law with
regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Book-Entry Depositary upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Book-Entry
Depositary in accordance with any provision of this Agreement (including the
reasonable compensation, expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence, bad faith or willful misconduct; and
(c) to indemnify the Book-Entry Depositary and its directors,
officers, agents and employees for, and to hold it harmless against, any loss,
liability or expense
15
incurred without negligence, bad faith on its part, arising out of or in
connection with the acceptance or administration of this Agreement and its
duties hereunder, including the costs and expenses of defending itself against
or investigating any claim of liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The obligations of the Issuer under this Section to compensate
and indemnify the Book-Entry Depositary and to pay or reimburse the Book-Entry
Depositary for reasonable expenses, disbursements and advances shall survive the
satisfaction and discharge of this Agreement or the earlier of the resignation
or the removal of the Book-Entry Depositary. Such obligations shall be a senior
claim to that of the Notes upon all property and funds held or collected by the
Book-Entry Depositary as such, except funds held in trust for the benefit of the
holders of the Notes.
SECTION 3.7 Book-Entry Depositary Required: Eligibility. At
all times when there is a Book-Entry Depositary hereunder, such Book-Entry
Depositary shall be a corporation organized and doing business under the laws of
the United States of America, any State thereof or the District of Columbia,
having, together with its parent, a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by federal, state or District
of Columbia authority, willing to act on reasonable terms. Such corporation
shall have its principal place of business in the Borough of Manhattan, The City
of New York, if there be such a corporation in such location willing to act upon
reasonable and customary terms and conditions. If such corporation, or its
parent, publishes reports of condition at least annually, pursuant to law or to
the requirements of the aforesaid supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. The Book-Entry Depositary
shall have executed a letter of representations to DTC acceptable in form and
substance to DTC and the Issuer with respect to the Depositary Interests. The
Book-Entry Depositary hereunder shall at all times be the Trustee under the
Indenture, subject to receipt by the Issuer of an Opinion of Counsel that the
same Person is precluded by law from acting in such capacities. If at any time
the Book-Entry Depositary shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
16
SECTION 3.8 Resignation and Removal, Appointment of Successor.
(a) No resignation or removal of the Book-Entry Depositary and no appointment
of a successor Book-Entry Depositary pursuant to this Article shall become
effective until (i) the approval in writing of a successor Book-Entry Depositary
by the Issuer and the acceptance of the appointment by such successor Book-Entry
Depositary in accordance with the applicable requirements of Section 3.9 hereof
or (ii) the issuance of Registered Notes in accordance with Section 2.4 hereof
and the Indenture.
(b) The Book-Entry Depositary may resign all of its rights and
duties with respect to the Global Notes and the Depositary Interests by giving
written notice thereof to the Issuer and the Depositary in accordance with
Sections 4.1 and 4.2 hereof. The Book-Entry Depositary may be removed at any
time upon 30 days' notice by the filing with it of an instrument in writing
signed on behalf of the Issuer and specifying such removal and the date when it
is intended to become effective. If the instrument of acceptance by a successor
Book-Entry Depositary or the approval by the Issuer required by Section 3.9
hereof shall not have been delivered to the Book-Entry Depositary within 30 days
after the giving of such notice of resignation, the resigning Book-Entry
Depositary may petition any court of competent jurisdiction for the appointment
of a successor Book-Entry Depositary.
(c) If at any time:
(1) the Book-Entry Depositary shall cease to be eligible under
Section 3.7 hereof or shall cease to be eligible as Trustee under the
Indenture, and shall fail to resign after written request therefor by
the Issuer or the Depositary, or
(2) the Book-Entry Depositary shall become incapable of acting
with respect to the Global Notes and the Depositary Interests, or shall
be adjudged bankrupt or insolvent, or a receiver or liquidator of the
Book-Entry Depositary or its property shall be appointed or any public
officer shall take charge or control of the Book-Entry Depositary or
its property or affairs for the purpose of rehabilitation, conservation
or liquidation,
then, in any such case, (i) the Issuer, by Board Resolution, may remove the
Book-Entry Depositary and appoint a successor Book-Entry Depositary and (ii) if
the Issuer does not remove the Book-Entry Depositary and appoint a successor
pursuant to clause (i), the Depositary, upon the direction of holders of at
least a majority of the total aggregate principal
17
amount of the Book-Entry Notes outstanding, may petition any court of competent
jurisdiction for the removal of the Book-Entry Depositary with respect to the
Global Notes and the Depositary Interests and the appointment of a successor
Book-Entry Depositary or Book-Entry Depositaries unless Registered Notes have
been issued in accordance with the Indenture. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Book-Entry
Depositary with respect to the Global Notes and the Depositary Interests and
appoint a successor Book-Entry Depositary for the Global Notes and the
Depositary Interests.
