1
EXHIBIT 4.2
2
July 25, 1996
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
IMPSAT Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to the several placement agents named in Schedule I
hereto (collectively, the "Placement Agents") $125 million principal amount of
its Senior Guaranteed Notes due 2003 (the "Notes") to be issued pursuant to the
provisions of an Indenture to be dated as of July 30, 1996 (the "Indenture")
between the Company and The Bank of New York, as Trustee. The Notes will be
guaranteed (the "Guarantee") by IMPSAT S.A., a company organized under the laws
of Argentina and a 51%-owned subsidiary of the Company (the "Guarantor").
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 ("Rule 144A"), in offshore transactions in reliance on Regulation
S under the Securities Act ("Regulation S") and to institutional accredited
investors (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act) that deliver a letter in the form annexed to the Final Memorandum.
3
2
In connection with the sale of the Notes, the Company has
prepared a preliminary private placement memorandum (the "Preliminary
Memorandum") and will prepare a final private placement memorandum (the "Final
Memorandum" and, with the Preliminary Memorandum, each a "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.
The purchasers of the Notes and their direct and indirect
transferees will be entitled to the benefits of a Registration Rights Agreement,
to be dated the Closing Date (as defined below) and to be substantially in the
form attached hereto as Exhibit A.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, you that as of the date hereof:
(a) The Preliminary Memorandum does not contain and the Final
Memorandum, in the form used by the Placement Agents to confirm sales
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 Section 1(a) do not apply to statements or
omissions in either Memorandum based upon information relating to any
Placement Agent furnished to the Company in writing by such Placement
Agent through ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated expressly for use
therein.
(b) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware, United States of America, has the corporate power and
authority to own its property and to conduct its business as described
in each 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 on the Company and
its subsidiaries, taken as a whole.
(c) Each subsidiary of the Company has been duly incorporated
and is validly existing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its
property and to conduct its business as described in each 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 have a material adverse effect on
such subsidiary. The Guarantor is a 51%-owned subsidiary of the
Company; IMPSAT S.A. ("ImpSat Colombia") is a 74.2%-owned subsidiary of
the Company; IMPSATEL del Ecuador S.A. ("ImpSat Ecuador") is a
wholly-owned subsidiary of the Company; IMPSAT S.A. de ▇.▇.
▇
▇
("▇▇▇▇▇▇ ▇▇▇▇▇▇") is a 99.9%-owned subsidiary of the Company; and
Telecomunicaciones IMPSAT, S.A. ("ImpSat Venezuela") is a 75%-owned
subsidiary of the Company.
(d) This Agreement has been duly authorized, executed and
delivered by the Company and the Guarantor.
(e) The Registration Rights Agreement has been duly authorized
and, when executed and delivered by the Company and the Guarantor, will
be a valid and binding agreement of the Company and the Guarantor
enforceable in accordance with its terms, except as (x) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally, (y) the
availability of equitable remedies may be limited by equitable
principles of general applicability and (z) any rights to indemnity and
contribution may be limited by federal and state securities laws and
public policy considerations.
(f) (i) The Notes have been duly authorized and, when executed,
authenticated and delivered in accordance with the terms of the
Indenture and paid for by the Placement Agents in accordance with the
terms of this Agreement, will (x) be valid and binding obligations of
the Company enforceable in accordance with their terms, except as (A)
the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (B) rights of
acceleration, if applicable, and the availability of equitable remedies
may be limited by equitable principles of general applicability and (y)
be entitled to the benefits of the Indenture and (ii) the Guarantee has
been duly authorized by the Guarantor and, when the Indenture has been
executed, authenticated and delivered by the Guarantor and the Notes
are duly executed, authenticated, delivered and paid for in accordance
with the Indenture and this Agreement, will be a valid and binding
obligation of the Guarantor enforceable in accordance with its terms,
except as (A) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and
(B) rights of acceleration, if applicable, and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(g) The Indenture has been duly authorized, executed and
delivered by the Company and the Guarantor, and is a valid and binding
agreement of the Company and the Guarantor, enforceable in accordance
with its terms except as (x) the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (y) rights of acceleration, if applicable, and the
availability of equitable remedies may be limited by equitable
principles of general applicability.
5
4
(h) The execution and delivery by the Company and the Guarantor
of, and the performance by the Company and the Guarantor of their
respective obligations under, this Agreement, the Indenture, the
Registration Rights Agreement, the Notes (in the case of the Company),
the Guarantee (in the case of the Guarantor), and the issuance, sale
and delivery of the Notes will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the
Company or the Estatutos of the Guarantor or any agreement or other
instrument binding upon the Company or any of its subsidiaries or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company, the Guarantor or any other
subsidiary of the Company, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is
required for the performance by the Company or the Guarantor of its
respective obligations under this Agreement, the Indenture, the
Registration Rights Agreement, the Notes (in the case of the Company),
the Guarantee (in the case of the Guarantor), and the issuance, sale
and delivery of the Notes, except 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.
(i) 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, from
that set forth in the Preliminary Memorandum.
(j) There are no legal or governmental proceedings 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 subject other than proceedings accurately described in
all material respects in each Memorandum and proceedings that would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole, or on the power or ability of the Company and the
Guarantor to perform their respective obligations under this Agreement,
the Indenture, the Registration Rights Agreement, the Notes (in the
case of the Company), the Guarantee (in the case of the Guarantor), to
consummate the transactions contemplated by each such agreement, or to
apply the net proceeds of the issuance of the Notes as described in the
Final Memorandum under the caption "Use of Proceeds."
(k) Each of the Company and its subsidiaries has all necessary
certificates, orders, permits, licenses, authorizations, consents and
approvals of and from, and has made all declarations and filings with,
all federal, state, local, foreign supranational, national, regional
and other governmental authorities and all courts and tribunals, to
own, lease, license and use its properties and assets and to conduct
its business in the manner described in the Final Memorandum, and
neither the Company nor any of its
6
5
subsidiaries has 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 or
any of its subsidiaries in violation of, or in default under, any
federal, state, local, foreign supranational, national or regional law,
regulation, rule, decree, order or judgment applicable to the Company
or any of its subsidiaries 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,
except as described in the Final Memorandum.
(l) Neither the Company nor any affiliate (as defined in Rule
501(b) of Regulation D under the Securities Act, an "Affiliate") of the
Company has directly, or through any agent (other than the Placement
Agents), (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 in connection with the offering of
the Notes (as those terms are used in Regulation D under the Securities
Act) or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act.
(m) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended.
(n) It is not necessary in connection with the offer, sale and
delivery of the Notes to the Placement Agents in the manner
contemplated by this Agreement to register the Notes under the
Securities Act or to qualify the Indenture 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.
7
6
(p) The Company has complied, to the extent applicable, with all
provisions of Section 517-075, Florida Statutes (Chapter 92-198, Laws of
Florida).
(q) None of the Company, its Affiliates or any person acting on its or
their behalf (other than the Placement Agents) has engaged in any directed
selling efforts (as that term is defined in Regulation S under the Securities
Act ("Regulation S")) with respect to the Notes and the Company and its
Affiliates and any person acting on its or their behalf (other than the
Placement Agents) have complied with the offering restrictions requirement of
Regulation S.
(r) Subsequent to the respective dates as of which information is given
in the Final Memorandum, (1) 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; (2) 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, except in each case as described in
or contemplated by the Final Memorandum.
(s) The Company and its subsidiaries have good and marketable title in
fee simple to all real property and good and marketable title to all personal
property owned by them which is material to the business of the Company and its
subsidiaries, in each case free and clear of all liens, encumbrances and defects
except such as are described in the Final Memorandum or 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; and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the
Company and its subsidiaries, in each case except as described in or
contemplated by the Final Memorandum.
(t) No material labor dispute with the employees of the Company or any
of its subsidiaries exists, except as described in or contemplated by the Final
Memorandum, or, to the knowledge of the Company, is imminent; and the Company is
not aware of any existing, threatened or imminent labor disturbance by the
employees of any of its principal suppliers, manufacturers or contractors that
could result in any 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.
8
7
(u) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; neither the Company nor any such
subsidiary has been refused any insurance coverage sought or applied
for; and 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 materially and adversely affect the
condition, financial or otherwise, or the earnings, business or
operations of the Company and its subsidiaries, taken as a whole,
except as described in or contemplated by the Final Memorandum.
(v) The Company and each of its subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable
assurance that (1) transactions are executed in accordance with
management's general or specific authorizations; (2) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (3) access to assets is permitted only
in accordance with management's general or specific authorization; and
(4) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
2. 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
Final Memorandum as soon as practicable after this Agreement is entered into as
in your judgment is advisable.
3. Purchase and Delivery. The Company hereby agrees to sell to the
several Placement Agents, and the Placement Agents, 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 respective principal amount of Notes set forth in Schedule I hereto
opposite their names at a purchase price of 97% of the principal amount thereof
plus accrued interest, if any, from July 30, 1996 to the date of payment and
delivery.
Payment for the Notes shall be made against delivery of the Notes at a
closing (the "Closing") to be held at the office of Shearman & Sterling, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, at 10:00 A.M., local time, on July 30,
1996, or at such other time on the same or such other date, not later than
August 9, 1996, as shall be designated in writing by you. The time and date of
such payment are herein referred to as the Closing Date. Payment for the Notes
shall be made by wire transfer, to accounts specified by the Company in writing,
in immediately available funds.
9
8
Certificates for the Notes shall be registered in such names and in
such denominations as you shall request in writing not less 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 Placement Agents duly paid,
against payment of the purchase price therefor.
4. Conditions to Closing. The several obligations of the Placement
Agents under this Agreement to purchase the Notes will be subject to the
following conditions:
(a) Subsequent to the date 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 any of the Company's
securities 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 Preliminary Memorandum that, in the judgment of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated, is material and adverse and that makes it, in the
judgment of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, impracticable to market
the Notes on the terms and in the manner contemplated in the Final
Memorandum.
(b) You 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 clause (a)(i) above and to the effect that the
representations and warranties of the Company contained in this Agreement are
true and correct as of the Closing Date and that the Company has complied with
all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(c) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇ &
▇▇▇▇▇▇, United States counsel for the Company, each dated the Closing Date, to
the effect set forth in Exhibit B.
10
9
(d) You shall have received on the Closing Date an opinion of
Nicolson & ▇▇▇▇, Argentine counsel for the Company and the Guarantor,
dated the Closing Date, to the effect set forth in Exhibit C.
(e) You shall have received on the Closing Date an opinion of
▇▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Colombian counsel for ImpSat Colombia, dated
the Closing Date, to the effect set forth in Exhibit D.
(f) You shall have received on the Closing Date an opinion of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Ecuadoran counsel for ImpSat Ecuador, dated
the Closing Date, to the effect set forth in Exhibit E.
(g) You shall have received on the Closing Date an opinion of
▇▇▇▇▇▇, Ringe & ▇▇▇▇▇▇, Mexican counsel for ImpSat Mexico, dated the
Closing Date, to the effect set forth in Exhibit F.
(h) You shall have received on the Closing Date an opinion of
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Venezuelan counsel for ImpSat Venezuela, dated the
Closing Date, to the effect set forth in Exhibit G.
(i) You shall have received on the Closing Date an opinion of
▇▇▇▇▇ ▇▇▇▇▇, Grondona, Benites, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ (h),
Argentine counsel for the Placement Agents, with respect to such
matters as you may reasonably request.
(j) You shall have received on the Closing Date an opinion of
Shearman & Sterling, United States counsel for the Placement Agents,
dated the Closing Date, with respect to such matters as you may
reasonably request.
(k) You shall have received on each of the date hereof and the
Closing Date a letter, dated the date hereof or the Closing Date, as
the case may be, in form and substance satisfactory to you, from
Deloitte & Touche LLP, independent public accountants for the Company,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Final Memorandum.
5. Covenants of the Company. In further consideration of the agreements
of the Placement Agents contained in this Agreement, the Company covenants as
follows:
(a) To furnish to each Placement Agent, without charge, during
the period mentioned in paragraph (c) below, as many copies of the
Final Memorandum, and any supplements and amendments thereto as you may
reasonably request and to
11
10
deliver copies of the Final Memorandum to each Placement Agent prior to
5:00 P.M. (New York time) on the business day following the date
hereof.
