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EXHIBIT 4.2
$225,000,000
IMPSAT CORPORATION
$225,000,000 12_% SENIOR NOTES DUE 2008
PLACEMENT AGREEMENT
June 12, 1998
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June 12, 1998
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Credit Suisse First Boston Corporation
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
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") $225,000,000 principal amount of its 12_%
Senior Notes due 2008 (the "Notes") to be issued pursuant to the provisions of
an Indenture to be dated as of June 17, 1998 (the "Indenture") between the
Company and The Bank of New York, as Trustee.
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 (as
defined below).
In connection with the sale of the Notes, the Company has prepared a
preliminary offering memorandum (the "Preliminary Memorandum") and will prepare
a final offering 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 (the
"Registration Rights Agreement") dated the date hereof (as defined below).
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
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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. All of the shares of capital stock of the
Company's subsidiaries owned by the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are directly owned
by the Company, free and clear of all liens, encumbrances, equities or claims.
(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. IMPSAT S.A. ("Impsat Argentina") is a 95.2% 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 C.V. ("Impsat Mexico") is
a 99.9% owned subsidiary of the Company, Telecomunicaciones IMPSAT S.A. ("Impsat
Venezuela") is a 75% owned subsidiary of the Company and IMPSAT Comunicacoes
Ltda. ("Impsat Brazil") is a 99.9% owned subsidiary of the Company.
(d) This Agreement has been duly authorized, executed and delivered
by the Company.
(e) The Registration Rights Agreement has been duly authorized and,
when executed and delivered by the Company, will be a valid and binding
agreement of the Company 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
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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) 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 the
Registration Rights Agreement.
(g) The Indenture has been duly authorized, executed and delivered
by the Company, and is a valid and binding agreement of the Company, 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.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture, the Registration Rights Agreement, the Notes 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 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 or any 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 of its obligations
under this Agreement, the Indenture, the Registration Rights Agreement or the
Notes or 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
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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 to
perform its obligations under this Agreement, the Indenture, the Registration
Rights Agreement or the Notes, 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 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 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, (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;
provided, however, that no such representation or warranty is given or made with
respect to the Placement Agents or any of their Affiliates.
(m) The Company is not, and after giving effect to the offering and
sale of the Notes and the application of the proceeds thereof as described in
the Final Memorandum, will not be, an "investment company" as such term is
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
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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.
(p) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with Environmental
Laws or any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties) which would, singly
or in the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(q) None of the Company, its Affiliates or any person acting on its
or their behalf 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 have complied and will comply with the offering restrictions
requirement of Regulation S; provided, however, that no such representation or
warranty is given or made with respect to the Placement Agents or any of their
Affiliates.
(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 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
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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 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 have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(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 have a material adverse effect on the Company
and its subsidiaries, taken as a whole, except as described in 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.
(w) The Notes satisfy the requirements set forth in Rule 144A(d)(3)
under the Securities Act.
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2. Agreements to Sell and Purchase. 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 as set forth in
Schedule I hereto opposite their names at a purchase price of 97.375% of the
principal amount of the Notes plus accrued interest, if any, to the Closing Date
(the "Purchase Price").
The Company hereby agrees that, without the prior written consent of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated on behalf of the Placement Agents, it will
not, during the period beginning on the date hereof and continuing to and
including the Closing Date, offer, sell, contract to sell or otherwise dispose
of any debt of the Company or warrants to purchase debt of the Company
substantially similar to the Notes (other than the sale of the Notes under this
Agreement).
3. Terms of Offering. You have advised the Company that the
Placement Agents will make an offering of the Notes purchased by the Placement
Agents hereunder on the terms to be set forth in the Final Memorandum, as soon
as practicable after this Agreement is entered into as in your judgment is
advisable.
4. Payment and Delivery. Payment for the Notes shall be made to
the Company in Federal or other funds immediately available in New York City
against delivery of such Notes for the respective accounts of the several
Placement Agents at 10:00 a.m., New York city time, on June 17, 1998, or at such
other time on the same or such other date, not later than June 27, 1998, as
shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "Closing Date."
Certificates for the Notes shall be in definitive form or global
form, as specified by you, and registered in such names and in such
denominations as you shall request in writing not later than one full business
day prior to the Closing Date. The certificates evidencing the Notes shall be
delivered to you on the Closing Date for the respective accounts of the several
Placement Agents, with any transfer taxes payable in connection with the
transfer of the Notes to the Placement Agents duly paid, against payment of the
Purchase Price therefor.