(d) If the Book-Entry Depositary shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of
Book-Entry Depositary for any cause, the Issuer, by Board Resolution, shall
promptly appoint a successor Book-Entry Depositary (other than the Issuer) and
shall comply with the applicable requirements of Section 3.9 hereof. If no
successor Book-Entry Depositary with respect to the Notes shall have been so
appointed by the Issuer and accepted appointment in the manner required by
Section 3.9, the Depositary, upon direction of holders of at least a majority of
the total aggregate principal amount of Book-Entry Notes outstanding, may
petition any court of competent jurisdiction for the appointment of a successor
Book-Entry Depositary unless Registered Notes have been issued in accordance
with the Indenture and Section 2.4 hereof.
(e) The Issuer shall give, or shall cause such successor
Book-Entry Depositary to give, notice of each resignation and each removal of a
Book-Entry Depositary and each appointment of a successor Book-Entry Depositary
to the Depositary in accordance with Section 4.2 hereof. Each notice shall
include the name of the successor Book-Entry Depositary and the address of its
Corporate Trust Office.
(f) If a Book-Entry Depositary hereunder shall resign, it
shall not be relieved of any responsibility for its actions or omissions
hereunder solely by virtue of such resignation.
SECTION 3.9 Acceptance of Appointment by Successor. (a) In
case of the appointment hereunder of a successor Book-Entry Depositary, every
such successor Book-Entry Depositary so appointed shall execute, acknowledge
and deliver to the Issuer and to the retiring Book-Entry Depositary an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Book-Entry Depositary shall become effective and such successor
Book-Entry Depositary, without any further act, deed or conveyance, shall become
vested with all the rights, powers,
18
agencies and duties of the retiring Book-Entry Depositary, with like effect as
if originally named as Book-Entry Depositary hereunder; but, on the request of
the Issuer or the successor Book-Entry Depositary, such retiring Book-Entry
Depositary shall, upon payment of all amounts due and payable to it pursuant to
Section 3.6 hereof, execute and deliver an instrument transferring to such
successor Book-Entry Depositary all the rights and powers of the retiring
Book-Entry Depositary and shall duly assign, transfer and deliver to such
successor Book-Entry Depositary all property and money held by such retiring
Book-Entry Depositary hereunder. Any retiring Book-Entry Depositary shall,
nonetheless, retain a prior claim upon all property or funds held or collected
by such Book-Entry Depositary to secure any amounts then due it pursuant to
Section 3.6 hereof. The Book-Entry Depositary will not be liable for any acts or
omissions of any successor Book-Entry Depositary appointed pursuant to Section
3.8 hereof.
(b) Upon request of any such successor Book-Entry Depositary,
the Issuer shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Book-Entry Depositary all such
rights, powers and agencies referred to in paragraph (a) of this Section.
(c) No successor Book-Entry Depositary shall accept its
appointment unless at the time of such acceptance such successor Book-Entry
Depositary shall be eligible to serve as such under this Article.
(d) Upon acceptance of appointment by any successor Book-Entry
Depositary as provided in this Section, the Issuer shall give notice thereof to
the Depositary in accordance with Section 4.02 hereof. If the acceptance of
appointment is substantially contemporaneous with the resignation of the
Book-Entry Depositary, then the notice called for by the preceding sentence may
be combined with the notice called for by Section 3.8 hereof. If the Issuer
fails to give such notice within ten days after acceptance of appointment by the
successor Book-Entry Depositary, the successor Book-Entry Depositary shall cause
such notice to be given at the expense of the Issuer.