(b) Before amending or supplementing either Memorandum, to furnish to
you a copy of each such proposed amendment or supplement and not to use any such
proposed amendment or supplement to which you reasonably object.
(c) If, during such period after the date hereof and prior to the date
on which all of the Notes shall have been sold by the Placement Agents, any
event shall occur or condition exist as a result of which it is necessary in
your judgment to amend or supplement the Final Memorandum in order to make the
statements therein, in the light of the circumstances when such Memorandum is
delivered to a purchaser, not misleading, or if, in the opinion of United States
counsel to the Placement Agents it is necessary to amend or supplement such
Memorandum to comply with applicable law, forthwith to prepare and furnish, at
its own expense, to the Placement Agents, either amendments or supplements to
such Memorandum so that the statements in such Memorandum as so amended or
supplemented will not, in the light of the circumstances when such Memorandum is
delivered to a purchaser, be misleading or so that such Memorandum, as so
amended or supplemented, will comply with applicable law.
(d) To endeavor to qualify the Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request.
(e) Whether or not any sale of such Notes is consummated, to pay all
expenses incident to the performance of its obligations under this Agreement,
including: (i) the preparation of each 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 5(d),
including filing fees and the fees and disbursements of counsel for the
Placement Agents in connection therewith and in connection with the preparation
of any Blue Sky or legal investment memoranda, (v) the printing and delivery to
the Placement Agents in quantities as hereinabove stated of copies of the
Memorandum and any amendments or supplements thereto, (vi) any fees charged by
rating agencies for the rating of such Notes, (vii) all document production
charges and expenses of counsel to the Placement Agents (but not including their
fees for professional services) in connection with the preparation of this
Agreement, (viii) the fees and expenses, if any, incurred in connection with the
admission of such Notes for trading in any appropriate market system and (ix)
any expenses incurred by the Company in connection with a "road show"
presentation to potential investors.
12
11
(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 could be integrated
with the sale of the Notes in a manner which would require the
registration under the Securities Act of such Notes.
(g) Not to solicit any offer to buy or offer or sell the Notes
by means of any form of general solicitation or general advertising (as
those terms are used in Regulation D under the Securities Act) or in
any manner involving a public offering within the meaning of Section
4(2) of the Securities Act.
(h) While any of the Notes remain outstanding, 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 Section 13 or 15(d) of the Exchange Act.
(i) To use its 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.
(j) None of the Company, its Affiliates or any person acting on
its or their behalf (other than the Placement Agents) will engage in
any directed selling efforts (as that term is defined in Regulation S)
with respect to the Notes, and the Company and its Affiliates and each
person acting on its or their behalf (other than the Placement Agents)
will comply with the offering restrictions of Regulation S.
6. Offering of Securities, Restrictions on Transfer. (a) Each Placement
Agent, severally and not jointly, represents and warrants that such Placement
Agent is a qualified institutional buyer as defined in Rule 144A under the
Securities Act (a "QIB"). Each Placement Agent, severally and not jointly,
agrees with the Company that (i) it will not solicit offers for, or offer or
sell, such Notes by any form of general solicitation or general advertising (as
those terms are used in Regulation D 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 such 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, (x) QIBs or (y) other institutional accredited
investors (as defined in Rule 501(a) (1), (2), (3) or (7) under the Securities
Act) ("institutional accredited investors") that, prior to their purchase of the
Notes, deliver to such Placement Agent a letter containing the representations
and agreements set forth in Annex A to the Final Memorandum 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
13
12
discretionary basis for foreign beneficial owners (other than an estate or
trust)) that, in each case, in purchasing such Notes are deemed to have
represented and agreed as provided in the Final Memorandum under the caption
"Transfer Restrictions."
(b) Each Placement Agent, severally and not jointly, represents,
warrants, and agrees with respect to offers and sales outside the United States
that:
(i) it understands that no action has been or will be taken in
any jurisdiction by the Company that would permit a public offering of
the Notes, or possession or distribution of either Memorandum or any
other offering or publicity material relating to the Notes, in any
country or jurisdiction where action for that purpose is required;
(ii) such Placement Agent will comply with all applicable laws
and regulations in each jurisdiction in which it acquires, offers,
sells or delivers Notes or has in its possession or distributes either
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 Regulation S under the Securities Act or pursuant to an
exemption from the registration requirements of the Securities Act;
(iv) such Placement Agent has offered the Notes and will offer
and sell the Notes (A) as part of its distribution at any time and (B)
otherwise until 40 days after the later of the commencement of the
offering of the Notes and the Closing Date, only in accordance with
Rule 903 of Regulation S or another exemption from the registration
requirements of the Securities Act. Accordingly, neither such Placement
Agent, its Affiliates nor any persons acting on its or their behalf
have engaged or will engage in any directed selling efforts (within the
meaning of Regulation S) with respect to the Notes, and any such
Placement Agent, its Affiliates and any such persons have complied and
will comply with the offering restrictions requirements of Regulation
S;
(v) such Placement Agent (A) has not offered or sold and 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 (the "Regulations"); (B) complied and will comply with
all applicable provisions of the Financial Services ▇▇▇ ▇▇▇▇ and the
Regulations with respect to anything done
14
13
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 to any person in the United Kingdom any document received by it
in connection with the issue of the Notes if that person is of a kind
described in Article 11(3) of the Financial Services ▇▇▇ ▇▇▇▇
(Investment Advertisements) (Exemptions) Order 1995 or is a person to
whom such document may otherwise lawfully be issued or passed on;
(vi) such Placement Agent understands that the Notes have not
been and will not be registered under the Securities and Exchange Law
of Japan, and represents that it has not offered or sold, and agrees
that it will not offer or sell, any of the Notes, directly or
indirectly in Japan or to any resident of Japan except (A) pursuant to
an exemption from the registration requirements of the Securities and
Exchange Law of Japan and (B) in compliance with any other applicable
requirements of Japanese law; and
(vii) such Placement Agent agrees that, at or prior to
confirmation of sales of the Notes, it will have sent to each
distributor, dealer or person receiving a selling concession, fee or
other remuneration that purchases Notes from it during the restricted
period a confirmation or notice to substantially the following effect:
"The Notes covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Securities Act") and may
not be offered and sold within the United States or to, or for
the account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after
the later of the commencement of the offering and the closing
date, except in either case in accordance with Regulation S (or
Rule 144A, if available) under the Securities Act. Terms used
above have the meaning given to them by Regulation S.
Terms used in this Section 6 have the meanings given to them by Regulation S.
7. Indemnification and Contribution. (a) Each of the Company and
the Guarantor agrees to indemnify and hold harmless each Placement Agent, and
each person, if any, who controls such Placement Agent within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, or is
under common control with, or is controlled by, such Placement Agent, from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred by any Placement
Agent or any such controlling or affiliated person 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 either 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 light of the
circumstances under which they were made not
15
14
misleading, except insofar as 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 Placement Agent furnished to the
Company in writing by such Placement Agent through you expressly for use
therein.
(b) Each Placement Agent agrees, severally and not jointly, to
indemnify and hold harmless each of the Company and the Guarantor and each of
their respective directors, officers and each person, if any, who controls the
Company or the Guarantor 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 and the Guarantor to such Placement Agent,
but only with reference to information relating to such Placement Agent
furnished to the Company in writing by such Placement Agent through you
expressly for use in either Memorandum or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing 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 connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the 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 reasonably satisfactory to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated in the case of
parties indemnified pursuant to paragraph (a) above and reasonably satisfactory
to the Company in the case of parties indemnified pursuant to paragraph (b)
above. 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
16
15
settlement is entered into more than 30 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, 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 by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(d) To the extent the indemnification provided for in paragraph
(a) or (b) of this Section 7 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities, then each
indemnifying party under such paragraph, 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 and the Guarantor on the one hand, and the
Placement Agents, on the other hand, from the offering of such Notes or (ii) if
the allocation provided by clause (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 (i) above but also the relative fault of the Company and
the Guarantor, on the one hand, and the Placement Agents, 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 and the Guarantor,
on the one hand, and the Placement Agents, on the other hand, in connection with
the offering of such Notes shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Notes (before
deducting expenses) received by the Company and the total discounts and
commissions received by the Placement Agents in respect thereof bear to the
aggregate offering price of such Notes. The relative fault of the Company and
the Guarantor, on the one hand, and of the Placement Agents, on the other hand,
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
Guarantor or by the Placement Agents and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Placement Agents' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of Notes they have purchased hereunder, and not
joint.
(e) The Company and the Guarantor and the Placement Agents agree
that it would not be just or equitable if contribution pursuant to this Section
7 were determined by pro rata allocation (even if the Placement Agents were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in paragraph
(d) above shall be deemed to include, subject to the limitations set forth
above,
17
16
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 7, no Placement Agent shall 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 Placement
Agent has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The indemnity and contribution provisions
contained in this Section 7 and the representations and warranties of the
Company contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of the Placement Agents or any person
controlling the Placement Agents or by or on behalf of the Company or the
Guarantor or any officer or director thereof or any person controlling the
Company or the Guarantor and (iii) acceptance of and payment for any of the
Notes. The remedies provided for in this Section 7 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.
8. 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 or the National Association
of Securities Dealers, Inc., (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 (a)(i)
through (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 Final Memorandum.
9. Miscellaneous. If, on the Closing Date, any one or more of
the Placement Agents shall fail or refuse to purchase Notes that it or they have
agreed to purchase hereunder on such date, and the aggregate principal amount of
Notes which such defaulting Placement Agent agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of Notes
to be purchased on such date, the other Placement Agent shall be obligated
severally in the proportions that the principal amount of Notes set forth
opposite its name in Schedule I bears to the aggregate principal amount of Notes
set forth opposite the name of the non-defaulting Placement Agent, or in such
other proportions as you may specify, to purchase the Notes which such
defaulting Placement Agent agreed but failed or refused to purchase on such
date; provided that in no event shall
18
17
the principal amount of Notes that any Placement Agent has agreed to purchase
pursuant to Section 3 be increased pursuant to this Section 9 by an amount in
excess of one-ninth of such principal amount of Notes without the written
consent of such Placement Agent. If, on the Closing Date any Placement Agent
shall fail or refuse to purchase Notes which it has agreed to purchase hereunder
on such date and the aggregate principal amount of Notes with respect to which
such default occurs is more than one-tenth of the aggregate principal amount of
Notes to be purchased on such date and arrangements satisfactory to you and the
Company for the purchase of such Notes are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Placement Agent or of the Company. In any such case either you or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Final Memorandum or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Placement
Agent from liability in respect of any default of such Placement Agent under
this Agreement.
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.
If this Agreement shall be terminated by the Placement Agents,
or either 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, the Company will reimburse the Placement Agents or such
Placement Agents as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Placement Agents in
connection with this Agreement or the offering contemplated hereunder.
Each of the Company and the Guarantor hereby (i) acknowledges
that it has irrevocably designated and appointed CT Corporation System, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (together with any successor, the "Process
Agent"), as its authorized agent upon which process may be served in any suit,
action or proceeding arising out of or relating to this Agreement or the
transactions contemplated herein or brought under federal or state securities
laws that may be instituted in any federal or state court in the State of New
York, sitting in the city of New York, and acknowledges that the Process Agent
has accepted such designation, (ii) agrees that service of process upon the
Process Agent and written notice of such service to the Company or the
Guarantor, as the case may be (mailed or delivered to the Chief Executive
Officer of the Company at its principal office at ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇), shall be deemed in every respect effective service of
process upon the Company or the Guarantor, as the case may be, in any such suit,
action or proceeding and (iii) agrees to take any and all action, including the
execution and filing of any and all such documents and instruments as may be
necessary to continue such
19
18
designation and appointment of the Process Agent in full force and effect so
long as any of the Notes shall be outstanding. Each of the Company and the
Guarantor hereby agrees to submit to the nonexclusive jurisdiction of any such
federal or state court in the State of New York in any such suit, action or
proceeding arising out of or relating to this Agreement or the transactions
contemplated herein and hereby waives to the fullest extent permitted by law any
defense to the institution or continuance of any such suit, action or proceeding
based upon lack of proper venue, inconvenient forum or similar grounds.
