Exhibit 10.1
Execution Copy
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TEVECAP S.A.
12 5/8% Senior Notes due 2004
PURCHASE AGREEMENT
dated November 21, 1996
among
TEVECAP S.A.,
ITS SUBSIDIARIES LISTED ON
THE SIGNATURE PAGES HERETO
and
CHASE SECURITIES INC.
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
and
BOZANO, ▇▇▇▇▇▇▇▇ SECURITIES, INC.
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TEVECAP S.A.
$250,000,000
12 5/8% Senior Notes due 2004
PURCHASE AGREEMENT
November 21, 1996
CHASE SECURITIES INC.
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
BOZANO, ▇▇▇▇▇▇▇▇ SECURITIES, INC.
c/o CHASE SECURITIES INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
TEVECAP S.A., a sociedad anonima organized under the laws of the
Federative Republic of Brazil (the "Company"), proposes to issue and sell to
Chase Securities Inc., Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation and Bozano, ▇▇▇▇▇▇▇▇ Securities, Inc. (the "Initial
Purchasers") $250.0 million aggregate principal amount of its 12 5/8% Senior
Notes due 2004 (the "Notes"). The Notes will be issued pursuant to an Indenture
to be dated as of November 26, 1996 (the "Indenture") among the Company, the
Subsidiaries (as defined in Section 16) listed on the signature pages hereto
(collectively, the "Guarantors"), The Chase Manhattan Bank, as trustee (the
"Trustee") and Chase Trust Bank, as principal paying agent (the "Principal
Paying Agent"). Payment of principal and interest on the Notes will be
irrevocably guaranteed, on a senior basis (the "Guarantees"), by the Guarantors.
This is to confirm the agreement concerning the purchase of the Notes from the
Company by the Initial Purchasers.
The Notes will be offered and sold to the Initial Purchasers without
being registered under the Securities Act of 1933, as amended (the "Securities
Act"), in reliance on an exemption therefrom. The Company has prepared a
preliminary offering memorandum dated October 31, 1996 (the "preliminary
offering memorandum"), and a final offering memorandum dated the date hereof
(such offering memorandum, in the form first furnished to the Initial Purchasers
for use in connection with the offering of the Notes, being hereinafter referred
to as the "Offering Memorandum"), setting forth information concerning the
Company, the Guarantors and the Notes. Copies of the preliminary offering
memorandum have been, and copies of the Offering Memorandum will be, delivered
by the Company and the Initial Purchasers pursuant to the terms of this
Agreement. Any references
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herein to the preliminary offering memorandum and the Offering Memorandum shall
be deemed to include all amendments and supplements thereto, unless otherwise
noted. The Company hereby confirms that it has authorized the use of the
preliminary offering memorandum and the Offering Memorandum in connection with
the offering and resale of the Notes by the Initial Purchasers in accordance
with Section 3 hereof.
The Initial Purchasers and their direct and indirect transferees
will be entitled to the benefits of the Exchange and Registration Rights
Agreement, substantially in the form attached hereto as Exhibit A (the
"Registration Rights Agreement"), pursuant to which the Company will agree to
file with the Securities and Exchange Commission (the "Commission") (i) a
registration statement under the Securities Act (the "Exchange Offer
Registration Statement") registering an issue of a series of senior notes of the
Company (the "Exchange Notes") identical in all material respects to the Notes
(except that the Exchange Notes will not contain terms with respect to transfer
restrictions) to be offered in exchange for the Notes and (ii) under certain
circumstances, a shelf registration statement pursuant to Rule 415 under the
Securities Act (the "Shelf Registration Statement").
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. Each of the Company
and the Guarantors represents and warrants to and agrees with the Initial
Purchasers that:
(a) Each of the preliminary offering memorandum, as of its date, and
the Offering Memorandum, as of the date hereof and the Closing Date, contained
(or will contain) all information that, if requested by a prospective purchaser,
would be required to be provided to such purchaser pursuant to Rule 144A(d)(4)
under the Securities Act. The preliminary offering memorandum, as of its date,
did not, and the Offering Memorandum, as of the date hereof and as of the
Closing Date, did not (or will not), include any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements contained therein, in light of the circumstances
under which they were made, not misleading; provided, however, that neither the
Company nor any Guarantor make any representation or warranty as to information
contained in or omitted from the preliminary offering memorandum or the Offering
Memorandum, as amended or supplemented, in reliance upon and in conformity with
written information furnished to the Company and the Guarantors by or on behalf
of the Initial Purchasers specifically for use in the preliminary offering
memorandum or the Offering Memorandum (the "Initial Purchasers' Information").
The parties acknowledge and agree that the Initial Purchasers' Information
consists solely of the last paragraph on the front cover page concerning the
terms of the offering by the Initial Purchasers, the first paragraph of the
legend on the inside front cover page concerning over-allotment and trading
activities and the statements relating to the Initial Purchasers in the third
and fifth paragraphs under the heading "Plan of Distribution" in the preliminary
offering memorandum and the Offering Memorandum.
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(b) The statements contained in the preliminary offering memorandum
and the Offering Memorandum relating to Brazil and its economy have been
extracted from publicly available information which the Company and the
Guarantors believe are reliable sources.
(c) Each of the preliminary offering memorandum and the Offering
Memorandum includes all information required by all applicable laws of the
Federative Republic of Brazil ("Brazil").
(d) Assuming the accuracy of each of the Initial Purchasers'
representations contained herein, and the Initial Purchasers' compliance with
their agreements hereunder, it is not necessary, in connection with the issuance
and sale of the Notes to the Initial Purchasers and the offer, resale and
delivery of the Notes in the manner contemplated by this Agreement and the
Offering Memorandum, to register the Notes under the Securities Act or to
qualify the Indenture in respect of the Notes under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act").
(e) The Company has been duly incorporated and is validly existing
as a sociedad anonima under the laws of Brazil, is duly qualified as a foreign
corporation for the transaction of business under the laws of each other
jurisdiction in which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to so qualify
would not have, singularly or in the aggregate, a material adverse effect on the
financial condition, results of operations or business of the Company and its
Subsidiaries taken as a whole, and has all power and authority necessary to own
or hold its properties and to conduct the businesses in which it is engaged as
described in the Offering Memorandum.