SECTION 3.10 Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Book-Entry Depositary may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Book-Entry Depositary
shall be a party, or any corporation succeeding to all or substantially all the
agency business of the Book-Entry Depositary, shall be the successor of the
Book-Entry Depositary hereunder, without the execution or
19
filing of any paper or any further act on the part of any of the parties hereto;
provided that such corporation shall be otherwise eligible to serve as
Book-Entry Depositary under this Article.
SECTION 3.11 Compliance with Letter of Representations. As
long as DTC or its nominee is the Depositary, the Book-Entry Depositary shall
comply with all of its representations made to DTC in the Letter of
Representations, and any successor Book-Entry Depositary shall comply with all
representations made to DTC in a similar letter of representations in form and
substance acceptable to DTC and the Issuer.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.1 Notices to Book-Entry Depositary or Issuer. Any
request, demand, authorization, direction, notice, consent, or waiver or other
document provided or permitted by this Agreement to be made upon, given or
furnished to, or filed with:
(a) the Book-Entry Depositary by the Depositary, by the
Trustee or by the Issuer shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if made, given, furnished or filed in
writing and personally delivered or mailed, by overnight delivery or certified
mail, postage prepaid, to the Book-Entry Depositary at the following address:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Global Trust Services
Facsimile: 0-000-000-0000
or at any other address furnished in writing by the Book-Entry Depositary to the
Depositary, the Trustee and the
Issuer; or
(b) the Issuer by the Book-Entry Depositary or by the
Depositary shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if made, given, furnished or filed in writing and
personally delivered or mailed, by overnight delivery or first-class postage
prepaid, to the following address:
RSL Communications PLC
000 Xxxxx Xxxxxx
Xxxxx 0000
20
New York, New York 10153
with a copy to:
Xxxxxx X.X. Xxxxxxx
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
or at any other addresses furnished in writing to the Book-Entry Depositary by
the Issuer. Any communication sent pursuant to this Section 4.1 shall be deemed
given when delivered, if personally delivered or sent by overnight delivery and
three days after deposit in the U.S. mail, if sent by certified mail.
SECTION 4.2 Notice to the Depositary; Waiver. Where this
Agreement provides for notice to the Depositary of any event, such notice shall
be sufficiently given (unless otherwise herein expressly provided or as provided
in the Letter of Representations) if in writing and mailed, first-class postage
prepaid, to the Depositary at the address that the Depositary has notified in
writing to the Book-Entry Depositary, in each case not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. Where this Agreement provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by the Depositary shall be filed with the Book-Entry
Depositary, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Book-
Entry Depositary shall constitute a sufficient notification for every purpose
hereunder.
SECTION 4.3 Effect of Headings and Table of Contents. The
Article and Section headings herein are for convenience only and shall not
affect the construction hereof.
SECTION 4.4 Successors and Assigns. All covenants and
agreements in this Agreement and the Notes by the Issuer shall bind its
successors and assigns, whether so expressed or not.
21
SECTION 4.5 Separability Clause. In case any provision in this
Agreement or in the Notes shall be invalid, illegal or unenforceable, the
validity. legality and enforceability of the remaining provisions hereof and
thereof shall not in any way be affected or impaired thereby.
SECTION 4.6 Benefits of Agreement. Nothing in this Agreement,
the Notes, or the Indenture, express or implied, shall give to any Person, other
than the parties hereto and their successors hereunder, any benefits or any
legal or equitable right, remedy or claim under this Agreement. By the
acceptance of the Depositary Interests representing the Notes, the Depositary
shall be party to this Agreement and shall be bound by all of the terms and
conditions hereof and of the Indenture and the Notes.