To the extent that the Company or the Guarantor has or hereafter
may acquire any immunity from jurisdiction of any court or from any legal
process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, each of them hereby irrevocably waives such immunity in respect
of their obligations under this Agreement to the fullest extent permitted by
law.
This Agreement shall be governed by the laws of the State of
New York.
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.
20
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 us.
Very truly yours,
IMPSAT CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Name:
Title: President
By /s/ ▇▇▇▇▇▇▇ Milvio
------------------------------
Name:
Title: Attorney in fact
IMPSAT S.A.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name:
Title: Attorney in fact
Agreed, July 15, 1996
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By /s/ ▇. ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By
------------------------------
Name:
Title:
21
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 us.
Very truly yours,
IMPSAT CORPORATION
By ______________________________
Name:
Title:
By ______________________________
Name:
Title:
IMPSAT S.A.
By ______________________________
Name:
Title:
Agreed, _____________, 1996
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By ______________________________
Name:
Title:
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By ______________________________
Name:
Title:
22
SCHEDULE I
Principal Amount of
Placement Agent Notes To Be Purchased
--------------- ---------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $ 87,500,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc. $ 37,500,000
------------
Total.................. $125,000,000
============
23
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
24
Exhibit A
REGISTRATION RIGHTS AGREEMENT
Dated July 30, 1996
among
IMPSAT CORPORATION
IMPSAT S.A.
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
25
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into July 30. 1996. among IMPSAT CORPORATION, a Delaware corporation
(the "Company"), IMPSAT S.A. (the "Guarantor") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED and BEAR. ▇▇▇▇▇▇▇ & CO. INC. (the "Placement Agents").
This Agreement is made pursuant to the Placement Agreement dated
July 25, 1996, among the Company, the Guarantor and the Placement Agents (the
"Placement Agreement"), which provides for the sale by the Company to the
Placement Agents of an aggregate of $125 million principal amount of the
Company's 12 1/8% Senior Guaranteed Notes Due 2003 (the "Securities"). In order
to induce the Placement Agents to enter into the Placement Agreement. the
Company and the Guarantor have agreed to provide to the Placement Agents and
their direct and indirect transferees the registration rights set forth in this
Agreement. The execution of this Agreement is a condition to the closing under
the Placement Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended
from time to time.
1934 Act" shall mean the Securities Exchange Act of 1934. as
amended from time to time.
"Closing Date" shall mean the Closing Date as defined in the
Placement Agreement.
"Company" shall have the meaning set forth in the preamble and
shall also include the Company's successors.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2(a)
hereof.
"Exchange Offer Registration" shall mean a registration under
the 1933 Act effected pursuant to Section 2(a) hereof.
26
2
"Exchange Offer Registration Statement" shall mean an
exchange offer registration statement on Form S-4 (or, if applicable,
on another appropriate form) and all amendments and supplements to such
registration statement. in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by
reference therein.
"Exchange Securities" shall mean securities issued by the
Company and guaranteed on an unsubordinated basis by the Guarantor
under the Indenture containing terms identical to the Securities
(except that (i) interest thereon shall accrue from the last date on
which interest was paid on the Securities or, if no such interest has
been paid. from July 30, 1996 and (ii) the Exchange Securities will not
provide for an increase in the rate of interest and will not contain
terms with respect to transfer restrictions) and to be offered to
Holders of Securities in exchange for Securities pursuant to the
Exchange Offer.
"Holder" shall mean the Placement Agents, for so long as it owns
any Registrable Securities, and each of their successors, assigns and
direct and indirect transferees who become registered owners of
Registrable Securities under the Indenture: provided that for purposes
of Sections 4 and 5 of this Agreement. the term "Holder" shall include
Participating Broker-Dealers (as defined in Section 4(a)).
"Indenture" shall mean the Indenture relating to the Securities
dated as of July 30, 1996 among the Company, the Guarantor and The Bank
of New York, as trustee, and as the same may be amended from time to
time in accordance with the terms thereof.
Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities:
provided that whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder.
Registrable Securities held by the Company or any of its affiliates
(other than the Placement Agents or any other Holder deemed an
affiliate solely by reason of its holding one or more Registrable
Notes) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage or
amount.
"Person" shall mean an individual, partnership, corporation.
trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"Placement Agents" shall have the meaning set forth in the
preamble.
"Placement Agreement" shall have the meaning set forth in the
preamble.
27
3
"Prospectus" shall mean the prospectus in a Registration
Statement, including any preliminary prospectus, and any such
prospectus as amended or supplemented by any prospectus supplement,
including a prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Securities covered by a
Shelf Registration Statement, and by all other amendments and
supplements to such prospectus, and in each case including all material
incorporated by reference therein.
'Registrable Securities" shall mean the Securities; provided,
however, that the Securities shall cease to be Registrable Securities
(i) when a Registration Statement with respect to such Securities shall
have been declared effective under the 1933 Act and such Securities
shall have been disposed of pursuant to such Registration Statement,
(ii) when such Securities have been sold to the public pursuant to Rule
144(k) (or any similar provision then in force. but not Rule 144A)
under the 1933 Act or (iii) when such Securities shall have ceased to
be outstanding; provided, further, that the Securities with respect to
which the Company and the Guarantor have caused to be filed and
declared effective an Exchange Offer Registration Statement and have
commenced an Exchange Offer, in each case pursuant to and in accordance
with Section 2 hereof, and which have not been tendered by the last
Exchange Date (as defined in Section 2(a)(ii) hereof) by the Holder
thereof shall be deemed not to be Registrable Securities.
"Registration Expenses" shall mean any and all expenses incident
to performance of or compliance by the Company and the Guarantor with
this Agreement, including without limitation: (i) all SEC, stock
exchange or National Association of Securities Dealers. Inc.
registration and filing fees, (ii) all fees and expenses incurred in
connection with compliance with state securities or blue sky laws
(including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of
any of the Exchange Securities or Registrable Securities), (iii) all
expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto. any underwriting
agreements. securities sales agreements and other documents relating to
the performance of and compliance with this Agreement, (v) all rating
agency fees, (v) all fees and disbursements relating to the
qualification of the Indenture under applicable securities laws, (vi)
the fees and disbursements of the Trustee and its counsel, (vii) the
fees and disbursements of counsel for the Company and the Guarantor
and. in the case of a Shelf Registration Statement, the fees and
disbursements of one counsel for the Holders (which counsel shall be
selected by the Majority Holders and which counsel may also be counsel
for the Placement Agents) and (viii) the fees and disbursements of the
independent public accountants of the Company and the Guarantor,
including the expenses of any special audits or "comfort" letters
required by or incident to such
28
4
performance and compliance. but excluding fees and expenses of counsel
to the underwriters (other than fees and expenses set forth in clause
(ii) above) or the Holders and underwriting discounts and commissions
and transfer taxes. if any, relating to the sale or disposition of
Registrable Securities by a Holder.
"Registration Statement" shall mean any registration statement
of the Company and the Guarantor that covers any of the Exchange
Securities or Registrable Securities pursuant to the provisions of this
Agreement and all amendments and supplements to any such Registration
Statement, including post-effective amendments, in each case including
the Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant
to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company and the Guarantor pursuant to the provisions
of Section 2(b) of this Agreement which covers all of the Registrable
Securities (but no other securities unless approved by the Holders
whose Registrable Securities are covered by such Shelf Registration
Statement) on an appropriate form under Rule 415 under the 1933 Act, or
any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein,
all exhibits thereto and all material incorporated by reference
therein.
"Trustee" shall mean the trustee with respect to the Securities
under the Indenture.
"Underwritten Registration" or "Underwritten Offering" shall
mean a registration in which Registrable Securities are sold to an
Underwriter (as hereinafter defined) for reoffering to the public.
2. Registration Under the 1933 Act.
(a) To the extent not prohibited by any applicable law or
applicable interpretation of the Staff of the SEC, the Company and the Guarantor
shall use their best efforts to cause to be filed an Exchange Offer Registration
Statement covering the offer by the Company and the Guarantor to the Holders to
exchange all of the Registrable Securities for Exchange Securities and to have
such Registration Statement remain effective until the closing of the Exchange
Offer. The Company and the Guarantor shall commence the
29
5
Exchange Offer promptly after the Exchange Offer Registration Statement has been
declared effective by the SEC and use their best efforts to have the Exchange
Offer consummated not later than 6O days after such effective date. The Company
and the Guarantor shall commence the Exchange Offer by mailing the related
exchange offer Prospectus and accompanying documents to each Holder stating, in
addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Registration Rights Agreement and that all Registrable Securities
validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a
period of at least 20 business days from the date such notice is
mailed) (the "Exchange Dates");
(iii) that any Registrable Security not tendered will remain
outstanding and continue to accrue interest, but will not retain any
rights under this Registration Rights Agreement including any right to
have the interest rate thereon increased pursuant hereto);
(iv) that Holders electing to have a Registrable Security
exchanged pursuant to the Exchange Offer will be required to surrender
such Registrable Security, together with the enclosed letters of
transmittal, to the institution and at the address (located in the
Borough of Manhattan, The City of New York) specified in the notice
prior to the close of business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their election,
not later than the close of business on the last Exchange Date, by
sending to the institution and at the address (located in the Borough
of Manhattan, The City of New York) specified in the notice a telegram,
telex, facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Registrable Securities delivered for
exchange and a statement that such Holder is withdrawing his election
to have such Securities exchanged.
As soon as practicable after the last Exchange Date, the Company
shall:
(i) accept for exchange Registrable Securities or portions
thereof tendered and not validly withdrawn pursuant to the Exchange
Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities or portions thereof so accepted
for exchange by the Company and issue, and cause the Trustee to
promptly authenticate and mail to each Holder, an
30
6
Exchange Security equal in principal amount to the principal amount of
the Registrable Securities surrendered by such Holder.
The Company and the Guarantor shall use their best efforts to complete the
Exchange Offer as provided above and shall comply with the applicable
requirements of the 1934 Act and other applicable laws and regulations in
connection with the Exchange Offer. The Exchange Offer shall not be subject to
any conditions, other than that the Exchange Offer does not violate applicable
law or any applicable interpretation of the Staff of the SEC. The Company shall
inform the Placement Agents of the names and addresses of the Holders to whom
the Exchange Offer is made, and the Placement Agents shall have the right,
subject to applicable law, to contact such Holders and otherwise facilitate the
tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantor determine that
the Exchange Offer Registration provided for in Section 2(a) above is not
available or may not be consummated as soon as practicable after the last
Exchange Date because it would violate applicable law or the applicable
interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any
other reason consummated by January 30, 1997 or (iii) the Exchange Offer has
been completed and in the opinion of counsel for the Placement Agents a
Registration Statement must be filed and a Prospectus must be delivered by the
Placement Agents in connection with any offering or sale of Registrable
Securities, the Company and the Guarantor shall use their best efforts to cause
to be filed as soon as practicable after such determination, date or notice of
such opinion of counsel is given to the Company, as the case may be, a Shelf
Registration Statement providing for the sale by the Holders of all of the
Registrable Securities and to have such Shelf Registration Statement declared
effective by the SEC (such obligation, arising solely under clause (ii) above,
to have filed a Shelf Registration Statement shall be deemed satisfied with
respect to any Holder upon consummation of the Exchange Offer with respect to
such Holder). The Company and the Guarantor agree to use their best efforts to
keep the Shelf Registration Statement continuously effective until the third
anniversary of the Closing Date or such shorter period that will terminate when
all of the Registrable Securities covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement. The Company and the
Guarantor further agree to supplement or amend the Shelf Registration Statement
if required by the rules, regulations or instructions applicable to the
registration form used by the Company and the Guarantor for such Shelf
Registration Statement or by the 1933 Act or by any other rules and regulations
thereunder for shelf registration or if reasonably requested by a Holder with
respect to information relating to such Holder, and to use their best efforts to
cause any such amendment to become effective and such Shelf Registration
Statement to become usable as soon as thereafter practicable. The Company and
the Guarantor agree to furnish to the Holders of Registrable Securities copies
of any such supplement or amendment promptly after its being used or filed with
the SEC.