(f) Each Subsidiary of the Company has been duly incorporated and is
validly existing as a corporation or a partnership under the laws of the
jurisdiction of its incorporation or organization, is duly qualified as a
foreign corporation for the transaction of business under the laws of each other
jurisdiction in which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to so qualify
would not have, singularly or in the aggregate, a material adverse effect on the
financial condition, results of operations or business of the Company and its
Subsidiaries taken as a whole, and has all power and authority necessary to own
or hold its respective properties and to conduct the businesses in which it is
engaged as described in the Offering Memorandum. All issued and outstanding
shares of the capital stock of each of the Subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable. The Company
owns, directly or indirectly, 87%, 98%, 99.9% and 100%, respectively, of its
Subsidiaries TVA Sul, TVA Sistema, Commercial Cabo TV Sao Paulo Ltda., and
Galaxy Brasil S.A. and owns, directly or indirectly, 100% of each of its other
Subsidiaries, in each case, except as disclosed in the Offering Memorandum, free
and clear of any claim, lien, encumbrance, security interest, restriction upon
voting or transfer or any other claim of any third party; and the Company owns
36% and 14% of its Operating Ventures Canbras TVA and TV Filme, respectively;
50% and 33.3% of its Programming Ventures ESPN Brazil and HBO Partners,
respectively; 48.9% of Ype Radio e Televisao
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Ltda.; and 10% of Galaxy Latin America, in each case, except as disclosed in the
Offering Memorandum, free and clear of any claim, lien, encumbrance, security
interest or any other claim of any third party. The Company has no Subsidiaries
other than those listed on the signature pages hereto.
(g) The Company has an authorized capitalization as set forth in the
Offering Memorandum, and all of the issued and outstanding shares of capital
stock of the Company have been duly authorized and validly issued and are fully
paid and non-assessable.
(h) The Company has full right, power and authority to execute and
deliver this Agreement, the Indenture, the Notes, the Registration Rights
Agreement, and the agreement with the Process Agent referred to in Section 21
(the "Agency Agreement") (collectively, the "Transaction Documents") and to
perform its obligations hereunder and thereunder; and all corporate action
required to be taken for the due and proper authorization, execution and
delivery of the Transaction Documents and the consummation of the transactions
contemplated thereby have been duly and validly taken.
(i) Each Guarantor has full right, power and authority to execute
and deliver this Agreement, the Indenture, the Registration Rights Agreement,
the Guarantees by the Guarantors endorsed on the Notes, and the Agency Agreement
and to perform its obligations hereunder and thereunder; and all corporate
action required to be taken by such Guarantor for the due and proper
authorization, execution and delivery of this Agreement, the Indenture, the
Registration Rights Agreement, the Guarantees and the Agency Agreement and the
consummation of the transactions contemplated thereby have been duly and validly
taken.
(j) This Agreement has been duly authorized, executed and delivered
by the Company and each Guarantor.
(k) The Indenture has been duly authorized by the Company and each
Guarantor, and when duly executed and delivered by the Company and each
Guarantor on the Closing Date, will constitute a valid and legally binding
agreement of the Company and each Guarantor enforceable against the Company and
each Guarantor, respectively, in accordance with its terms. At the Closing Date,
the Indenture will conform in all material respects to the requirements of the
Trust Indenture Act and the rules and regulations of the Commission applicable
to an indenture which is qualified thereunder, other than the Trustee being
qualified in accordance with the Trust Indenture Act.
(l) The Notes have been duly authorized by the Company, and, when
duly executed, authenticated, issued and delivered as provided in the Indenture
and paid for as provided herein, will be duly and validly issued and
outstanding, and will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture; the Guarantees have been duly
authorized by the Subsidiary Guarantors, and, when duly executed, issued and
delivered as provided in the Indenture, will be duly and validly issued, and
will constitute valid and
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legally binding obligations of the Subsidiary Guarantors, enforceable against
them in accordance with their terms and entitled to the benefits of the
Indenture.
(m) The Registration Rights Agreement has been duly authorized by
the Company and the Guarantors and, when duly executed and delivered by the
Company, the Guarantors and the Initial Purchasers on the Closing Date, will
constitute a valid and legally binding agreement of the Company and the
Guarantors, respectively, enforceable against them in accordance with its terms.
The Agency Agreement has been duly authorized by the Company and constitutes a
valid and legally binding agreement of the Company enforceable against it in
accordance with its terms.
(n) The Indenture, the Notes and the Registration Rights Agreement
conform in all material respects to the description thereof contained in the
Offering Memorandum.
(o) The execution, delivery and performance by the Company and each
Guarantor of the Transaction Documents to which it is a party, the performance
by the Guarantors of the Guarantees, the issuance, authentication, sale and
delivery of the Notes, and compliance with the terms thereof, and the
consummation by the Company of the transactions contemplated thereby will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its Subsidiaries pursuant to, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
such subsidiary is a party or by which the Company or such subsidiary is bound
or to which any of the property or assets of the Company or such subsidiary is
subject, except where such conflict, breach, violation, default or creation
(singularly or in the aggregate) would not have a material adverse effect on the
financial condition, results of operations, business or prospects of the Company
and its Subsidiaries taken as a whole (a "Material Adverse Effect"), nor will
such actions result in any violation of the provisions of the estatutos (or
equivalent constituent document) of the Company or such Subsidiary or any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or such subsidiary or any of their
respective properties or assets, except where such actions (singularly or in the
aggregate) would not have a Material Adverse Effect; and except for such
consents, approvals, authorizations, registrations or qualifications as may be
required under the applicable state securities laws in connection with the
purchase and resale of the Notes by the Initial Purchasers and under federal and
state securities laws in connection with the Exchange Notes and the Registration
Rights Agreement and from the Central Bank of Brazil (the "Central Bank"), no
consent, approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body is required for the execution,
delivery and performance of the Transaction Documents by the Company or the
Guarantors, or for the performance by the Guarantors of the Guarantees, the
issuance, authentication, sale and delivery of the Notes, and compliance with
the terms thereof, or for the consummation by the Company of the transactions
contemplated hereby and thereby. On or prior to the Closing Date, all consents,
authorizations, registrations and qualifications referred to in the
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preceding sentence shall have been obtained, and the same shall be in full force
and effect on the Closing Date.
(p) The financial statements (including the related notes) included
in the preliminary offering memorandum and the Offering Memorandum comply in all
material respects with the requirements applicable to a registration statement
on Form F-1 (except that certain supporting schedules are omitted), present
fairly the financial condition and results of operations of the entities
purported to be shown thereby, at the dates and for the periods indicated, and
have been prepared in conformity with generally accepted accounting principles
("US GAAP") applied on a consistent basis throughout the periods involved,
except as otherwise disclosed therein. The other historical financial and
statistical information and data included in the preliminary offering memorandum
and the Offering Memorandum are in all material respects accurately presented.
(q) Coopers & ▇▇▇▇▇▇▇ are independent public accountants with
respect to the Company under Rule 101 of AICPA's Code of Professional Conduct
and its interpretations and rulings.
(r) Except as described in the Offering Memorandum under
"Business--Legal Proceedings," there are no legal or governmental proceedings to
which the Company or any of its Subsidiaries is a party or of which any property
or assets of the Company or such subsidiary is the subject which, singularly or
in the aggregate, if determined adversely to the Company or such subsidiary
would have a Material Adverse Effect; and to the best knowledge of the Company,
no such proceedings are threatened by governmental authorities or threatened by
others.