SECTION 4.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
SECTION 4.8 Jurisdiction. The Issuer agrees that any legal
suit, action or proceeding against the Issuer brought by the Depositary or the
Book-Entry Depositary arising out of or based upon this Agreement may be
instituted in any state or federal court in the Borough of Manhattan, The City
of New York, and waives any objection which it may now or hereafter have to the
laying of venue of any such proceeding and irrevocably submits to the
non-exclusive jurisdiction of such courts in any suit, action or proceeding. The
Issuer has appointed RSL Communications N. America, Inc., 000 Xxxxx Xxxxxx,
Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent (together with any
successor, the "Authorized Agent") upon whom process may be served in any legal
suit, action or proceeding arising out of or based upon this Agreement which may
be instituted in any state or federal court in the Borough of Manhattan, The
City of New York, by the Depositary or the Book-Entry Depositary and expressly
accepts the nonexclusive jurisdiction of any such court in respect of any such
action. The Issuer represents and warrants that the Authorized Agent has agreed
to act as said agent for service of process, and the Issuer agrees to take any
and all action, including the filing of any and all documents and instruments,
that may be necessary to continue such appointment in full force and effect as
aforesaid. Service of process upon the Authorized Agent shall be deemed, in
every respect, effective service of process upon the Issuer. Notwithstanding the
foregoing, any action based on this
22
Agreement may be instituted by the Book-Entry Depositary in any competent court
in England.
SECTION 4.9 Counterparts. This Agreement may be executed in
any number of counterparts by the parties hereto on separate counterparts, each
of which, when so executed and delivered, shall be deemed an original, but all
of which shall together constitute one and the same instrument.
SECTION 4.10 Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times during normal business hours at the
Corporate Trust Office of the Book-Entry Depositary for inspection by the
Depositary.
SECTION 4.11 Satisfaction and Discharge. Upon Issuer Request
to terminate this Agreement, this Agreement shall cease to be of further effect
and the Book-Entry Depositary shall execute proper instruments acknowledging
satisfaction and discharge of this Agreement, when (i) the Indenture has been
satisfied and discharged pursuant to the provisions thereof or Registered Notes
have been issued and all Global Notes have been canceled in accordance with the
provisions of the Indenture and Sections 3.05 and 3.09 thereof, (ii) the Issuer
has paid or caused to be paid all sums payable hereunder by the Issuer and (iii)
the Issuer has delivered to the Book-Entry Depositary an Officers' Certificate,
stating that all conditions precedent provided herein relating to the
satisfaction and discharge of this Agreement have been complied with.
SECTION 4.12 Amendments. The Issuer and the Book-Entry
Depositary may amend this Agreement without the consent of the Depositary:
(a) to cure any ambiguity, defect or inconsistency, provided
that such amendment or supplement does not adversely affect the rights of the
Depositary or any holder of Book-Entry Notes;
(b) to evidence the succession of another person to the Issuer
(when a similar amendment with respect to the Indenture is being executed) and
the assumption by any such successor of the covenants of the Issuer herein;
(c) to evidence or provide for a successor Book-Entry
Depositary,
(d) to make any amendment, change or supplement that does not
adversely affect the Depositary or holders of Book-Entry Notes;
23
(e) to add to the covenants of the Issuer or the
Book-Entry Depositary; or
(f) to comply with the United States federal and United
Kingdom. securities laws.
No amendment may be made to this Agreement that adversely
affects the Depositary without the consent of the Depositary and no amendment
may be made to this Agreement that adversely affects the holders of Book-Entry
Notes without the consent of a majority of the aggregate principal amount of
Book-Entry Notes outstanding.
SECTION 4.13 Book-Entry Depositary To Sign Amendments. The
Book-Entry Depositary shall sign any amendment authorized pursuant to Section
4.12 hereof if the amendment does not adversely affect the rights, duties,
liabilities or immunities of the Book-Entry Depositary. If it does, the
Book-Entry Depositary may but need not sign it. In signing such amendment the
Book-Entry Depositary shall be entitled to receive indemnity satisfactory to it
and to receive, and shall be fully protected in reasonably relying upon. an
Officers' Certificate (which need only cover the matters set forth in clause (a)
below) and an Opinion of Counsel to the effect that:
(a) such amendment is authorized or permitted by
this Agreement;
(b) the Issuer has all necessary corporate power and authority
to execute and deliver the amendment and that the execution, delivery and
performance of such amendment has been duly authorized by all necessary
corporate action;
(c) the execution, delivery and performance of the amendment
do not conflict with, or result in the breach of or constitute a default under
any of the terms, conditions or provisions of (i) this Agreement, (ii) the
Memorandum and Articles of Association of the Issuer, (iii) any law or
regulation applicable to the Issuer, (iv) any material order, writ, injunction
or decree of any court or governmental instrumentality applicable to the Issuer
or (v) any material agreement or instrument to which the Issuer is subject; and
(d) such amendment has been duly and validly executed and
delivered by the Issuer, and this Agreement together with such amendment
constitutes a legal, valid and binding obligation of the Issuer enforceable
against the Issuer in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency or similar laws affecting
the enforcement of
24
creditors' rights generally and general equitable principles.