31
7
(c) The Company and the Guarantor shall pay all Registration Expenses
in (c) connection with the registration pursuant to Section 2(a) or Section
2(b). Each Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective unless it has been declared effective by
the SEC; provided, however, that, if, after it has been declared effective, the
offering of Registrable Securities pursuant to a Shelf Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Registration Statement
will be deemed not to have become effective during the period of such
interference until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume. As provided for in the Indenture, in
the event the Exchange Offer is not consummated and the Shelf Registration
Statement is not declared effective on or prior to January 30, 1997, the
interest rate on the Securities will increase by 0.5% to 12 5/8% per annum. If
such Exchange Offer IS not consummated and a Shelf Registration Statement is not
declared effective on or prior to July 30, 1997, the rate of interest will
increase by an additional 0.5% per annum to 13 1/8% per annum. Upon consummation
of the Exchange Offer or the effectiveness of the Shelf Registration Statement,
as the case may be, the rate of interest will decrease to the original rate of
interest of 12 1/8% per annum. If a Shelf Registration Statement is required
solely by the matters referred to in clause (iii) of the first sentence of
Section 2(b). such increase in interest rate shall be payable only to the
Placement Agents. with respect to Notes held by them, and only with respect to
any period (after January 30, 1997) during which such Shelf Registration
Statement is not effective.
(e) Without limiting the remedies available to the Placement Agents and
the Holders, the Company and the Guarantor acknowledge that any failure by the
Company and the Guarantor to comply with their obligations under Section 2(a)
and Section 2(b) hereof may result in material irreparable injury to the
Placement Agents or the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, the Placement Agents or any Holder may
obtain such relief as may be required to specifically enforce the Company's and
the Guarantor's obligations under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures.
In connection with the obligations of the Company and the
Guarantor with respect to the Registration Statements pursuant to Section 2(a)
and Section 2(b) hereof, the Company and the Guarantor shall as expeditiously as
possible:
32
8
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the 1933 Act. which form (x) shall be selected by the
Company and the Guarantor and (y) shall. in the case of a Shelf Registration. be
available for the sale of the Registrable Securities by the selling Holders
thereof and available (z) shall comply as to form in all material respects
with the requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith. and use their best
efforts to cause such Registration Statement to become effective and remain
effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period and cause each
Prospectus to be supplemented by any required prospectus supplement and, as so
supplemented, to be filed pursuant to Rule 424 under the 1933 Act: to keep each
Prospectus current during the period described under Section 4(3) and Rule 174
under the 1933 Act that is applicable to transactions by brokers or dealers with
respect to the Registrable Notes or Exchange Notes:
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, to counsel for the Placement Agents, to counsel for the
Holders and to each Underwriter of an Underwritten Offering of Registrable
Securities, if any, without charge, as many copies of each Prospectus. including
each preliminary Prospectus, and any amendment or supplement thereto and such
other documents as such Holder or Underwriter may reasonably request, in order
to facilitate the public sale or other disposition of the Registrable
Securities; and the Company and the Guarantor consent to the use of such
Prospectus and any amendment or supplement thereto in accordance with applicable
law by each of the selling Holders of Registrable Securities and any such
Underwriters in connection with the offering and sale of the Registrable
Securities covered by and in the manner described in such Prospectus or any
amendment or supplement thereto in accordance with applicable law:
(d) use their best efforts to register or qualify the Exchange and
Registrable Securities under all applicable state securities or "blue sky" laws
of such jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement shall reasonably request in writing by the time the
applicable Registration Statement is declared effective by the SEC, to cooperate
with such Holders IN connection with any filings required to be made with the
National Association of Securities Dealers, Inc., and do any and all other acts
and things which may be reasonably necessary or advisable to enable such Holder
to consummate the disposition in each such jurisdiction of such Exchange and
Registrable Securities owned by such Holder, provided, however, that neither the
Company nor the Guarantor shall be required to
33
9
(i) qualify as a foreign corporation or as a dealer in securities in
any jurisdiction where it would not otherwise be required to qualify but for
this Section 3(d), (ii) file any general consent to service of process or (iii)
subject itself to taxation in any such jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities. counsel for the Holders and counsel for the Placement
Agents promptly and, if requested by any such Holder or counsel, confirm such
advice in writing (i) when a Registration Statement has become effective and
when any post-effective amendment thereto has been filed and becomes effective,
(ii) of any request by the SEC or any state securities authority for amendments
and supplements to a Registration Statement and Prospectus or for additional
information after the Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable Securities
covered thereby, the representations and warranties of the Company and the
Guarantor contained in any underwriting agreement, securities sales agreement or
other similar agreement, if any, relating to the offering cease to be true and
correct in all material respects or if the Company and the Guarantor receive any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose, (v) of the happening of any event during the period
a Shelf Registration Statement is effective which makes any statement made in
such Registration Statement or the related Prospectus untrue in any material
respect or which requires the making of any changes in such Registration
Statement or Prospectus in order to make the statements therein not misleading
and (vi) of any determination by the Company and the Guarantor that a
post-effective amendment to a Registration Statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment and provide immediate notice to each Holder of the withdrawal of
any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates
34
10
representing Registrable Securities to be sold and not bearing any restrictive
legends and enable such Registrable Securities to be in such denominations
(consistent with the provisions of the Indenture) and registered in such names
as the selling Holders may reasonably, request at least two business days
prior to the closing of any sale of Registrable Securities;
(i) in the case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 3(e)(v) hereof, use their best efforts to prepare
and file with the SEC a supplement or post-effective amendment to a Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities, such Prospectus will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The Company and the Guarantor agree to
notify the Holders to suspend use of the Prospectus as promptly as practicable
after the occurrence of such an event, and the Holders hereby agree to suspend
use of the Prospectus until the Company and the Guarantor have amended or
supplemented the Prospectus to correct such misstatement or omission;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or any document which is to be
incorporated by reference into a Registration Statement or a Prospectus after
initial filing of a Registration Statement, provide copies of such document to
the Placement Agents and their counsel (and, in the case of a Shelf Registration
Statement, the Holders and their counsel) and make such of the representatives
of the Company and the Guarantor as shall be reasonably requested by the
Placement Agents or their counsel (and, in the case of a Shelf Registration
Statement, the Holders or their counsel) available for discussion of such
document, and shall not at any time file or make any amendment to the
Registration Statement, any Prospectus or any amendment of or supplement to a
Registration Statement or a Prospectus or any document which is to be
incorporated by reference into a Registration Statement or a Prospectus, of
which the Placement Agents and their counsel (and, in the case of a Shelf
Registration Statement, the Holders and their counsel) shall not have previously
been advised and furnished a copy or to which the Placement Agents or their
counsel (and, in the case of a Shelf Registration Statement, the Holders or
their counsel) shall reasonably object;
(k) obtain a CUSIP number for all Exchange Securities, as the case may
be, not later than the effective date of a Registration Statement;
(l) cause the Indenture to be qualified under the Trust Indenture Act
of 1939, as amended (the "TIA"), in connection with the registration of the
Exchange
35
11
Securities or Registrable Securities, as the case may be, cooperate with the
Trustee and the Holders to effect such changes to the Indenture as may be
required for the Indenture to be so qualified in accordance with the terms of
the TIA and execute, and use their best efforts to cause the Trustee to execute,
all documents as may be required to effect such changes and all other forms and
documents required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for inspection
by a representative of the Holders of the Registrable Securities, any
Underwriter participating in any disposition pursuant to such Shelf Registration
Statement, and attorneys and accountants designated by the Holders, at
reasonable times and in a reasonable manner, all financial and other records,
pertinent documents and properties of the Company and the Guarantor, and cause
the respective officers, directors and employees of the Company and the
Guarantor to supply all information reasonably requested by any such
representative, Underwriter, attorney or accountant in connection with a Shelf
Registration Statement;
(n) in the case of a Shelf Registration, use their best efforts to
cause all Registrable Securities to be listed on any securities exchange or any
automated quotation system on which the Securities are then listed if requested
by the Majority Holders, to the extent such Registrable Securities satisfy
applicable listing requirements;
(o) use their best efforts to cause the Exchange Securities or
Registrable Securities, as the case may be, to be rated by two nationally
recognized statistical rating organizations (as such term is defined in Rule
436(g)(2) under the ▇▇▇▇ ▇▇▇);
(p) if reasonably requested by any Holder of Registrable Securities
covered by a Registration Statement, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment such information with respect to such
Holder as such Holder reasonably requests to be included therein and (ii) make
all required filings of such Prospectus supplement or such post-effective
amendment as soon as the Company and the Guarantor have received notification of
the matters to be incorporated in such filing; and
(q) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith (including
those requested by the Holders of a majority of the Registrable Securities being
sold) in order to expedite or facilitate the disposition of such Registrable
Securities including, but not limited to, an Underwritten Offering and in such
connection, (i) to the extent possible, make such representations and warranties
to the Holders and any Underwriters of such Registrable Securities with respect
to the business of the
36
12
Company and its subsidiaries, the Registration Statement, Prospectus
and documents incorporated by reference or deemed incorporated by
reference, if any, in each case, in form, substance and scope as are
customarily made by issuers to underwriters in underwritten offerings
and confirm the same if and when requested, (ii) obtain opinions of
counsel to the Company and the Guarantor (which counsel and opinions,
in form, scope and substance, shall be reasonably satisfactory to the
Holders and such Underwriters and their respective counsel) addressed
to each selling Holder and Underwriter of Registrable Securities,
covering the matters customarily covered in opinions requested in
underwritten offerings, (iii) obtain "cold comfort" letters from the
independent certified public accountants of the Company and the
Guarantor (and, if necessary, any other certified public accountant of
any subsidiary of the Company, or of any business acquired by the
Company and the Guarantor for which financial statements and financial
data are or are required to be included in the Registration Statement)
addressed to each selling Holder and Underwriter of Registrable
Securities, such letters to be in customary form and covering matters
of the type customarily covered in "comfort" letters in connection with
underwritten offerings, and (iv) deliver such documents and
certificates as may be reasonably requested by the Holders of a
majority in principal amount of the Registrable Securities being sold
or the Underwriters, and which are customarily delivered in
underwritten offerings, to evidence the continued validity of the
representations and warranties of the Company and the Guarantor made
pursuant to clause (i) above and to evidence compliance with any
customary conditions contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Company and
the Guarantor may require each Holder of Registrable Securities to furnish to
the Company and the Guarantor such information regarding the Holder and the
proposed distribution by such Holder of such Registrable Securities as the
Company and the Guarantor may from time to time reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder
agrees that, upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 3(e)(v) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to a
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof, and, if
so directed by the Company, such Holder will deliver to the Company (at its
expense) all copies in its possession, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice. The Company may give any such
notice only twice during any 365 day period and any such suspensions may not
exceed 30 days for each suspension and there may not be more than two
suspensions in effect during any 365 day period.
37
13
The Holders of Registrable Securities covered by a Shelf
Registration Statement who desire to do so may sell such Registrable Securities
in an Underwritten Offering. In any such Underwritten Offerings, the investment
banker or investment bankers and manager or managers (the "Underwriters") that
will administer the offering will be selected by the Majority Holders of the
Registrable Securities included in such offering.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Staff of the SEC has taken the position that any
broker-dealer that receives Exchange Securities for its own account in the
Exchange Offer in exchange for Securities that were acquired by such
broker-dealer as a result of market-making or other trading activities (a
"Participating Broker-Dealer"), may be deemed to be an "underwriter" within the
meaning of the 1933 Act and must deliver a prospectus meeting the requirements
of the 1933 Act in connection with any resale of such Exchange Securities.