(s) No action has been taken and no statute, rule or regulation or
order has been enacted, adopted or issued by any governmental agency or body
which prevents the issuance of the Notes or suspends the sale of the Notes in
any jurisdiction; no injunction, restraining order or order of any nature by a
federal or state court of competent jurisdiction has been issued with respect to
the Company which would prevent or suspend the issuance or sale of the Notes, or
the use of the preliminary offering memorandum or the Offering Memorandum in any
jurisdiction; no action, suit or proceeding is pending against or, to the best
knowledge of the Company, threatened against the Company or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency or
official, domestic or foreign, which could reasonably be expected to interfere
with or adversely affect the issuance of the Notes or in any manner draw into
question the validity thereof or the validity or enforceability of any
Transaction Document or any action taken or to be taken pursuant thereto.
(t) Neither the Company nor any of its Subsidiaries (i) is in
violation of its estatuto or other constituent documents, (ii) is in default in
any material respect, and no event has occurred which, with notice or lapse of
time or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other material
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agreement or instrument to which it is a party or by which it is bound or to
which any of its properties or assets is subject or (iii) is in violation in any
material respect of any law, ordinance, governmental rule, regulation or court
decree to which it or its property or assets may be subject, except any
violation or default under clauses (ii) or (iii) that would not have a Material
Adverse Effect.
(u) Each of the Company and its Subsidiaries possesses all material
licenses, certificates, authorizations or permits (including, without
limitation, all transmission and broadcast licenses) issued by, and has made all
declarations and filings with, the appropriate regulatory agencies or bodies
which are necessary or desirable for the ownership of its respective properties
or the conduct of its respective business as described in the Offering
Memorandum, except where the failure to possess or make the same would not have,
singularly or in the aggregate, a Material Adverse Effect, and neither the
Company nor any of its Subsidiaries has received notification of any revocation
or modification of any such license, certificate, authorization or permit,
except where such revocation or modification would not have a Material Adverse
Effect. The Company and each of its Subsidiaries are in compliance in all
material respects with the terms and conditions of all decisions, policies,
authorizations and licenses announced, rendered, granted or regulated, as the
case may be, by the Brazilian Ministry of Communications (the "Ministry"), and
the other governmental authorities having authority over services provided by
the Company or any of its Subsidiaries, in each case, with respect to the
operation of the businesses of the Company and its Subsidiaries.
(v) Neither the Company nor any subsidiary of the Company is (i) an
"investment company" or a company "controlled by" an investment company within
the meaning of the Investment Company Act of 1940, as amended (the "Investment
Company Act"), and the rules and regulations of the Commission thereunder or
(ii) a "holding company" or a "subsidiary company" of a holding company, or an
"affiliate" thereof within the Public Utility Holding Company Act of 1935, as
amended.
(w) Each of the Company and its Subsidiaries owns or possesses
adequate rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service ▇▇▇▇ registrations,
copyrights, licenses and know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures) necessary for the conduct of its respective business, except where
the failure to own or possess such rights would not have a Material Adverse
Effect, and has no reason to believe that the conduct of its respective business
will conflict with any such rights of others which might reasonably be expected
to have a Material Adverse Effect, and has not received any notice of any claim
of conflict with any such rights of others.
(x) Each of the Company and its Subsidiaries has good and marketable
title to, or has valid rights to lease or otherwise use, all items of real and
personal property which are material to its respective business, in each case
except as disclosed in the Offering Memorandum, free and clear of all liens,
encumbrances and defects that can reasonably be
8
expected to cause a material adverse effect on the financial condition, results
of operations or business of the Company and its Subsidiaries taken as a whole.
(y) The indemnification and contribution provisions set forth in
Sections 10 and 11 of this Agreement do not contradict Brazilian law or public
policy.
(z) No labor disturbance by the employees of the Company or any of
its Subsidiaries exists, or, to the best knowledge of the Company, has been
threatened, which could reasonably be expected to have a material adverse effect
on the financial condition, results of operations or business of the Company and
its Subsidiaries taken as a whole.
(aa) There has been no storage, generation, transportation,
handling, treatment, disposal, discharge, emission, or other release of any kind
of toxic or other wastes or other hazardous substances by, due to, or caused by
the Company or any of its Subsidiaries (or, to the best knowledge of the
Company, any other entity for whose acts or omissions the Company or any of its
Subsidiaries is or may reasonably be expected to be liable) upon any of the
property now or previously owned or leased by the Company or any of its
Subsidiaries, or upon any other property (i) in violation of any Brazilian
federal or state statute or any Brazilian ordinance, rule, regulation, order,
judgment, decree or permit or (ii) which would, under any Brazilian federal or
state statute or any Brazilian ordinance, rule (including rule of common law),
regulation, order, judgment, decree or permit, give rise to any liability,
except in the case of both clauses (i) and (ii) for any violation or liability
which would not have, singularly or in the aggregate with all such violations
and liabilities, a material adverse effect on the financial condition, results
of operations or business of the Company and its Subsidiaries taken as a whole.
(bb) Neither the Company nor any of the Guarantors or their
respective Subsidiaries has sustained since the date of the latest audited
financial statements included in the Offering Memorandum any material loss or
interference with its business from fire, explosion, flood or other calamity,
regardless of whether covered by insurance, or from any labor dispute or court
or governmental action, order or decree, otherwise than as set forth or
contemplated in the Offering Memorandum; and since September 30, 1996, there has
not been any change in the capital stock or long-term debt of the Company (other
than scheduled redemptions or payments) or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
management, financial position, stockholders' equity or results of operations of
the Company and its Subsidiaries otherwise than as set forth or contemplated in
the Offering Memorandum.
(cc) The Company has filed all Brazilian federal, state and local
income and franchise Tax Returns (as defined below) required to be filed through
the date hereof and has paid all material Taxes (as defined below) due, other
than those being contested in good faith and for which adequate reserves have
been provided or those currently payable without penalty or interest, and no Tax
deficiency has been determined adversely to the Company or its Subsidiaries
which has had (nor does the Company have any knowledge of any Tax deficiency
which, if determined adversely to the Company or its Subsidiaries could
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reasonably be expected to have) a Material Adverse Effect. For purposes of this
Agreement, the terms "Tax" and "Taxes" shall mean all Brazilian federal, state,
local or foreign income, payroll, employee withholding, unemployment insurance,
social security, sales, use, service use, leasing use, excise, franchise, gross
receipts, value added, alternative or add-on minimum, estimated, occupation,
real and personal property, stamp, transfer, workers' compensation, severance,
windfall profits, environmental or other tax of the same or of a similar nature,
including any interest, penalty, or addition thereto, whether disputed or not.
The term "Tax Return" means any return, declaration, report, form, claim for
refund, or information return or statement relating to Taxes or income subject
to taxation, or any amendment thereto, and including any schedule or attachment
thereto.