5. Conditions to the Placement Agent's Obligations. 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
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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 (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement) 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 Preliminary 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, dated the Closing
Date, to the effect set forth in Exhibit A.
(d) You shall have received on the Closing Date an opinion of
▇▇▇▇▇▇▇▇ & ▇▇▇▇, Argentine counsel for the Company and Impsat Argentina,
dated the Closing Date, to the effect set forth in Exhibit B.
(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 C.
(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 D.
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(g) You shall have received on the Closing Date an opinion of
▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇, Mexican counsel for Impsat Mexico, dated the
Closing Date, to the effect set forth in Exhibit E.
(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 F.
(i) You shall have received on the Closing Date an opinion of
▇▇▇▇▇▇▇▇ ▇▇▇▇, Brazilian counsel for Impsat Brazil, dated the Closing Date,
to the effect set forth in Exhibit G.
(j) You shall have received on the Closing Date an opinion of
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, United States regulatory counsel for the Company, dated
the Closing Date, to the effect set forth in Exhibit H.
Each of the opinions referred to in clauses (c) through (j) shall be
rendered to the Placement Agents at the request of the Company and shall so
state therein.
(k) You shall have received on the Closing Date an opinion of
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, United States counsel for the Placement Agents, dated
the Closing Date, with respect to such matters as you may reasonably
request.
(l) 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;
provided that the letter delivered on the Closing Date shall use a "cut-off
date" not earlier than the date hereof.
(m) You shall have received such other documents and certificates
as are reasonably requested by you and your counsel.
6. 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 you in New York City, without charge, prior to
10:00 a.m. New York City time on the business day next succeeding the date
of this Agreement and during the period mentioned in Section 6(c), as many
copies of the Final
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Memorandum and any supplements and amendments thereto as you may reasonably
request.
(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 the 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 the 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 the 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.
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(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 the 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.
(k) For the sole benefit of the Placement Agents;
(i) prior to the consummation of the Exchange Offer (as defined
in the Registration Rights Agreement) or the effectiveness of a Shelf
Registration Statement if, in the reasonable judgment of any Placement
Agent, such Placement Agent or any of its affiliates (as such term is
defined in the rules and regulations under the Securities Act) is required
to deliver an offering memorandum in connection with sales of, or
market-making activities with respect to, the Notes or the Exchange
Securities (as defined in the Registration Rights Agreement), (A) to
periodically amend or supplement the Final Memorandum so that the
information contained in the Final Memorandum complies with the
requirements of Rule 144A of the Securities Act, (B) to amend or supplement
the Final Memorandum when necessary to reflect any material changes in the
information provided therein so that the Final Memorandum will not contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances existing as of the date the Final Memorandum is so delivered,
not misleading and (C) to provide such Placement Agent
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with copies of each such amended or supplemental Final Memorandum, as such
Placement Agent may reasonably request;
(ii) following the consummation of the Exchange Offer or the
effectiveness of a Shelf Registration Statement and for so long as the
Notes or, the Exchange Securities are outstanding if, in the reasonable
judgment of any Placement Agent, such Placement Agent or any of its
affiliates (as such term is defined in the rules and regulations under the
Securities Act) is required to deliver a prospectus in connection with
sales of, or market-making activities with respect to the Notes or the
Exchange Securities, (A) to periodically amend the applicable registration
statement so that the information contained therein complies with the
requirements of Section 10(a) of the Securities Act, (B) if requested by
such Placement Agent, within 45 days following the end of the Company's
most recent fiscal quarter, file a supplement to the prospectus included in
the applicable registration statement which sets forth the financial
results of the Company for the previous quarter, (C) to amend the
applicable registration statement or supplement the related prospectus or
the documents incorporated therein when necessary to reflect any material
changes in the information provided therein so that the registration
statement and the prospectus will not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in light of the circumstances existing as of the
date the prospectus is so delivered, not misleading and (D) to provide such
Placement Agent with copies of each such amendment or supplement as such
Placement Agent may reasonably request;
(iii) notwithstanding clauses (i) and (ii) above, (A) prior to
amending the Final Memorandum or to filing any post-effective amendment to
any registration statement or to supplementing any related prospectus, to
furnish to the Placement Agents and their counsel, copies of all such
documents proposed to be amended, filed or supplemented, and (B) it will
not issue any amendment to the Final Memorandum, any post-effective
amendment to a registration statement or any supplement to a prospectus to
which the Placement Agents or their counsel shall reasonably object;
(iv) it shall notify the Placement Agents and their counsel and
(if requested by any such person) confirm such advice in writing, (A) when