The Company and the Guarantor understand that it is the Staff's
position that if the Prospectus contained in the Exchange Offer Registration
Statement includes a plan of distribution containing a statement to the above
effect and the means by which Participating Broker-Dealers may resell the
Exchange Securities, without naming the Participating Broker-Dealers or
specifying the amount of Exchange Securities owned by them, such Prospectus may
be delivered by Participating Broker-Dealers to satisfy their prospectus
delivery obligation under the 1933 Act in connection with resales of Exchange
Securities for their own accounts, so long as the Prospectus otherwise meets the
requirements of the 1933 Act.
(b) In light of the above, notwithstanding the other provisions
of this Agreement, the Company and the Guarantor agree that the provisions of
this Agreement as they relate to a Shelf Registration shall also apply to an
Exchange Offer Registration to the extent, and with such reasonable
modifications thereto as may be, reasonably requested by the Placement Agents or
by one or more Participating Broker-Dealers, in each case as provided in clause
(ii) below, in order to expedite or facilitate the disposition of any Exchange
Securities by Participating Broker-Dealers consistent with the positions of the
Staff recited in Section 4(a) above, provided that:
(i) the Company and the Guarantor shall not be required to amend
or supplement the Prospectus contained in the Exchange Offer
Registration Statement, as would otherwise be contemplated by Section
3(i), for a period exceeding 180 days after the last Exchange Date (as
such period may be extended pursuant to the penultimate paragraph of
Section 3 of this Agreement) and Participating Broker-Dealers shall not
be authorized by the Company and the Guarantor to deliver and shall not
deliver such Prospectus after such period in connection with the
resales contemplated by this Section 4; and
38
14
(ii) the application of the Shelf Registration procedures set
forth in Section 3 of this Agreement to an Exchange Offer Registration,
to the extent not required by the positions of the Staff of the SEC or
the 1933 Act and the rules and regulations thereunder, will be in
conformity with the reasonable request to the Company and the
Guarantor by the Placement Agents or with the reasonable request in
writing to the Company and the Guarantor by one or more broker-dealers
who certify to the Placement Agents, the Company and the Guarantor in
writing that they anticipate that they will be Participating
Broker-Dealers; and provided further that, in connection with such
application of the Shelf Registration procedures set forth in Section 3
to an Exchange Offer Registration, the Company and the Guarantor shall
be obligated (x) to deal only with one entity representing the
Participating Broker-Dealers, which shall be ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated unless it elects not to act as such representative. (y) to
pay the fees and expenses of only one counsel representing the
Participating Broker-Dealers. which shall be counsel to the Placement
Agents unless such counsel elects not to so act and (z) to cause to be
delivered only one, if any, "cold comfort" letter with respect to the
Prospectus in the form existing on the last Exchange Date and with
respect to each subsequent amendment or supplement, if any, effected
during the period specified in clause (i) above.
(c) The Placement Agents shall have no liability to the Company,
the Guarantor or any Holder with respect to any request that it may make
pursuant to Section 4(b) above.
5. Indemnification and Contribution.
(a) The Company and the Guarantor agree to indemnify and hold
harmless the Placement Agents. each Holder and each person, if any, who controls
the Placement Agents or any Holder within the meaning of either Section 15 of
the 1933 Act or Section 20 of the 1934 Act. or is under common control with. or
is controlled by, the Placement Agents or any Holder, from and against all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by the Placement Agents, any Holder
or any such controlling or affiliated person 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 any Registration
Statement (or any amendment thereto) pursuant to which Exchange Securities or
Registrable Securities were registered under the 1933 Act, including all
documents incorporated therein by reference. or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading. or caused by any
untrue statement or alleged untrue statement of a material fact contained in any
Prospectus (as amended or supplemented if the Company and the Guarantor 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 light of the circumstances
39
15
under which they were made not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to the Placement Agents or any Holder furnished to the Company and the Guarantor
in writing by the Placement Agents or any Holder expressly for use therein;
provided, however, that the foregoing indemnity shall not inure to the benefit
of any of the foregoing parties from whom the person asserting any such losses,
claims, damages or liabilities purchased the Securities or Exchange Securities,
or any person controlling any of the foregoing parties, if such party failed to
send or give a copy of the Prospectus (as amended or supplemented if the Company
shall have furnished such amendments or supplements thereto) to such person
within the time required by the Securities Act (and if so required), and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such losses, claims, damages or liabilities. In connection with any
Underwritten Offering permitted by Section 3, the Company and the Guarantor will
also indemnify the Underwriters, if any, selling brokers, dealers and similar
securities industry professionals participating in the distribution, their
officers and directors and each Person who controls such Persons (within the
meaning of the Securities Act and the Exchange Act) to the same extent as
provided above with respect to the indemnification of the Holders, if requested
in connection with any Registration Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify
and hold harmless the Company and the Guarantor, the Placement Agents and the
other selling Holders, and each of their respective directors, officers who sign
the Registration Statement and each Person, if any, who controls the Company and
the Guarantor, the Placement Agents and any other selling Holder within the
meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act to
the same extent as the foregoing indemnity from the Company and the Guarantor to
the Placement Agents and the Holders, but only with reference to information
relating to such Holder furnished to the Company and the Guarantor in writing by
such Holder expressly for use in any Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or paragraph (b) above,
such person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing 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
40
16
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 connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (a) the fees and expenses of
more than one separate firm (in addition to any local counsel) for the Placement
Agents and for all Holders and all persons, if any, who control the Placement
Agents and any Holders within the meaning of either Section 15 of the 1933 Act
or Section 20 of the 1934 Act, unless the Placement Agents determine in their
sole discretion that such a joint representation of the Placement Agents and the
Holders would involve differences or potential differences that render such
joint representation inadvisable, in which case the indemnifying party shall not
be responsible for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Holders and all persons, if any, who
control any Holders within the meaning of either Section 15 of the 1933 Act or
Section 20 of the 1934 Act and (ii) the fees and expenses of more than one
separate firm (in addition to any local counsel) for the Placement Agents and
all persons, if any, who control the Placement Agents within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 1934 Act, and (b) the
fees and expenses of more than one separate firm (in addition to any local
counsel) for the Company and the Guarantor, their directors, their officers who
sign the Registration Statement and each person, if any, who controls the
Company and the Guarantor within the meaning of either such Section, and that
all such fees and expenses shall be reimbursed as they are incurred. In such
case involving the Placement Agents and persons who control the Placement
Agents, such firm shall be designated in writing by the Placement Agents. In
such case involving the Holders and such persons who control Holders, such firm
shall be designated in writing by the Majority Holders. In all other cases, such
firm shall be designated by the Company and the Guarantor. 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 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party for such fees
and expenses of counsel 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, effect any settlement of any pending or threatened
proceeding in respect of which such indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
41
17
(d) If the indemnification provided for in paragraph (a) or
paragraph (b) of this Section 5 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities. then each
indemnifying party under such paragraph, 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 in such proportion as is appropriate to reflect the relative fault
of the indemnifying party or parties on the one hand and of the indemnified
party or parties 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 fault of the
Company and the Guarantor and the Holders 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 and the Guarantor or by the Holders and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Holders' respective
obligations to contribute pursuant to this Section 5(d) are several in
proportion to the respective number of Registrable Securities of such Holder
that were registered pursuant to a Registration Statement.
(e) The Company and the Guarantor and each Holder agree that it
would not be just or equitable if contribution pursuant to this Section 5 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 paragraph (d)
above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in paragraph (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 5. no Holder shall be required to indemnify or
contribute any amount in excess of the amount by which the total price at which
Registrable Securities were sold by such Holder exceeds the amount of any
damages that such Holder 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 5 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.
The indemnity and contribution provisions contained in this
Section 5 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of the Placement Agents, any Holder or any person controlling the Placement
Agents or any Holder, or by or on behalf of the Company and the Guarantor, their
officers or directors or any person controlling the
42
18
Company and the Guarantor, acceptance of any of the Exchange Securities and (iv)
any sale of Registrable Securities pursuant to a Shelf Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. The Company and the Guarantor
have not entered into, and on or after the date of this Agreement will not enter
into, any agreement which is inconsistent with the rights granted to the Holders
of Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Company's and the Guarantor's other issued and outstanding securities under
any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company and the Guarantor have obtained the written
consent of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Securities affected by such amendment, modification,
supplement, waiver or consent; provided, however, that no amendment,
modification, supplement, waiver or consents to any departure from the
provisions of Section 5 hereof shall be effective as against any Holder of
Registrable Securities unless consented to in writing by such Holder.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 6(c), which address initially is, with respect to the Placement Agents,
the address set forth in the Placement Agreement; and (ii) if to the Company and
the Guarantor, initially at the Company's address set forth in the Placement
Agreement and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 6(c).
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered, five
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the second succeeding business day if timely delivered to an air courier
guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the person giving the same to the Trustee, at
the address specified in the Indenture.
43
19
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Placement Agreement. If any
transferee of any Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement and such person shall be entitled to receive the benefits hereof. The
Placement Agents (in their capacity as Placement Agents) shall have no liability
or obligation to the Company and the Guarantor with respect to any failure by a
Holder to comply with, or any breach by any Holder of, any of the obligations of
such Holder under this Agreement.
(e) Purchases and Sales of Notes. The Company and the Guarantor
shall not, and shall use their best efforts to cause their affiliates (as
defined in Rule 405 under the ▇▇▇▇ ▇▇▇) not to, purchase and then resell or
otherwise transfer any Notes.
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and the
Guarantor, on the one hand, and the Placement Agents, on the other hand, and
shall have the right to enforce such agreements directly to the extent they
deem such enforcement necessary or advisable to protect their rights or the
rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. This Agreement shall be governed by the laws
of the State of New York.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
44
20
(k) Submission to Jurisdiction; Service of Process. Each of the
Company and the Guarantor hereby (i) acknowledges that it has irrevocably
designated and appointed CT Corporation System, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (together with any successor, the "Process Agent"), as authorized
agent upon which process may be served in any suit, action or proceeding arising
out of or relating to this Agreement or the transactions contemplated herein or
brought under federal or state securities laws that may be instituted in any
federal or state court in the State of New York, sitting in the city of New
York, and acknowledges that the Process Agent has accepted such designation,
(ii) agrees that service of process upon the Process Agent and written notice of
such service to the Company or the Guarantor, as the case may be (mailed or
delivered to the Chief Executive Officer of the Company at its principal office
at ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇), shall be deemed in every
respect effective service of process upon the Company or the Guarantor, as the
case may be, in any such suit, action or proceeding and (iii) agrees to take any
and all action, including the execution and filing of any and all such
documents and instruments as may be necessary to continue such designation and
appointment of the Process Agent in full force and effect so long as any of the
Notes shall be outstanding. Each of the Company and the Guarantor hereby agrees
to submit to the nonexclusive jurisdiction of any such federal or state court in
the State of New York in any such suit, action or proceeding arising out of or
relating to this Agreement or the transactions contemplated herein and hereby
waives to the fullest extent permitted by law any defense to the institution or
continuance of any such suit, action or proceeding based upon lack of proper
venue, inconvenient forum or similar grounds.
(l) Waiver of Immunity. To the extent that the Company or the
Guarantor has or hereafter may acquire any immunity from jurisdiction of any
court or from any legal process (whether through service of notice, attachment
prior to judgment, attachment in aid of execution, execution or otherwise) with
respect to itself or its property, each of them hereby irrevocably waives such
immunity in respect of their obligations under this Agreement to the fullest
extent permitted by law.
45
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
IMPSAT CORPORATION
By _____________________
Name:
Title:
By _____________________
Name:
Title:
IMPSAT S.A.