(dd) Since June 30, 1996, except as disclosed in the Offering
Memorandum, the Company has not (i) issued or granted any securities (other than
(A) under plans, agreements and arrangements disclosed in, and in effect on the
date of, the Offering Memorandum, (ii) incurred any liability or obligation,
direct or contingent, other than liabilities and obligations which were incurred
in the ordinary course of business and which would not reasonably be expected to
have a Material Adverse Effect, (iii) entered into any transaction not in the
ordinary course of business which could reasonably be expected to have a
Material Adverse Effect or (iv) declared or paid any dividend on its capital
stock.
(ee) There are no securities of the Company registered under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or listed on a
national securities exchange or quoted in a U.S. automated inter-dealer
quotation system. The Company has been advised that the Notes have been
designated as PORTAL securities in accordance with the rules and regulations of
the National Association of Securities Dealers, Inc. (the "NASD").
(ff) Neither the Company nor any of its affiliates (as defined in
Rule 501(b) of Regulation D under the Securities Act ("Regulation D")) 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 offering and sale of the
Notes in a manner that would require the registration of the Notes under the
Securities Act, (ii) engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D) in connection with the offering
of the Notes or (iii) engaged in any directed selling efforts within the meaning
of Rule 902 under the Securities Act in the United States in connection with the
Notes being offered and sold pursuant to Regulation S under the Securities Act;
provided, however, that with respect to clauses (i) and (ii) above, the Company
makes no representations or warranties as to the activities of the Initial
Purchasers.
(gg) Neither the Company nor any of its affiliates has taken, and
the Company will not take, directly or indirectly, any action designed to, or
that might reasonably be expected to, cause or result in stabilization or
manipulation of the price of the Notes.
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(hh) No stamp duty, stock exchange tax, value-added tax or any other
similar tax or duty is payable in Brazil to any taxing authority thereof or
therein in connection with (i) the authorization, issuance, sale and delivery of
the Notes by the Company to the Initial Purchasers in the manner contemplated in
this agreement or (ii) the entry into, delivery of, or payments pursuant to, the
Guarantees.
(ii) Except for (i) the authorization of the Central Bank of the
terms and conditions of the Notes and of the payment of the fees and commissions
provided for in the Purchase Agreement, which has been obtained or will be
obtained prior to the Closing Date; (ii) the registration of the issue of the
Notes with the Central Bank which will be effected within 30 days of the Closing
Date by the Company obtaining a registration certificate (the "Registration
Certificate") from the Central Bank; and (iii) the approval by the Central Bank
to make any payment in U.S. dollars not set forth in the Registration
Certificate or to make any payment provided for therein later than 180 days
after the due date, which will be obtained by the Company as soon as practicable
after such approval is necessitated, no authorization, approval or consent of
any governmental authority or agency of or in Brazil is required to effect
payments in U.S. dollars on any of the Notes.
(jj) Each shareholder of the Company has executed and delivered an
enforceable written commitment in the form of an Amendment No. 2 to the
Stockholders Agreement among such shareholders and the Company (together, the
"Shareholder Commitments"), agreeing that such shareholder will not exercise its
voting rights to receive mandatory statutory dividends (dividendo minimo
obrigatorio), which conforms in all material respects to the description thereof
in the Offering Memorandum. Each Shareholder Commitment has been duly
authorized, executed and delivered by each party thereto and constitutes the
valid and binding obligation of the Company and each shareholder, enforceable
against the Company and each shareholder in accordance with its terms. The
Shareholder Commitments, taken together, are effective to preclude payment of
any mandatory statutory dividend.
(kk) None of (a) the Transaction Documents, (b) the issuance, sale
and delivery of the Notes to the Initial Purchasers upon payment therefor as
contemplated in this Agreement or (c) the issuance of the Exchange Notes, in
each case as contemplated in this Agreement and the Registration Rights
Agreement, are subject to any registration tax, stamp duty or similar tax, duty,
impost or levy imposed by Brazil or any political subdivision thereof.
(ll) Except as otherwise described in the Offering Memorandum, all
payments by the Company or any Guarantor in respect of the Notes, the Exchange
Notes, the Indenture, this Agreement, the Registration Rights Agreement (or by
any of the Guarantors upon default by the Company) will be made without
withholding or deduction for or on account of any present or future taxes,
duties, assessments or other governmental charges of whatsoever nature imposed
or levied by or on behalf of Brazil or Japan or any political subdivision or
authority thereof or therein having power to tax; provided, however, that if the
Notes or the Exchange Notes are redeemed for any reason prior to maturity, all
payments
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of interest, fees, commissions and original issue discount in respect of the
Notes or the Exchange Notes by the Company (or by any of the Guarantors upon
default by the Company) to holders of the Notes or the Exchange Notes (including
payments made prior to redemption) would be subject to withholding of Brazilian
income tax at a rate of 15 percent, which rate may be reduced to 12-1/2 percent
pursuant to the bilateral treaty aimed at avoiding double taxation entered into
between Brazil and Japan on January 24, 1967 and enacted in Brazil by
Presidential Decree No. 61,899 dated December 14, 1967 (as amended and
supplemented by a protocol dated March 23, 1976 and enacted in Brazil by
Presidential Decree No. 81,194 dated January 9, 1978) and, in accordance with
and subject to the Indenture, the Company will pay (and upon default by the
Company, the Guarantors will pay) such additional amounts as may be necessary in
order that the amounts received by the holder of any Note or Exchange Note after
such withholding or deduction shall equal the respective net amounts which would
have been receivable by such holder in the absence of such withholding imposed
by Brazil or by Japan or any political subdivision or taxing authority thereof
or therein.
(mm) Neither the Company nor any Subsidiary has any pension, profit
sharing, deferred compensation, bonus, retirement, stock option, stock purchase,
phantom stock or similar plan, including any agreement evidencing rights to
purchase securities of the Company or any Subsidiary, in each case which is
subject to ERISA or the Code.
(nn) None of the Company or its Subsidiaries nor any of their
properties or assets has any immunity from the jurisdiction of any court or from
any legal process (whether through service or notice, attachment prior to
judgment, attachment in aid of execution, executing or otherwise) under the laws
of Brazil.
(oo) To ensure the legality, validity, enforceability or
admissibility into evidence of each of this Agreement, the Registration Rights
Agreement, the Agency Agreement, the Indenture, the Notes, the Guarantees, the
Exchange Notes or any other document to be furnished hereunder or thereunder in
Brazil it is not necessary that this Agreement, the Registration Rights
Agreement, the Agency Agreement, the Indenture, the Notes (including the
Guarantees), the Exchange Notes or any such other document be filed or recorded
with any court or other authority in Brazil or that any stamp or similar tax be
paid in Brazil, on or in respect of any of this Agreement, the Registration
Rights Agreement, the Agency Agreement, the Indenture, the Notes, the Exchange
Notes or any such other document, other than the translation into Portuguese by
a sworn translator and the consularization of this Agreement, the Registration
Rights Agreement and the Indenture at the Brazilian Consulate in New York which
will be effected by the Company as soon as reasonably practicable after
execution of such agreements.