[signature page follows]
25
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed as of the date first written above.
RSL COMMUNICATIONS PLC
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
as Book-Entry Depositary
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name:
Title:
With respect to the provisions of Section 3.6 only
RSL COMMUNICATIONS, LTD.
By: /s/ Xxxxx Xxxxxxxx
----------------------------------------------
Name:
Title:
26
================================================================================
RSL COMMUNICATIONS PLC
as Issuer, with RSL Communications, Ltd. of
$100,000,000, 12% Senior Discount Notes Due 2008
of RSL Communications PLC
and
THE CHASE MANHATTAN BANK
as Book-Entry Depositary
NOTE DEPOSIT AGREEMENT
Dated as of November 9, 1998
================================================================================
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND OTHER GENERAL PROVISIONS......................................1
SECTION 1.1 Definitions.............................................1
SECTION 1.2 Rules of Construction...................................4
ARTICLE II
GLOBAL NOTES, DEPOSITARY INTERESTS............................................4
SECTION 2.1 Deposit of the Global Notes.............................4
SECTION 2.2 Book-Entry System.......................................5
SECTION 2.3 Registration of Transfer of Depositary
Interests............................................................5
SECTION 2.4 Transfer of Global Notes and Depositary
Interests; Termination...............................................6
SECTION 2.5 Cancellation............................................7
SECTION 2.6 Payments in Respect of the Global Notes.................7
SECTION 2.7 Changes in Principal Amount of the Global
Notes................................................................8
SECTION 2.8 Record Date.............................................9
SECTION 2.9 Action in Respect of the Depositary
Interests............................................................9
SECTION 2.10 Changes Affecting the Global Notes....................11
SECTION 2.11 Surrender of the Global Notes.........................11
SECTION 2.12 Reports...............................................11
ARTICLE III
THE BOOK-ENTRY DEPOSITARY....................................................11
SECTION 3.1 Certain Duties and Responsibilities....................11
SECTION 3.2 Notice of Default......................................13
SECTION 3.3 Certain Rights of Book-Entry Depositary................13
SECTION 3.4 Not Responsible for Recitals or Issuance
of Notes............................................................15
SECTION 3.5 Money Held in Trust....................................15
SECTION 3.6 Compensation and Reimbursement.........................15
SECTION 3.7 Book-Entry Depositary Required:
Eligibility.........................................................16
SECTION 3.8 Resignation and Removal, Appointment of
Successor...........................................................17
SECTION 3.9 Acceptance of Appointment by Successor.................18
SECTION 3.10 Merger, Conversion, Consolidation or
Succession to Business..............................................19
SECTION 3.11 Compliance with Letter of Representations..............20
ARTICLE IV
MISCELLANEOUS PROVISIONS.....................................................20
SECTION 4.1 Notices to Book-Entry Depositary or Issuer.............20
SECTION 4.2 Notice to the Depositary; Waiver.......................21
SECTION 4.3 Effect of Headings and Table of Contents...............21
SECTION 4.4 Successors and Assigns.................................21
SECTION 4.5 Separability Clause....................................22
SECTION 4.6 Benefits of Agreement..................................22
SECTION 4.7 GOVERNING LAW..........................................22
SECTION 4.8 Jurisdiction...........................................22
SECTION 4.9 Counterparts...........................................23
SECTION 4.10 Inspection of Agreement...............................23
SECTION 4.11 Satisfaction and Discharge............................23
SECTION 4.12 Amendments............................................23
SECTION 4.13 Book-Entry Depositary To Sign
Amendments..........................................................24