By _____________________
Name:
Title:
Confirmed and accepted as of
the date first above written:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By _____________________
Name:
Title:
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By _____________________
Name:
Title:
▇▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
555 TWELFTH STREET, N.W. DENVER
WASHINGTON, D.C. 20004-1202 LOS ANGELES
LONDON
(▇▇▇) ▇▇▇-▇▇▇▇
FACSIMILE (▇▇▇) ▇▇▇-▇▇▇▇
July 30, 1996
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as special United States counsel to IMPSAT Corporation
(the "Company") and to IMPSAT S.A. (the "Guarantor") in connection with the
Placement Agreement, dated as of July 25, 1996 (the "Placement Agreement"),
among the Company, the Guarantor, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and Bear,
▇▇▇▇▇▇▇ & Co. Inc. relating to the issue and sale of the Company's $125,000,000
12 1/8% Senior Guaranteed Notes due 2003 (the "Notes"). The Notes will be issued
pursuant to an Indenture dated as of July 30, 1996 (the "Indenture") among the
Company, the Guarantor and The Bank of New York. Capitalized terms used herein
and not otherwise defined shall have the meanings set forth in the Placement
Agreement.
This opinion is furnished to you pursuant to Section 4(c) of the
Placement Agreement.
In connection with this opinion, we have examined the following
documents:
(i) the Placement Agreement, executed by the parties thereto;
(ii) the Registration Rights Agreement, executed by the parties
thereto;
47
▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, et al.
July 30, 1996
Page 2
(iii) The Indenture, executed by the parties thereto, including
the forms of the Notes and other exhibits thereto (the Indenture,
together with the Placement Agreement, the Registration Rights
Agreement and the Notes, being referred to herein as the "Documents");
(iv) the global Note representing the Notes;
(v) the letter from the Process Agent accepting appointment as
agent for service of process for the Company and the Guarantor in the
State of New York, United States of America (the "Process Agent
Acceptance"); and
(vi) the Offering Memorandum dated July 25, 1996, relating to
the Notes.
We have further examined such other records, agreements,
certificates and other documents as we have considered appropriate for
purposes of this opinion.
We have assumed for purposes of this opinion: (a) that each of
the Documents and the Process Agent Acceptance and all other documents
to be executed and delivered thereunder have been duly authorized by
the appropriate party or parties thereto (other than the Company), that
each of the Documents and the Process Agent Acceptance and all other
documents to be executed and delivered thereunder have been duly
executed and delivered thereunder by the appropriate party or parties
thereto (other than the Company and the Guarantor) and that each such
party (other than the Company) has adequate power, authority and legal
right to enter into the Documents and the Process Agent Acceptance to
which it is a party and to perform its obligations under each of the
Documents and the Process Agent Acceptance to which it is a party; (b)
the authenticity of all documents examined by us (and the completeness
of and conformity to the originals of any copies thereof submitted to
us) and the genuineness of all signatures; (c) the accuracy of the
certified English translation of each of the documents examined by us
the original of which is in the Spanish language; and (d) that under
the law of the Republic of Argentina, each of the Documents and all
other documents to be executed and delivered
48
▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, et al.
July 30, 1996
Page 3
thereunder have been duly executed and delivered by the Guarantor. We
have relied, as to factual matters, on the documents we have examined.
Based on the foregoing and subject to the qualifications,
assumptions and comments set forth below, we are of the opinion that:
1. The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware and has the corporate power and authority to own its property
and to conduct its business as described in the Final Memorandum;
2. The Placement Agreement has been duly authorized, executed
and delivered by the Company pursuant to the law of the State of New
York, and, to the extent applicable, to the law of the State of
Delaware;
3. The Indenture has been duly authorized, executed and
delivered by the Company and has been duly executed and delivered by
the Guarantor pursuant to the law of the State of New York, and, to the
extent applicable, to the law of the State of Delaware, and is a valid
and binding obligation of the Company and the "Guarantor, enforceable
against the Company and the Guarantor in accordance with its terms;
4. The Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and has been duly executed and
delivered by the Guarantor pursuant to the law of the State of New
York, and, to the extent applicable, to the law of the State of
Delaware, and is a valid and binding obligation of the Company and the
Guarantor, enforceable against the Company and the Guarantor in
accordance with its terms;
5. The Notes have been authorized by the Company, and when
executed, authenticated and delivered in accordance with the terms of
the Indenture and paid for in accordance with the terms of the
Placement Agreement, will constitute valid and binding obligations of
the Company, enforceable against the Company in accordance with their
terms and entitled to the benefits of the Indenture;
49
▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, et al.
July 30, 1996
Page 4
6. The execution and delivery by the Company of the Placement
Agreement, the Indenture, the Registration Rights Agreement and the
Notes, the performance by the Company of its obligations under the
Documents (including the issuance and sale of the Notes), and the
execution of the Placement Agreement, the Indenture and the
Registration Rights Agreement by the Guarantor will not result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, (a) the Certificate of Incorporation or Bylaws of the
Company, (b) to our knowledge, any statute, rule, regulation or order
of general applicability of any United States federal, New York or
Delaware governmental agency, body or court, (c) to our knowledge, any
judgment, decree or order of any United States federal, New York or
Delaware governmental agency, body or court or (d) any of the
agreements or instruments listed in Schedule 1 hereto;
7. No consent, approval, authorization or order of, or
qualification with, any court or governmental agency or body of the
United States, New York or Delaware is required for the performance by
the Company and the Guarantor of their respective obligations under the
Documents or the issuance, sale and delivery of the Notes, except in
each case as may be required by the securities or Blue Sky laws of the
various states of the United States in connection with the offer and
sales of the Notes;
8. After reasonable inquiry, we are not aware of any legal or
governmental proceedings pending or threatened against the Company or
any of its subsidiaries or against any of the Company's or its
subsidiaries respective properties other than proceedings fairly
summarized in the Final Memorandum and proceedings which we believe are
not likely 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 Documents or to consummate the
transactions contemplated by the Documents;
9. The Company is not an "investment company" within the meaning
of the United States Investment Company Act of 1940, as amended (the
"Investment Company Act"), and the offer and sale of the Notes in the
manner
50
▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, et al.
July 30, 1996
Page 5
contemplated by Placement Agreement does not require registration of
the Company as an "investment company" under the Investment Company
Act;
10. The statements set forth in the Final Memorandum under the
captions "Description of the Notes and "Private Placement" (except for
the ultimate paragraph thereunder, as to which we express no opinion),
insofar as such statements constitute a summary of the legal matters
and documents referred to therein, accurately summarize such matters
and documents in all material respects;
11. The statements set forth in the Final Memorandum under the
caption "Business Operations in Other Countries - IMPSAT USA -
Regulation," insofar as such statements constitute matters of law,
accurately describe the legal matters referred to therein;
12. The discussion set forth in the Final Memorandum under the
caption "Certain United States Federal Income Tax Considerations," to
the extent such discussion constitutes matters of law or legal
conclusions, accurately describes the material United States federal
income tax consequences of an investment in the Notes; and
13. No registration of the Notes under the United States
Securities Act of 1933, as amended, is required for the offering or
sale of the Notes to the Placement Agents or in connection with the
initial resale of such Notes by the Placement Agents in accordance with
Section 6 of the Placement Agreement, it being understood that no
opinion is expressed as to any subsequent resale of any Notes in the
manner contemplated by the Placement Agreement. In connection with the
rendering of this opinion, we have assumed the veracity and accuracy of
the representations and agreements of the Placement Agents contained in
Section 6 of the Placement Agreement and the representations and
warranties of the Company contained in Sections 1(l) and (q) and
Sections 5(f), (g) and (h) of the Placement Agreement.
The foregoing opinions are subject to the following assumptions
and qualifications:
51
▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, et al.
July 30, 1996
Page 6
(a) Our opinions in paragraphs 2 through 5 above are subject to
general principles of equity (regardless of whether considered in a
proceeding in equity or at law). Such principles of equity are of
general application, and in applying such principles a court, among
other things, might not allow a creditor to accelerate the maturity of
a debt upon the occurrence of default deemed immaterial by such court
or might decline to order that a covenant be performed. Such principles
applied by a court might include, among other things, a requirement
that creditors act with reasonableness and good faith. Such a
requirement might be applied, among other situations, to the provisions
of any Document requiring the payment of an indemnity or compensation
to any party thereto or purporting to authorize conclusive
determinations by any party thereto;
(b) Our opinions contained in paragraphs 2 through 5 above are
subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and to the possible judicial application of foreign laws or
governmental action affecting the enforcement of creditors' rights;
(c) We express no opinion as to the enforceability of any
arrangement under the Registration Rights Agreement as to
indemnification for or contribution with respect to liabilities arising
under the federal securities laws of the United States or the
securities law of any state of the United States;
(d) We express no opinion as to whether courts other than state
or federal courts in the State of New York would give effect to the
choice of New York law governing the Documents;
(e) With respect to our opinion in paragraph 3 above as it
relates to the Guarantee contained in the Indenture, we express no
opinion with respect to the enforceability of the Guarantee to the
extent that the obligations of the Company being guaranteed are
unenforceable due to illegality or the fact that the Trustee or the
Holders had voluntarily released the Company's liability with respect
to obligations subject to the Guarantee or due to any other
circumstance constituting a defense available to the Company;
52
▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, et al.
July 30, 1996
Page 7
(f) With respect to our opinion in paragraph 6(d) above as it
relates to the Indenture dated as of November 29, 1993, among the
Guarantor, The Bank of New York, as Trustee, Co-Registrar and Principal
Paying Agent, Banque Internationale a Luxembourg S.A., as Paying Agent
and Transfer Agent and The Bank of New York, S.A., as Registrar and
Paying Agent, relating to the Guarantor's U.S.$30,000,000 9.5%
Negotiable Obligations due 1996, we have relied upon a certificate of
the Guarantor, a copy of which is attached hereto as Annex A, regarding
the satisfaction of the conditions precedent to the Defeasance
Agreement dated as of July 25, 1996, between the Guarantor and the Bank
of New York, as Trustee.
(g) Insofar as our opinions in paragraphs 2 through 5 above
relate to the provisions of the Documents regarding jurisdiction,
service of process and venue (and the defense of an inconvenient
forum), such opinions are limited to: (i) jurisdiction and service of
process in respect of any action arising out of or related to the
Placement Agreement, the Registration Rights Agreement, the Indenture
or the Notes (each, a "Related Proceeding") brought, or sought to be
brought, in the Supreme Court of the State of New York or the United
States District Court, in each case sitting in the City of New York;
and (ii) the defense of an inconvenient forum in a Related Proceeding
brought, or sought to be brought, in the Supreme Court of the State of
New York, sitting in the City of New York (but not in the United States
District Court);
(h) The foregoing opinion is limited to the law of the State of
New York, the State of Delaware and the federal law of the United
States of America, and we do not express any opinion herein concerning
any other law (including, without limitation any law of any
jurisdiction other than the State of New York or the State of Delaware
wherein any party to any of the Documents may be located or wherein
enforcement of any of the Documents may be sought). We are not
qualified to practice Argentine law. To the extent that the law of the
Republic of Argentina may be relevant to our opinions in paragraphs 2
through 5 above, we have relied upon the opinion of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇,
Argentine counsel to the Company and the Guarantor, and the foregoing
opinion is subject to the limitations and exceptions set
53
▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, et al.
July 30, 1996
Page 8
forth in such opinion. With your consent, our reliance upon such
opinion is without our having made any independent investigation with
respect thereto.
This opinion speaks only as of its date. In the absence of a
specific request, we assume no obligation to supplement or update this
opinion as of any date occurring hereafter. This opinion is limited to
the matters on which you have requested our opinion, and this opinion
should not be read as expressing any opinion except on the matters
expressly set forth herein. This opinion may not be relied upon by any
person other than the addressees hereof, the Company and the Guarantor.
Very truly yours,
54
▇▇▇▇▇▇ & ▇▇▇▇▇▇
Schedule 1
----------
1. Subscription Agreement dated as of November 23, 1993, among IMPSAT
S.A., ▇▇▇▇▇▇ Brothers International, Banque Indosuez and Banco ▇▇
▇▇▇▇▇▇▇ y Buenos Aires S.A.
2. Indenture dated as of November 29, 1993, among IMPSAT S.A., The
Bank of New York, as Trustee, Co-Registrar and Principal Paying
Agent, Banque Internationale a Luxembourg S.A., as Paying Agent and
Transfer Agent and The Bank of New York, S.A., as Registrar and
Paying Agent.