2. PURCHASE OF THE NOTES BY THE INITIAL PURCHASERS. (a) On the basis
of the representations, warranties and agreements herein contained, and subject
to the terms and conditions set forth herein, the Company agrees to issue and
sell to each of the Initial Purchasers, severally and not jointly, and each of
the Initial Purchasers, severally and not jointly, agrees to purchase from the
Company, the principal amount of Notes set forth
12
opposite the name of such Initial Purchaser in Schedule 1 hereto, at a purchase
price equal to 96.75% of the principal amount thereof plus accrued interest, if
any, from the Closing Date.
(b) The Company shall not be obligated to deliver any of the Notes,
except upon payment for all of the Notes to be purchased as provided herein.
3. SALE AND RESALE OF THE NOTES BY THE INITIAL PURCHASERS. Each
Initial Purchaser has advised the Company that it proposes to offer the Notes
for resale upon the terms and conditions set forth in this Agreement and in the
Offering Memorandum. Each Initial Purchaser hereby represents and warrants to,
and agrees with, the Company that it (i) is purchasing the Notes pursuant to a
private sale exempt from registration under the Securities Act, (ii) has not
solicited and will not solicit offers for, and has not offered or sold and will
not 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 and has not and will not engage in any
directed selling efforts within the meaning of Rule 902 under the Securities Act
in the United States in connection with the Notes being offered and sold
pursuant to Regulation S under the Securities Act, and (iii) has solicited and
will solicit offers for the Notes only from, and has offered, sold and delivered
and will offer, sell and deliver the Notes, as part of its initial offering,
only (A) to persons in the United States whom such Initial Purchaser reasonably
believes to be qualified institutional buyers ("Qualified Institutional Buyers")
as defined in Rule 144A under the Securities Act, as such rule may be amended
from time to time ("Rule 144A") or, if any such person is buying for one or more
institutional accounts for which such person is acting as fiduciary or agent,
only when such person has represented to it that each such account is a
Qualified Institutional Buyer to whom notice has been given that such sale or
delivery is being made in reliance on Rule 144A and, in each case, in
transactions under Rule 144A, (B) to a limited number of other "accredited
investors" as defined in Rule 501(a)(1)(2), (3) or (7) under Regulation D that
are institutional investors ("Institutional Accredited Investors") in private
sales exempt from registration under the Securities Act and (C) to non-U.S.
Persons outside the United States to whom the Initial Purchasers reasonably
believe offers and sales of the Notes may be made in reliance on Regulation S
under the Securities Act in transactions meeting the requirements of Regulation
S. Each Initial Purchaser represents and warrants that it is a Qualified
Institutional Buyer, with such knowledge and experience in financial and
business matters as is necessary to evaluate the merits and risks of an
investment in the Notes, and is acquiring its interest in the Notes not with a
view to the distribution or resale thereof, except resales in compliance with
the registration requirements or exemption provisions of the Securities Act and
that neither it, nor anyone acting on its behalf, will offer the Notes so as to
bring the issuance and sale of the Notes within the provisions of Section 5 of
the Securities Act. The Company acknowledges and agrees that each Initial
Purchaser may sell Securities to any affiliate of such Initial Purchaser and
that any such affiliate may sell Securities purchased by it to the Initial
Purchasers; provided, in each case, that such sales are made in accordance with
the provisions of this Section 3. Each Initial Purchaser agrees that, prior to
or simultaneously with the confirmation of sale by such Initial Purchaser to any
purchaser of any of the Securities purchased by the Initial Purchasers from the
Company
13
pursuant hereto, such Initial Purchaser shall furnish to that purchaser a copy
of the Offering Memorandum (and any amendment thereof or supplement thereto that
the Company shall have furnished to the Initial Purchasers prior to the date of
such confirmation of sale). In addition to the foregoing, each Initial Purchaser
agrees and understands that the Company and, for purposes of the opinions to be
delivered to the Initial Purchasers pursuant to Sections 6(c), 6(d) and 6(e)
hereof, counsel to the Company and to the Initial Purchasers, respectively, may
rely upon the accuracy and truth of the foregoing representations, warranties
and covenants in this Section 3 and the Initial Purchasers and the Company
hereby consent to such reliance.
4. DELIVERY OF AND PAYMENT FOR THE NOTES. (a) Delivery of and
payment for the Notes shall be made at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, 425 Lexington Avenue, New York, New York, or at such other place as
shall be agreed upon by the Initial Purchasers and the Company, at 10:00 A.M.,
New York City time, on November 26, 1996 or at such other time or date, not
later than five full business days thereafter, as shall be agreed upon by the
Initial Purchasers and the Company (such date and time of payment and delivery
being herein called the "Closing Date").
(b) On the Closing Date, payment of the purchase price for the Notes
shall be made to the Company by wire transfer of immediately available funds to
such account or accounts as the Company shall specify prior to the Closing Date
or by such other means as the parties hereto shall agree prior to the Closing
Date against delivery to the Initial Purchasers through the book-entry
facilities of The Depository Trust Company (the "Depositary") or otherwise of
the Notes. Upon delivery, the Notes sold to Qualified Institutional Buyers and
pursuant to Regulation S shall each be represented by a global note, registered
in the name of the Depositary or its nominee and Notes sold to Institutional
Accredited Investors shall be represented by physical Notes registered in the
names requested by the Initial Purchasers, in each case in such denominations as
the Initial Purchasers shall request in writing not less than two full business
days prior to the Closing Date. For the purpose of expediting the checking and
packaging of certificates evidencing the Notes, the Company agrees to make such
certificates available for inspection by the Initial Purchasers at least 24
hours prior to the Closing Date.
5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees with the
Initial Purchasers:
(a) To furnish to the Initial Purchasers, without charge, as many
copies of the Offering Memorandum and any supplements and amendments thereto as
they may reasonably request.
(b) To advise the Initial Purchasers promptly and, if requested,
confirm such advice in writing, of the happening of any event which makes any
statement of a material fact made in the Offering Memorandum untrue or which
requires the making of any additions to or changes in the Offering Memorandum
(as amended or supplemented from time to time) in order to make the statements
therein, in light of the circumstances under which they were
14
made, not misleading and not to effect such amendment or supplementation without
the consent of the Initial Purchasers; to advise the Initial Purchasers promptly
of any order preventing or suspending the use of the preliminary offering
memorandum or the Offering Memorandum, of the suspension of the qualification of
the Securities for offering or sale in any jurisdiction and of the initiation or
threatening of any proceeding for any such purpose; and to use best efforts to
prevent the issuance of any such order preventing or suspending the use of the
preliminary offering memorandum or the Offering Memorandum or suspending any
such qualification and, if any such suspension is issued, to obtain the lifting
thereof at the earliest possible time.