any amendment to the Final Memorandum has been issued, when any prospectus
supplement or amendment or post-effective amendment has been filed, and,
with respect to any post-effective amendment, when the same has become
effective, (B) of any request by the SEC for any post-effective amendment
or supplement to a registration statement, any supplement or amendment to a
prospectus or for additional information, (C) the issuance by the SEC of
any stop order suspending the effectiveness of a registration statement or
the initiation of any proceedings for that purpose, (D) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Notes or the Exchange Securities for sale in any
jurisdiction or the initiation or threatening of any proceedings for such
purpose and (E) of the happening of any event which makes any
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statement made in the Final Memorandum, a registration statement, a
prospectus or any amendment or supplement thereto untrue or which requires
the making of any change in the Final Memorandum, a registration
statement, a prospectus or any amendment or supplement thereto, in order
to make the statements therein not misleading;
(v) it consents to the use of the Final Memorandum and any
prospectus referred to in this paragraph (k) or any amendment or supplement
thereto, by the Placement Agents in connection with the offering and sale
of the Notes or Exchange Securities, as the case may be;
(vi) it will comply with the provisions of this paragraph (k) at
its own expense and will reimburse the Placement Agents for its expenses
associated with this paragraph (j) (including fees of counsel); and
(vii) it expressly acknowledges that the indemnification and
contribution provisions of Section 8 of this Agreement shall be
specifically applicable and relate to each offering memorandum,
registration statement, prospectus, amendment or supplement referred to in
this paragraph (k).
7. Offering of Notes; Restrictions on Transfer. (a) Each
Placement Agent, severally and not jointly, represents and warrants that such
Placement Agent is a qualified institutional buyer as defined in Rule 144A under
the Securities Act (a "QIB"). Each Placement Agent, severally and not jointly,
agrees with the Company that (i) it will not solicit offers for, or offer or
sell, the 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 the Notes only from, and will offer the
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 Appendix 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 discretionary basis for foreign
beneficial owners (other than an estate or trust)) that, in each case, in
purchasing the 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:
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14
(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 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 another exemption from the
registration requirements of the Securities Act;
(iv) such Placement Agent has offered the Notes and will offer and
sell the Notes (A) as part of 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, prior
to the date six months after the Closing Date, will not offer or sell any
Notes to persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in
an offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995; (B) complied and will comply
with all applicable provisions of the Financial Services Act 1986 with
respect to anything done by it in relation to the Notes in, from or
otherwise involving the United Kingdom; and (C) only issued or passed on
and will only issue or pass on 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
Act 1986 (Investment Advertisements) (Exemptions) Order 1996 or is a person
to whom such document may otherwise lawfully be issued or passed on;
(vi) such 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
16
15
has not offered or sold, and agrees not to offer or sell, any of the Notes,
directly or indirectly in Japan or for the account of any resident of Japan
except (A) pursuant to any exemption from the registration requirements of
the Securities and Exchange Law of Japan and (B) in compliance with
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 7 have the meanings given to them by Regulation S.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Placement Agent, and each person, if any, who
controls any 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 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 the Company and its directors, officers and each
person, if any, who controls the Company within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the
17
16
Company to such Placement Agent, but only with reference to information relating
to such Placement Agent furnished to the Company in writing by such Placement
Agent 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 respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the 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 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.
18
17
(d) To the extent the indemnification provided for in paragraph
(a) or (b) of this Section 8 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, 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, 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, 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, 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 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 8 are several in proportion to the respective principal amounts of Notes
they have purchased hereunder, and not joint.
(e) The Company and the Placement Agents agree that it would not
be just or equitable if contribution pursuant to this Section 8 were determined
by pro rata allocation (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, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, 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
19
18
misrepresentation. The indemnity and contribution provisions contained in this
Section 8 and the representations and warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Placement Agent or any person
controlling any Placement Agents or by or on behalf of the Company or its
officers or directors or any person controlling the Company and (iii) acceptance
of and payment for any of the Notes. The remedies provided for in this Section 8
are not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
9. Termination. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange or the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses (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.