3. IMPSAT S.A. U.S.$30,000,000 9.5% Negotiable Obligations due 1996.
4. Global Commercial Paper Program Agreement dated as of October 27,
1994, among IMPSAT S.A., ▇▇▇▇▇▇ Brothers International (Europe) and
▇▇▇▇▇▇ Brothers Inc.
5. Issuing and Paying Agency Agreement dated as of October 27, 1994,
among IMPSAT S.A., The Bank of New York and The Bank of New York
S.A.
6. Loan and Repayment Agreement dated April 9, 1996, between IMPSAT
S.A. and Credit Lyonnais.
7. U.S.$498,474.52 Promissory Note dated January 9, 1995 between
IMPSAT S.A. and Citibank, N.A.
8. U.S.$1,663,871.58 Promissory Note dated December 19, 1994 between
IMPSAT S.A. and Citibank, N.A.
9. U.S.$1,647,978.46 Promissory Note dated November 25, 1994 between
IMPSAT S.A. and Citibank, N.A.
10. U.S.$1,789,257.41 Promissory Note dated October 26, 1994 between
IMPSAT S.A. and Citibank, N.A.
11. Share Retention Agreement dated as of March 2, 1994, among IMPSAT
S.A., Colinvertel S.A., Corporacion Impsa S.A., Compania
Suramericana de
55
▇▇▇▇▇▇ & ▇▇▇▇▇▇
Seguros S.A., Compania Suramericana de Capitalizacion and the Inter-American
Investment Corporation, as amended by the Assignment, Assumption, Release and
Amendment Agreement dated as of November 24, 1994, among IMPSAT S.A.,
Colinvertel S.A., Corporacion Impsa S.A., Compania Suramericana de Seguros
S.A., Compania Suramericana de Capitalizacion, IMPSAT Corporation and the
Inter-American Investment Corporation.
56
July 30, 1996
▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Building
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
RE: 12-1/8% Senior Guaranteed Notes due 2003
----------------------------------------
Ladies and Gentlemen:
Reference is made to:
(i) the Placement Agreement dated as of July 25, 1996, among IMPSAT
Corporation, IMPSAT S. A. (the "Guarantor"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated and Bear, ▇▇▇▇▇▇▇ & Co. Inc., (the "Placement Agreement"),
relating to the issue and sale of the Company's $125,000,000 12-1/8% Senior
Guaranteed Notes due 2003;
(ii) the Indenture dated as of November 29, 1993, among the Guarantor, The
Bank of New York, as Trustee, Co-Registrar and Principal Paying Agent,
Banque Internationale a Luxembourg S. A., as Paying Agent and Transfer
Agent and The Bank of New York, S. A., as Registrar and Paying Agent,
relating to the Guarantor's U.S. $30,000,000 9.5% Negotiable Obligations
due 1996, (the "Eurobond Indenture");
(iii) the First Supplemental Indenture dated as of July 25, 1996 between
the Guarantor and The Bank of New York, as Trustee, Co-Registrar and
Principal Paying Agent, relating to the Eurobond Agreement (the "First
Supplemental Indenture"); and
(iv) the Defeasance Agreement dated as of July 25, 1996 between the
Guarantor and The Bank
57
of New York, as Trustee under the Eurobond Indenture and the First
Supplemental Indenture (the "Defeasance Agreement").
IMPSAT S. A. hereby certifies that the conditions precedent to the
satisfaction and discharge of the Eurobond Indenture, as amended by the First
Supplemental Indenture, including the delivery to the Trustee on the payment
contemplated by Section 1 of the Defeasance Agreement, have been effected, and
accordingly the Eurobond Indenture, as amended by the First Supplemental
Indenture, has been satisfied and discharged.
You may rely on this certification in connection with rendering any
opinion in connection with the Placement Agreement.
Sincerely,
IMPSAT S. A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Manager of Treasury
58
[▇▇▇▇▇▇▇▇▇ y ▇▇▇▇ Abogados letterhead]
July 30, 1996.
Messrs
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Dear Sirs:
We have acted as Argentine counsel to IMPSAT S.A. (the "Company"), a
company incorporated under the laws of Argentina, and have acted in such
capacity in connection with (i) the issue and sale by IMPSAT CORPORATION, a
company incorporated under the laws of Delaware, U.S.A., of up to $125,000,000
principal amount of its 12-1/8% Senior Guaranteed Notes due 2003 (the "Notes"),
and (ii) the issue of a guarantee on the Notes on a senior unsecured basis by
IMPSAT S.A. (the "Guarantee"), pursuant to and subject to the terms and
conditions set forth in (a) a Placement Agreement, dated as of July 30, 1996
(the "Placement Agreement"), among IMPSAT CORPORATION, IMPSAT S.A., ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & CO INCORPORATED and the other several placement agents named in
Schedule I thereto; (b) an Indenture, dated as of July 30, 1996 (the
"Indenture"), among IMPSAT CORPORATION, IMPSAT S.A., THE BANK OF NEW YORK, as
trustee (the "Trustee"); and (c) a Registration Rights Agreement, dated as of
July 30, 1996 (the "Registration Rights Agreement"), among IMPSAT CORPORATION,
IMPSAT S.A., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO INCORPORATED and BEAR, ▇▇▇▇▇▇▇ & CO. INC.
59
As such counsel we have examined the originals, or copies identified to
our satisfaction, of such corporate records of IMPSAT S.A., and its
subsidiaries, such agreements and instruments, and such other documents as we
have deemed necessary as a basis for opinions hereinafter expressed. In such
examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity
with the originals of all documents submitted to us as copies.
We are qualified to practice in the jurisdiction of the city of Buenos
Aires, and the opinions stated herein are limited to the laws thereof and the
federal laws of Argentina.
Based upon the foregoing, and having regard of such legal
considerations as we deem relevant, we are of the opinion that:
(A) IMPSAT S.A. has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
organisation, has the corporate power and authority to own its property and to
conduct its business as described in the Final Memorandum, dated July 25, 1996
(the "Final Memorandum") and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries taken as a
whole;
(B) each subsidiary of IMPSAT S.A. has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction
of its organisation, has the corporate power and authority to own its property
and to conduct its business as described in the Final Memorandum and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on
the Company and its subsidiaries taken as a whole;
(C) the Placement Agreement has been duly authorized, executed and delivered by
IMPSAT S.A.
(D) the Guarantee has been duly authorized by IMPSAT S.A. and, when the
Indenture has been duly authorized, executed and delivered by IMPSAT S.A. and
assuming the Notes have been executed, authenticated and delivered and paid for
60
In accordance with the terms of the Placement Agreement, and assuming the
Guarantee is enforceable under New York state law, the Guarantee will be
enforceable against IMPSAT S.A. in accordance with its terms;
(E) the Registration Rights Agreement has been duly authorized, executed and
delivered by IMPSAT S.A., and assuming that the Registration Rights Agreement
is a valid and binding agreement of IMPSAT S.A. under the New York state law,
the Registration Rights Agreement will be enforceable against IMPSAT S.A. in
accordance with its terms;
(F) the Indenture has been duly authorized, executed and delivered by IMPSAT
S.A., and assuming that the Indenture has been duly authorized, executed and
delivered by the Company and is valid and binding agreement of IMPSAT S.A.
under the New York state law, the Indenture will be enforceable in accordance
with its terms;
(G) (i) the execution and delivery by IMPSAT S.A. of, and the performance by
IMPSAT S.A. of its obligations under, the Placement Agreement, the Indenture,
the Registration Rights Agreement and the Guarantee will not contravene (A) any
provision of applicable Argentine Law, (B) the certificate of incorporation or
by-laws of IMPSAT S.A., (C) to our knowledge, any agreement or other instrument
binding upon IMPSAT S.A. or any of its subsidiaries that is material to IMPSAT
S.A. and its subsidiaries, taken as whole, provided that the obligations of the
Company, under the loan agreements between IMPSAT S.A. and Inter American
Investment Corporation, dated as of March 14, 1991, and Banco de ▇▇▇▇▇▇▇ ▇.▇.,
dated as of October 31, 1995, as amended on May 2, 1996, respectively, are
terminated by payment with the proceeds of the Notes; or (D) to our knowledge,
any judgement, order or decree of any governmental body, agency or court having
jurisdiction over IMPSAT S.A. or any subsidiary, and (ii) no consent, approval,
authorization or order of, or qualification with any governmental body or
agency is required for the performance by Impsat S.A. of its obligations under
de Placement Agreement, the Indenture, the Registration Rights Agreement and
the Guarantee;
(H) After due inquiry, we do not know of any legal or governmental proceedings
pending or threatened to which IMPSAT S.A. or any of its subsidiaries is a
party or to which any of the properties of IMPSAT S.A. or any of its
subsidiaries is subject other than proceedings fairly summarized in all
material respects in the Final Memorandum and proceedings which we believe are
not likely to have a material adverse effect on Impsat S.A. and its
subsidiaries, taken as a whole, or on the power or ability of IMPSAT S.A. to
perform its obligations under the Placement Agreement, the Indenture, the
Registration Rights Agreement and the Guarantee or to consummate the
transactions contemplated by the Final Memorandum.
61
(I) Each of IMPSAT S.A. and its subsidiaries has all necessary certificates,
orders, permits, licenses, authorizations, consents and approval of and from,
and has made all declarations and filings with, all Argentine governmental
authorities, all self-regulatory organizations and all courts and tribunals, to
own, lease, license and use its properties and assets and to conduct its
business in the manner described in the Final Memorandum, and neither IMPSAT
S.A. nor any of its subsidiaries has received any notice of proceedings
relating to revocation or modification of any such certificates, orders,
permits, licenses, authorizations, consents, or approvals, nor is IMPSAT S.A.
or any of its subsidiaries in violation of, or in default under, any federal,
state, local, foreign supranational, national or regional law, regulation,
rule, decree, order or judgement applicable to IMPSAT S.A. or any of its
subsidiaries 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, except as described in the Final Memorandum; and
(J) The statements in the Final Memorandum under the caption "Risk Factors -
Government Regulation; Regulatory Uncertainty" and "Business - Description of
Country Operations - IMPSAT Argentina - Regulation", in each case insofar as
such statements constitute summaries of the Argentine legal matters, documents
or proceedings referred to therein, are accurate in all material respects and
fairly summarize all matters referred to therein.
(K) There are no restrictions (legal, contractual or otherwise) on the ability
of IMPSAT S.A. to declare and pay any dividend or make any payment or transfer
of property or assets to its stockholders other than those described in the
Final Memorandum (including, without limitation, the description of withholding
taxes contained therein) 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 its subsidiaries, taken as
a whole; and such descriptions, if any, fairly summarize such restrictions.
(L) The provisions in the Placement Agreement and the Indenture as to the
submission of IMPSAT S.A. to the jurisdiction of any federal or state court in
the State of New York in any action under the Placement Agreement and the
Indenture and the waivers of immunity contained in the Placement Agreement and
the Indenture, are each valid, binding and enforceable under Argentine law; and
judgement obtained under the Placement Agreement or the Indenture in any such
court shall be enforceable in Argentina without further review of the merits,
including, without limitation, any final judgement for payment of money
rendered by any such court, provided that; (i) the U.S. court had jurisdiction
over the original proceeding; (ii) the judgement is final and conclusive on the
merits and is
62
for a definite sum of money; (iii) the judgement does not contravene Argentine
public policy; (iv) the judgement is not for a tax, penalty or judgement arrived
at by doubling, trebling or otherwise multiplying a sum assessed as compensation
for the loss or damage sustained; (v) the judgement has not been obtained by
fraud; (vi) the defendant against whom the enforcement of the judgement is
sought was duly served with a summons in the original proceeding; and (vii) the
judgement is not contrary to a prior or simultaneous judgement of an Argentine
court.
(M) Neither IMPSAT S.A. nor any of its properties or assets has any immunity
from jurisdiction of any court or from any legal process (whether through
service or notice, attachment prior to judgement, attachment in aid of
execution, execution or otherwise).