(c) Prior to making any amendment or supplement to the Offering
Memorandum, the Company shall furnish a copy thereof to the Initial Purchasers
and counsel to the Initial Purchasers and will not effect any such amendment or
supplement to which the Initial Purchasers shall reasonably object by notice to
the Company after a reasonable period to review, which shall not in any case be
longer than five business days after receipt of such copy.
(d) If, at any time prior to completion of the distribution of the
Notes by the Initial Purchasers to other purchasers, any event shall occur or
condition exist as a result of which it is necessary, in the opinion of counsel
for the Initial Purchasers or counsel for the Company, to amend or supplement
the Offering Memorandum in order that the Offering Memorandum will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in light of the
circumstances existing at the time it is delivered to a purchaser, or if it is
necessary to amend or supplement the Offering Memorandum to comply with
applicable law, to promptly prepare such amendment or supplement as may be
necessary to correct such untrue statement or omission so that the Offering
Memorandum, as so amended or supplemented, will comply with applicable law and
to furnish to the Initial Purchasers such number of copies thereof as they may
reasonably request. The Initial Purchasers' delivery of any such amendment or
supplement shall not constitute a waiver of any of the conditions set forth in
Section 6 hereof.
(e) So long as the Notes are outstanding and are "Restricted
Securities" within the meaning of Rule 144(a)(3) under the Securities Act, to
furnish to holders of the Notes and prospective purchasers of Notes designated
by such holders, upon request of such holders or such prospective purchasers,
the information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act, unless the Company is then subject to and in compliance with
Section 13 or 15(d) of the Exchange Act.
(f) For a period of three years following the Closing Date, to
furnish to the Initial Purchasers copies of any annual reports and current
reports filed with the Commission on Forms 20-F, 6-K, or such other similar
forms as may be designated by the Commission under the Exchange Act or any rule
or regulation of the Commission thereunder and any compliance certificate or
notice of default or event of default furnished by the Company to the Trustee or
to the holders of the Notes pursuant to the Indenture.
15
(g) To use its reasonable best efforts to qualify the Notes for sale
under the securities or Blue Sky laws of such jurisdictions as the Initial
Purchasers may reasonably designate and to continue such qualifications in
effect so long as reasonably required for the distribution of the Notes. The
Company will also arrange for the determination of the eligibility for
investment of the Notes under the laws of such jurisdictions as the Initial
Purchasers may reasonably request. Notwithstanding the foregoing, the Company
and its Subsidiaries shall not be obligated to register or qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which they are
not so registered or qualified, to file a general consent to service of process
in any jurisdiction or to subject themselves to taxation in any jurisdiction if
they are not otherwise so subject.
(h) To promptly advise the Initial Purchasers of the receipt by the
Company or the Guarantors of any notification with respect to the suspension of
the qualification of the Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
(i) To comply with the Registration Rights Agreement.
(j) To assist the Initial Purchasers in arranging to cause the Notes
to be designated Private Offerings, Resales and Trading through Automated
Linkages Market ("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 and the Notes to be eligible for
clearance and settlement through the Depository Trust Company (the "DTC"), the
Euroclear System and Cedel Bank, societe anonyme.
(k) Not to, and will cause its affiliates (as such term is defined
in Rule 501(b) under the Securities Act) not to, 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 of the Notes under the Securities
Act.
(l) Except following the effectiveness of the Exchange Offer or the
Shelf Registration Statement, as the case may be, not to, and will cause its
affiliates (as such term is defined in Rule 501(b) under the Securities Act) not
to, and will not authorize or knowingly permit any person acting on its behalf
to, solicit any offer to buy or offer to 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 by means of any directed selling
efforts (as defined in Rule 902 under the Securities Act) in the United States
in connection with the Notes being offered and sold pursuant to Regulation S or
in any manner involving a public offering within the meaning of Section 4(2) of
the Securities Act.
(m) To apply the net proceeds from the sale of the Notes as set
forth in the Offering Memorandum under the caption "Use of Proceeds".
16
(n) For a period of 90 days from the date of the Offering
Memorandum, not to offer for sale, sell, contract to sell or otherwise dispose
of, directly or indirectly, or file a registration statement for, or announce
any offer, sale, contract for sale of or other disposition of any debt
securities issued or guaranteed by the Company (other than the Notes or the
Exchange Notes) without the prior written consent of the Initial Purchasers,
which consent shall not be unreasonably withheld.
(o) In connection with the offering, until the Initial Purchasers
shall have notified the Company of the completion of the resale of the Notes,
neither the Company nor any of its affiliated purchasers (as defined in Rule
10b-6 under the Exchange Act), either alone or with one or more other persons,
will bid for or purchase, for any account in which it or any of its affiliated
purchasers has a beneficial interest, any Notes, or attempt to induce any person
to purchase any Notes, except as contemplated by the Exchange Offer; and neither
it nor any of its affiliated purchasers will make bids or purchase for the
purpose of creating actual, or apparent, active trading in or of raising the
price of the Notes, except as contemplated by the Exchange Offer.
(p) Promptly, and in any event not more than 30 days after the
Closing Date, (i) make application to the Central Bank for the Registration
Certificate and thereafter do all things reasonably necessary to obtain the
Registration Certificate and provide evidence thereof to the Initial Purchasers
and (ii) do all things reasonably necessary to obtain the approval of the
Central Bank, as soon as practicable after such approval is necessitated, to
make any payment in dollars not set forth in the Registration Certificate or to
make any payment provided for therein earlier than its originally scheduled date
for payment.
(q) Promptly after their execution and delivery, procure the
notarization and consularization of this Agreement, the Registration Rights
Agreement and the Indenture.
6. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS. The respective
obligations of the several Initial Purchasers hereunder are subject to the
accuracy, on the date hereof and on the Closing Date, of the representations and
warranties of the Company and the Guarantors contained herein, to the accuracy
of the statements of the Company made in any certificates delivered pursuant to
provisions hereof, to the performance by the Company and the Guarantors of their
obligations hereunder, and to each of the following additional terms and
conditions:
(a) All consents, waivers and approvals necessary for the
consummation of the transactions contemplated by the Transaction Documents shall
have been obtained and shall be in full force and effect on the Closing Date.
(b) All corporate proceedings and other legal matters incident to
the authorization, form and validity of each of the Transaction Documents, the
Notes and the Offering Memorandum, and all other legal matters relating to the
Transaction Documents and the transactions contemplated thereby shall be
reasonably satisfactory in all material respects to counsel for the Initial
Purchasers, and the Company shall have furnished to such counsel
17
all documents and information that they may reasonably request to enable them to
pass upon such matters.
(c) ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, U.S. counsel to the Company and the
Guarantors, shall have furnished to the Initial Purchasers their written opinion
addressed to the Initial Purchasers and dated the Closing Date, in form and
substance reasonably satisfactory to the Initial Purchasers, substantially to
the effect set forth in Exhibit B hereto.