10. Effectiveness; Defaulting Placement Agents. This Agreement
shall become effective upon the execution and delivery hereof by the parties
hereto.
If, on the Closing Date, either of the Placement Agents shall
fail or refuse to purchase Notes that it has 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 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 the principal amount of Notes that any
Placement Agent has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 10 by an amount in excess of one-ninth of such
principal amount of Notes without the written consent of such Placement Agent.
If, on the Closing Date any Placement Agent 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
20
19
36 hours after such default, this Agreement shall terminate without liability on
the part of any non-defaulting Placement Agent or of the Company. In any such
case either you or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Final Memorandum or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Placement Agent from liability in respect of any default
of such Placement Agent under this Agreement.
If this Agreement shall be terminated by the Placement Agents, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement, 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.
11. Notices. All notices and other communications under this
Agreement shall be in writing and mailed, delivered or sent by facsimile
transmission to: if sent to the Placement Agents, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: High Yield New
Issues Group, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇ and if sent to the Company, to
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 256, 1107 Buenos Aires, Argentina, attention: Chief Financial
Officer, facsimile number ▇▇▇ (▇▇▇) ▇▇▇ ▇▇▇▇.
12. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
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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:
Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By
------------------------------------
Name:
Title:
22
SCHEDULE I
Principal Amount of
Placement Agent Notes to be Purchased
--------------- ---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $ 213,750,000
Credit Suisse First Boston
Corporation $ 11,250,000
---------------
Total............... $225,000,000
===============
23
EXHIBIT A
Opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇
(A) 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 (references herein to the Final
Memorandum being taken to mean the same, as amended or supplemented);
(B) the Placement Agreement has been duly authorized, executed
and delivered by the Company;
(C) the Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms;
(D) the Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms;
(E) the Notes have been duly 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 will be entitled to the benefits
of the Indenture and the Registration Rights Agreement;
(F) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Placement Agreement,
the Indenture, the Registration Rights Agreement, the Notes, and the issuance,
sale and delivery of the Notes, 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 such counsel's
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 such counsel's 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;
(G) 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
24
A-2
for the performance by the Company of its obligations under the Placement
Agreement, the Indenture, the Registration Rights Agreement, the Notes, 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 in connection with the
offer and sale of the Notes;
(H) after reasonable inquiry, such counsel does not know of any
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 fairly
summarized in the Final Memorandum and proceedings which such counsel believes
are not likely to have a material adverse effect on the Company and its
subsidiaries, taken as a whole, or on the power or ability of the Company to
perform its obligations under the Placement Agreement, the Indenture, the
Registration Rights Agreement or the Notes or to consummate the transactions
contemplated by the Placement Agreement, the Indenture, the Registration Rights
Agreement and the Notes;
(I) 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 contemplated by
the Placement Agreement does not require registration of the Company as an
"investment company" under the Investment Company Act;
(J) the statements set forth in the Final Memorandum under the
captions "Description of the Notes", "Private Placement" and "Description of
Certain Indebtedness", 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;
(K) 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;
(L) such counsel believes that (except for financial statements
and other financial data as to which such counsel need not express any belief)
the Final Memorandum when issued did not, and as of the date such opinion is
delivered does not, contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(M) based upon the representations, warranties, and agreements of
the Company in the Placement Agreement and of the Placement Agents in the
Placement Agreement, it is not necessary in connection with the offer, sale and
delivery of the Notes to the Placement Agents under the Placement Agreement or
in connection with the initial resale of
25
A-3
such Notes by the Placement Agents in accordance with the Placement Agreement to
register the Notes under the Securities Act of 1933, it being understood that no
opinion is expressed as to any subsequent resale of any Notes; and
With respect to paragraph (L) above, counsel may state that their
opinion and belief are based upon their participation in the preparation of the
Final Memorandum (and any amendments or supplements thereto) and review and
discussion of the contents thereof, but are without independent check or
verification except with respect to paragraphs (J) and (K) above.
26
EXHIBIT B
Opinion of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
(A) Impsat Argentina has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the Republic of
Argentina, 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;
(B) all of the shares of capital stock of Impsat Argentina owned
by the Company have been duly and validly authorized and issued and are fully
paid and non-assessable and are directly owned by the Company, free and clear of
all liens, encumbrances, equities or claims;
(C) Impsat Argentina has all necessary certificates, orders,
permits, licenses, authorizations, consents and approvals of and from, and has
made all declarations and filings with, all Argentine 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 Memorandum, and
Impsat Argentina 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 Argentina 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 Argentina 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
(D) the statements in the Final Memorandum under the caption
"Risk Factors - Government Regulation; Regulatory Uncertainty", "Business -
Legal Matters" 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.