(N) To ensure the legality, validity, enforceability, priority or admissibility
in evidence. In Argentina of the Placement Agreement, the Indenture or any other
document or instrument provided for therein, it is not necessary that the
Placement Agreement, the indenture or any another document or instrument
provided for therein be submitted to or recorded or filed with any court or
other authority in Argentina or that any tax or charge be paid in respect of the
Placement Agreement, the Indenture or any other document or instrument provided
for hereby or thereby (other than a court tax of up to 3% of the amount in
controversy imposed with respect to the institution of any judicial proceeding
to enforce in Argentina the Placement Agreement or the Indenture).
This opinion is subject to the following additional qualifications:
(i) The ability of the Company to perform obligations payable in non-Argentine
currency, and the ability of any person to remit out of Argentina the proceeds
of any judgement award in non-Argentine currency issued by a court in Argentina
will be subject to the exchange regulations which may be in effect at the time
of payment or of such remittance, no exchange restrictions being in place as of
the date hereof in connection therewith.
(ii) The recognition and enforcement of foreign judgements in Argentina is
conditioned as described in the Final Memorandum.
(iii) Nothing herein is to be taken as an indication that the remedy of an order
for specific performance or the issue of an injunction would be available in a
court of Argentina, if such remedies are available only at the discretion of the
courts.
(iv) The enforceability of IMPSAT S.A.'s obligations may be limited by
bankruptcy, insolvency or similar laws proceedings affecting creditors' rights
generally, and under such proceedings to the existence of reciprocity.
63
This opinion is furnished to you pursuant to Section 4(d) of the
Placement Agreement and may also be relied upon by the Bank of New York, as
Trustee under the Indenture, and ▇▇▇▇▇▇ & ▇▇▇▇▇▇, United States counsel to
IMPSAT S.A. Therefore this opinion may not be relied upon by any other person
or entity or used for any purpose and neither its contents nor its existence
may be disclosed without our prior written consent.
Very truly yours,
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
64
EXHIBIT D
[S.E. CONSULTORES ASOCIADOS LTDA. LETTERHEAD]
July 30, 1996
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
c/o Morgan ▇▇▇▇▇▇▇ and Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
------------------------------------------
Ladies & Gentlemen:
(A) IMPSAT S.A. ("IMPSAT COLOMBIA") has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the Republic of
Colombia, has the corporate power and authority to own its property and to
conduct its business as described in the Final Memorandum dated July 25, 1996
(the "Final Memorandum") and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a meterial adverse effect in Impsat Colombia and its subsidiaries as a
whole;
(B) IMPSAT COLOMBIA has all necessary certificates, orders, permits, licenses,
authorizations, consents and approvals of and from, and has made all
declarations and filings with, all Colombian governmental authorities, courts
and tribunals, to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Final Memornadum, and Impsat
Colombia has not received any notice of proceedings relating to revocation or
modification of any such certificates, odrers, permits, licenses,
authorizations, consents or approvals, nor is Impsat Colombia in violation of,
or in default under, any federal, state, local, foregoing supranational,
national or regional law, regulation, rule, decree, order or judgement
applicable to Impsat Colombia 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 operation of the Company and its
subsidiaries, taken as a whole, except as described in the Final Memorandum;
(C) The statements in the Final Memorandum under the caption "IMPSAT
COLOMBIA-REGULATION" insofar as such statements constitute summaries of the
Colombia legal matters, documents or proceedings referred to therein, are
accurate in all material respects and fairly summarize all matters referred to
therein, and
65
(D) There are no restrictions (legal, contractual or otherwise) on the ability
of IMPSAT COLOMBIA to declare and pay any dividends or make any payment or
transfer of property or ooooto to its stockholders other than those described
in the Final Memorandum (including, without limitation, the description of
withholding taxes contained therein) 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 its subsidiaries,
taken as a whole; and such descriptions, if any, fairly summarize such
restrictions.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Legal Representative
66
[▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ Y ▇▇▇▇▇ LETTERHEAD]
Exhibit E
July 30, 1996
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co. Incorporated
Bear ▇▇▇▇▇▇▇ & Co. Inc.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
In relation to ImpSatel del Ecuador, S.A. (ImpSat Ecuador), a wholly-owned
subsidiary of ImpSat Corporation, I am pleased to give you the following
opinion:
(A) ImpSat Ecuador has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
organization, has the corporate power and authority to own its property and to
conduct its business as described in the Final Memorandum dated July 25, 1996
(the "Final Memorandum"), and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company taken as a whole.
(B) ImpSat Ecuador has all necessary certificates, orders, permits,
licenses, authorizations, consents and approvals of and from, and has made all
declarations and filings with, all Ecuadorian governmental authorities, all
self-regulatory organizations, and all courts and tribunals, to own, lease,
license and use its properties and assets and to conduct it business in the
manner described in the Final Memorandum, and ImpSat Ecuador has not received
any notice of proceedings relating to revocation or modification of any such
67
2
[▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ Y ▇▇▇▇▇ LOGO]
certificates, orders, permits, licenses, authorizations, consents or approval,
and ImpSat Ecuador is not in default under any federal, state, local, foreign,
supranational, national or regional law, regulation, rule, decree, order or
judgment applicable to ImpSat Ecuador, 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 in the Final Memorandum.
(C) the statements in the Final Memorandum under the captions
"Business--Description of Country Operations--IMPSAT Ecuador-Regulation",
insofar as such statements constitute summaries of the legal matters in
Ecuador, documents or proceedings referred to therein, are accurate in all
material respects and fairly summarize all matters referred to therein;
(D) there are no restrictions (legal, contractual or otherwise) on the
ability of ImpSat Ecuador to declare and pay any dividends or make any payment
or transfer of property or assets to its stockholders other than those
described in the Final Memorandum (including, without limitation, the
description of withholding taxes contained therein), 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.
Very truly yours,
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
68
Exhibit F
[▇▇▇▇▇▇, RINGE Y ▇▇▇▇▇▇, S.C. LETTERHEAD]
July 30, 1996
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as local counsel for IMPSAT, S.A. de C.V. ("IMPSAT
Mexico") since its incorporation and have most recently provided services in
connection with the private placement offering contemplated by its parent
company IMPSAT Corporation (the "Company").
With respect to the private placement offer, you have asked us to
provide a legal opinion as to the organization, existence, business, and
properties of IMPSAT Mexico as they relate to the information provided in the
Offering Memorandum, dated July 25, 1996 ("Final Memorandum").
In connection with this opinion we have examined:
(a) The Final Memorandum.
(b) The Mexican laws and regulations governing the
organization, existence, business, and properties of
IMPSAT Mexico.
(c) The special legislation, decrees, resolutions and other
legal instruments, such as IMPSAT Mexico's permit to
provide dedicated link services, as in our judgment are
necessary or appropriate to render this opinion.
69
▇▇▇▇▇▇, RINGE Y ▇▇▇▇▇▇, S.C. 2
(d) Our files on IMPSAT MEXICO.
On the basis of the foregoing and to the best of our knowledge, we are of the
opinion that:
(A) IMPSAT Mexico has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
organization, has the corporate power and authority to own its property and to
conduct its business as described in the Final Memorandum under the caption
"Business -- Description of Country Operations -- IMPSAT Mexico -- Regulation"
and is duly qualified to transact business and is in good standing in each
Mexican jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualifications, 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 taken as a whole;
(B) IMPSAT Mexico has all necessary certificates, orders, permits, licenses;
authorizations, consents and approvals of and from, and has made all
declarations and filings with, all Mexican governmental authorities, all
self-regulatory organizations and all courts and tribunals, to own, lease,
license and use its properties and assets and to conduct its business in the
manner described in the Final Memorandum under the caption "Business --
Description of Country Operations -- IMPSAT Mexico -- Regulation", and IMPSAT
Mexico has received no notice of proceedings relating to the revocation or
modification of any such certificates, orders, permits, licenses,
authorizations, consents or approvals, nor is IMPSAT Mexico in violation of, or
in default under, any federal, state, local, national or regional law,
regulation, rule, decree, order or judgment applicable to IMPSAT Mexico 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,
except as described in the Final Memorandum, and
(C) The statements in the Final Memorandum under the caption "Business --
Description of Country Operations -- IMPSAT Mexico -- Regulation", insofar as
such statements constitute summaries of the Mexican legal matters, documents or
proceedings referred to
70
▇▇▇▇▇▇, RINGE Y ▇▇▇▇▇▇, S.C. 3
therein, are accurate in all material respects, and fairly summarize all matters
referred to therein.
(D) There are no restrictions (legal, contractual or otherwise) on the ability
of IMPSAT Mexico to declare and pay any dividends or make any payment or
transfer of property or assets to its stockholders other than those described
in the Final Memorandum (including without limitation, the description of
withholding taxes contained therein) 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 its subsidiaries,
taken as a whole; and such descriptions, if any, fairly summarize such
restrictions.
Sincerely,
/s/ ▇. ▇▇▇▇▇▇▇
-------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
71
[▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LETTERHEAD]
Caracas, July 30, 1996
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ref: Legal Opinion
Telecomunicaciones Impsat, S.A.
Ladies and Gentlemen:
We are acting as legal counsel for Telecomunicaciones Impsat, S.A.,
(ImpSat Venezuela) a corporation incorporated and organized under the laws of
the Republic of Venezuela, in connection with the issuance and sale of
$125,000,000 aggregate principal amount of 12 1/8% Senior Guaranteed Notes due
2003 (the "Notes") of IMPSAT Corporation (the "Company").
We have reviewed the Final Memorandum dated July 25, 1996 (the "Final
Memorandum"). We have also made such inquiries, and examined originals or
copies of such documents, corporate records and other instruments as we have
deemed necessary for the purpose of this opinion. In our examination, we have
assumed the legal capacity of all natural persons, the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified
or photostatic copies and the authenticity of the originals of such latter
documents. In making our examination of documents executed by parties other
than the Company, we have assumed that such parties had the power, corporate or
other, to enter into and perform all obligations thereunder and have also
assumed the due authorization by all requisite action, corporate or other, and
execution
72
[▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LETTERHEAD]
and delivery by such parties of such documents and the validity and binding
effect thereof. As to any facts material to the opinions expressed herein which
were not independently established or verified, we have relied upon oral or
written statements and representations of the Company, its officers and others.
Based on the foregoing, we are the opinion that:
(A) ImpSat Venezuela has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
organization, has the corporate power and authority to own its property and to
conduct its business as described in the Final Memorandum and is duly qualified
to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or to be
in good standing would not have a material adverse effect on the Company and
its subsidiaries as a whole;
(B) ImpSat Venezuela has no subsidiaries.
(C) ImpSat Venezuela, to our better knowledge, has all necessary
certificates, orders, permits, licenses, authorizations, consents and approvals
of and from, and has made all declarations, and filings with, all Venezuelan
Governmental authorities, all self regulatory organizations and all Courts and
Tribunals, to own, lease, license, and use its properties and assets and to
conduct its business in the manner described in the Final Memorandum. Up to
this date, ImpSat Venezuela 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 ImpSat
Venezuela in violation of, or in default under, any Federal, State, Local,
Foreign, Supranational, National or Regional law, regulation, rule, decree,
order or judgment applicable to ImpSat Venezuela the effect of which, singly or
in the aggregate would have a material adverse effect on the prospects,
condition, financial or otherwise, or in the earnings, business or operations
of the Company, taken as a whole, except as described in the Final Memorandum;
and
(D) The Statements in the Final Memorandum under the captions
(including, without limitation, the description of withholding taxes contained
therein) "Business -- Description of Country Operation -- IMPSAT Venezuela
Regulation," insofar as such statements constitute summaries of the Venezuelan
legal matters, documents or proceedings referred to therein, 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 ImpSat Venezuela to declare and pay dividends or make payment or
transfer of property or assets to its stockholders other than those described
in the Final Memorandum.
73
[▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LETTERHEAD]
(including, without limitation, the description of withholding taxes contained
therein) 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 its subsidiaries, taken as a whole; and such
descriptions, if any, fairly summarize such restrictions.
Yours sincerely,
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------- -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