(d) (i) ▇▇▇▇▇ & Rameh, Brazilian counsel to the Company and the
Guarantors organized under the laws of Brazil, shall have furnished to the
Initial Purchasers their written opinion addressed to the Initial Purchasers and
dated the Closing Date, in form and substance reasonably satisfactory to the
Initial Purchasers, substantially to the effect set forth in Exhibit C-1 hereto;
(ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Esq., General Counsel of the Company, shall have furnished
to the Initial Purchasers his written opinion addressed to the Initial
Purchasers and dated the Closing Date, in form and substance reasonably
satisfactory to the Initial Purchasers, substantially to the effect set forth in
Exhibit C-2 hereto; and (iii) ▇▇▇▇▇▇, Westwood & Riegels, British Virgin Islands
counsel to TVA Communications Ltd., shall have furnished to the Initial
Purchasers their written opinion addressed to the Initial Purchasers and dated
the Closing Date, in form and substance reasonably satisfactory to the Initial
Purchasers, substantially to the effect set forth in Exhibit C-3 hereto.
(e) The Initial Purchasers shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions, dated
the Closing Date, with respect to such matters as the Initial Purchasers may
reasonably require, and the Company shall have furnished to such counsel such
documents and information as they reasonably request for the purpose of enabling
them to pass upon such matters.
(f) The Initial Purchasers shall have received from Machado, Meyer,
Sendacz e Opice, Brazilian counsel for the Initial Purchasers, such opinion or
opinions, dated the Closing Date, with respect to such matters as the Initial
Purchasers may reasonably require, and the Company shall have furnished to such
counsel such documents and information as they reasonably request for the
purpose of enabling them to pass upon such matters.
(g) With respect to the letter of Coopers & ▇▇▇▇▇▇▇ delivered to the
Initial Purchasers concurrently with the execution of this Agreement (the
"initial letter"), the Company shall have furnished to the Initial Purchasers a
letter (the "bring-down letter") from Coopers & ▇▇▇▇▇▇▇ addressed to the Initial
Purchasers and dated the Closing Date (1) confirming that it is an independent
public accountant with respect to the Company under rule 101 of the American
Institute of Certified Public Accountants' Code of Professional Conduct, and its
interpretations and rulings and (ii) confirming, as of the date of the
bring-down letter (or, with respect to matters involving changes or developments
since the date as of which specified financial information is given in the
Offering Memorandum, as of a date not more than five business days prior to the
date of the bring-down letter), the conclusions and findings of the firm with
respect to the financial information and other matters covered by the initial
letter are accurate. In addition, the Company shall have
18
received letters from Coopers & ▇▇▇▇▇▇▇ to the effect that the Company may use,
in connection with the offering and sale of the Notes, the audited financial
statements of the Company prepared by such accountants and included in the
Offering Memorandum.
(h) The Company shall have furnished to the Initial Purchasers a
certificate, dated the Closing Date, of its President and its chief financial
officer stating that (A) such officers have carefully examined the Offering
Memorandum, (B) in their opinion, as of the date hereof, the Offering Memorandum
did not include any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and since the date hereof, no event has
occurred which should have been set forth in a supplement or amendment to the
Offering Memorandum and (C) to the best of their knowledge after reasonable
investigation, as of the Closing Date, the representations and warranties of the
Company and the Guarantors in this Agreement are true and correct, the Company
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date, and subsequent
to the date of the most recent financial statements in the Offering Memorandum,
there has been no material adverse change in the financial position or results
of operation of the Company and its Subsidiaries or any event or development
that would be reasonably likely to result in a Material Adverse Effect, except
as set forth in the Offering Memorandum.
(i) The Initial Purchasers shall have received on the date hereof
the Registration Rights Agreement and the Agency Agreement executed and
delivered by a duly authorized officer of the Company.
(j) The Notes shall have been approved by the NASD for trading in
the PORTAL Market.
(k) The Indenture shall have been duly executed and delivered by the
Company, the Guarantors and the Trustee and the Notes shall have been duly
executed and delivered by the Company and duly authenticated by the Trustee.
(l) If any event shall have occurred that requires the Company under
Section 5(d) hereof to prepare an amendment or supplement to the Offering
Memorandum, such amendment or supplement shall have been prepared, the Initial
Purchasers shall have been given a reasonable opportunity to comment thereon,
and copies thereof shall have been delivered to the Initial Purchasers
reasonably in advance of the Closing Date.
(m) There shall not have occurred any invalidation of Rule 144A
under the Securities Act by any court or any withdrawal or proposed withdrawal
of any rule or regulation under the Securities Act or the Exchange Act by the
Commission or any amendment or proposed amendment thereof by the Commission
which in the judgment of the Initial Purchasers would materially impair the
ability of the Initial Purchasers to purchase, hold or effect resales of the
Notes as contemplated hereby.
19
(n) At the Closing Date, after giving effect to the consummation of
the transactions contemplated by the Transaction Documents, there shall exist no
default or event of default under the Indenture.
(o) Neither the Company nor any of the Guarantors or their
respective Subsidiaries has sustained since the date of the latest audited
financial statements included in the Offering Memorandum any material loss or
interference with its business from fire, explosion, flood or other calamity,
regardless of whether covered by insurance, or from any labor dispute or court
or governmental action, order or decree, otherwise than as set forth or
contemplated in the Offering Memorandum; and since September 30, 1996, except
for the transactions contemplated by the Offering Memorandum (exclusive of any
amendment or supplement), there shall not have been any change in the capital
stock or long-term debt of the Company or any event or development involving a
prospective change that would be reasonably likely to result in a change in the
general affairs, management, financial condition, results of operations,
business or prospects of the Company and its Subsidiaries the effect of which,
in any such case described above, is, in the judgment of the Initial Purchasers,
so material and adverse as to make it impracticable or inadvisable to proceed
with the sale or delivery of the Notes on the terms and in the manner
contemplated in the Offering Memorandum (exclusive of any amendment or
supplement).
(p) Subsequent to the execution and delivery of this Agreement (i)
no downgrading shall have occurred in the rating accorded the Notes or any of
the Company's or its Subsidiaries, other debt securities by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) of the rules and regulations of the
Commission under the Securities Act, and (ii) no such organization shall have
publicly announced that it has under surveillance or review (other than an
announcement with positive implications of a positive upgrading) its rating of
the Notes or any of the Company's or its Subsidiaries, other debt securities.