(E) There are no restrictions (legal, contractual or otherwise)
on the ability Impsat Argentina 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
27
B-2
(including, without limitation, the description of withholding taxes contained
therein) and any applicable creditors' rights under Argentine law, 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.
28
EXHIBIT C
Opinion of ▇▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
(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 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) all of the shares of capital stock of Impsat Colombia owned
by the Company have been duly and validly authorized and issued and are fully
paid and non-assessable and are directly owned by the Company, free and clear of
all liens, encumbrances, equities or claims;
(C) 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 Memorandum, and
Impsat Colombia 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 Colombia 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 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 operations of the Company and its subsidiaries,
taken as a whole, except as described in the Final Memorandum; and
(D) the statements in the Final Memorandum under the caption
"Business Description of Country Operations - Impsat Colombia - Regulation"
insofar as such statements constitute summaries of the Colombian 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 Colombia 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 described therein) and such
29
C-2
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.
30
EXHIBIT D
Opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
(A) Impsat Ecuador has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the Republic of Ecuador, has
the corporate power and authority to own its property and to conduct its
business as described in the Final Memorandum dated June 12, 1998 (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) all of the shares of capital stock of Impsat Ecuador owned by
the Company have been duly and validly authorized and issued and are fully paid
and non-assessable and are directly owned by the Company, free and clear of all
liens, encumbrances, equities or claims;
(C) 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 Ecuadoran 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 Memorandum, and
Impsat Ecuador 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 Ecuador 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
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 and its subsidiaries, taken as a
whole, except as described in the Final Memorandum; and
(D) the statements in the Final Memorandum under the caption
"Business Description of Country Operations - Impsat Ecuador" insofar as such
statements constitute summaries of the legal matters of Ecuador, 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 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
31
D-2
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.
32
EXHIBIT E
Opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇
(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" 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 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) all of the shares of capital stock of Impsat Mexico owned by
the Company have been duly and validly authorized and issued and are fully paid
and non-assessable and are directly owned by the Company, free and clear of all
liens, encumbrances, equities or claims;
(C) 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" and Impsat Mexico 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 Mexico 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 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
(D) the statements in the Final Memorandum under the caption
"Business Description of Country Operations - Impsat Mexico" insofar as such
statements constitute summaries of the Mexican 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 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
33
E-2
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.
34
EXHIBIT F
Opinion of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
(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 be in good standing would not have a material adverse effect on the
Company and its subsidiaries taken as a whole;
(B) all of the shares of capital stock of Impsat Venezuela owned
by the Company have been duly and validly authorized and issued and are fully
paid and non-assessable and are directly owned by the Company, free and clear of
all liens, encumbrances, equities or claims;
(C) Impsat Venezuela has no subsidiaries;
(D) 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
(E) the statements in the Final Memorandum under the captions
(including, without limitation, the description of withholding taxes contained
therein) "Business Description of Country Operations - Impsat Venezuela" 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.
35
F-2
(F) There are no restrictions (legal, contractual or otherwise)
on the ability of Impsat Venezuela 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.
36
EXHIBIT G
Opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇
(A) Impsat Comunicacoes Ltda. ("Impsat Brazil") has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of Brazil, 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 as a whole;
(B) all of the shares of capital stock of Impsat Brazil owned by
the Company have been duly and validly authorized and issued and are fully paid
and non-assessable and are directly owned by the Company, free and clear of all
liens, encumbrances, equities or claims;
(C) Impsat Brazil has all necessary certificates, orders,
permits, licenses, authorizations, consents and approvals of and from, and has
made all declarations and filings with, all Brazilian 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 Memorandum, and
Impsat Brazil 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 Brazil 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
Brazil 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;
(D) the statements in the Final Memorandum under the caption
"Business Description of Country Operations - Impsat Brazil" insofar as such
statements constitute summaries of the Brazil legal matters, documents or
proceedings referred to therein, are accurate in all material respects and
fairly summarize all matters referred to therein, and
(E) there are no restrictions (legal, contractual or otherwise)
on the ability of Impsat Brazil 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.