(q) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange, the Sao
Paolo Stock Exchange, the Rio de Janeiro Stock Exchange or the over-the-counter
market, shall have been suspended or limited, or minimum prices shall have been
established on any such exchange or such market by the Comissao de Valores
Mobiliarios, the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, or trading in any securities of the
Company on any exchange or in the over-the-counter market shall have been
suspended or, (ii) a general moratorium on commercial banking activities shall
have been declared by United States Federal or New York State or Brazilian
authorities, or (iii) an outbreak or escalation of hostilities or a declaration
by the United States or Brazil of a national emergency or war, (iv) a change or
development involving a prospective change in Brazilian or Japanese taxation
adversely affecting the Company, the Notes, the Guarantees or the transfer
thereof or the imposition of exchange controls by Brazil; or (v) a material
adverse change in general economic, political or financial conditions (or the
effect of international conditions on the financial markets in the United States
or Brazil shall be such) the effect of
20
which, in the case of this clause (v), is, in the judgment of the Initial
Purchasers, so material and adverse as to make it impracticable or inadvisable
to proceed with the sale or delivery of the Notes on the terms and in the manner
contemplated by this Agreement and the Offering Memorandum (exclusive of any
amendment or supplement).
(r) The Initial Purchasers shall have received evidence reasonably
satisfactory to them that the appointment of CT Corporation System as agent for
service of process of the Company and the Guarantors pursuant to Section 21
hereof and pursuant to the Indenture has been accepted by such agent.
(s) The Initial Purchasers shall have received a copy of the letter
from Central Bank in form and substance satisfactory to them, approving the
transactions contemplated by the Offering Memorandum.
(t) No action shall have been taken and no United States, Brazilian
or other statute, rule, regulation or order shall have been enacted, adopted or
issued by any United States or Brazilian governmental agency which would, as of
the Closing Date, prevent the issuance or sale of the Notes; and no injunction,
restraining order or order of any other nature by a United States, Brazilian or
other federal or state court of competent jurisdiction shall have been issued as
of the Closing Date which would prevent the issuance or sale of the Notes.
(u) Prior to the Closing Date, the Company and the Guarantors shall
have furnished to the Initial Purchasers such further information, certificates,
opinions and documents as it may reasonably request.
(v) The Shareholder Commitments shall have been executed and
delivered and shall be in full force and effect.
(w) The Company and Galaxy Brasil shall have entered into an
amendment to the Galaxy Brasil Leasing Facility (as defined in the Offering
Memorandum) to allow the Guarantee of the Notes by Galaxy Brasil as described in
the Offering Memorandum.
All opinions, letters and certificates mentioned above or elsewhere
in this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Initial Purchasers.
7. TERMINATION. The obligations of the Initial Purchasers hereunder
may be terminated by the Initial Purchasers, in their absolute discretion, by
notice given to and received by the Company prior to delivery of and payment for
the Notes if, prior to that time, any of the conditions described in Section 6
shall not have been satisfied.
8. DEFAULTING INITIAL PURCHASERS. (a) If, on the Closing Date, any
Initial Purchaser defaults in the performance of its obligations under this
Agreement, the non-defaulting Initial Purchasers may make arrangements for the
purchase of the Notes that
21
would have been purchased by such defaulting Initial Purchaser by other persons
satisfactory to the Company and the non-defaulting Initial Purchasers, but if no
such arrangements are made within 36 hours after such default, this Agreement
shall terminate without liability on the part of the non-defaulting Initial
Purchasers, the Company or the Guarantors, except that the Company and the
Guarantors will continue to be liable for the payment of expenses to the extent
set forth in Sections 9 and 13 and except that the provisions of Sections 10 and
11 shall not terminate and shall remain in effect. As used in this Agreement,
the term "Initial Purchaser" includes, for all purposes of this Agreement unless
the context otherwise requires, any party not listed in Schedule 1 hereto who,
pursuant to this Section 8, purchases Notes which a defaulting Initial Purchaser
agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Initial
Purchaser of any liability it may have for damages caused by its default. If
other purchasers agree to purchase the Notes of a defaulting Initial Purchaser,
either the non-defaulting Initial Purchasers or the Company may postpone the
Closing Date for up to seven full business days in order to effect any changes
that in the opinion of counsel for the Company or counsel for the Initial
Purchasers may be necessary in the Offering Memorandum, the Transaction
Documents or in any other document or arrangement, and the Company agrees to
file promptly any amendment or supplement to the Offering Memorandum that
effects any such changes.
9. REIMBURSEMENT OF INITIAL PURCHASERS' EXPENSES. Notwithstanding
anything to the contrary contained herein, if (a) this Agreement shall have been
terminated pursuant to Section 7, (b) the Company shall fail to tender the Notes
for delivery to the Initial Purchasers for any reason permitted under this
Agreement or (c) the Initial Purchasers shall decline to purchase the Notes for
any reason permitted under this Agreement, the Company and the Guarantors shall
reimburse the Initial Purchasers for the fees and expenses of their counsel and
for such other out-of-pocket expenses as shall have been reasonably incurred by
them in connection with this Agreement and the proposed purchase of the Notes.
If this Agreement is terminated pursuant to Section 8 by reason of the default
of one or more of the Initial Purchasers, the Company and the Guarantors shall
not be obligated to reimburse any defaulting Initial Purchaser on account of
such expenses.
10. INDEMNIFICATION. (a) The Company and each Guarantor, jointly and
severally, shall indemnify and hold harmless each of the Initial Purchasers,
their respective affiliates, and their respective officers, directors,
employees, representatives and agents, and each person, if any, who controls any
of the Initial Purchasers within the meaning of the Securities Act or the
Exchange Act (collectively referred to for purposes of this Section 10 and
Section 11 as the Initial Purchasers) from and against any loss, claim, damage,
expense or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, expense, liability or
action relating to purchases and sales of Notes), to which the Initial
Purchasers may become subject, under the Securities Act, the Exchange Act or any
other foreign, federal or state statutory law or regulation, at common law or
otherwise, insofar as such loss, claim, damage, expense, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in the preliminary offering memorandum or
the Offering Memorandum or in any
22
amendment or supplement thereto or any information provided by the Company
pursuant to Section 5(d) hereof or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and shall reimburse the Initial Purchasers promptly upon
demand for any legal or other expenses reasonably incurred by the Initial
Purchasers in connection with investigating or defending or preparing to defend
against or appearing as a third party witness in connection with any such loss,
claim, damage, expense, liability or action as such expenses are incurred;
provided, however, that the Company and the Guarantors shall not be liable in
any such case to the extent that any such loss, claim, damage, expense,
liability or action arises out of, or is based upon, an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with the Initial Purchasers'
Information; and provided further that with respect to any such untrue statement
or omission made in the preliminary offering memorandum, the indemnity agreement
contained in this Section 10(a) shall not inure to the benefit of any Initial
Purchaser, to the extent that the sale to the person asserting any such loss,
claim, damage, expense, liability or action was an initial resale by such
Initial Purchaser and any such loss, claim, damage, liability or action of such
Initial Purchaser is a result of the fact that both (i) a copy of the Offering
Memorandum was not sent or given to such person at or prior to the written
confirmation of the sale of such Notes to such person and (ii) the untrue
statement or omission in the preliminary offering memorandum was corrected in
the Offering Memorandum unless, in either case, such failure to deliver the
Offering Memorandum was a result of non-compliance by the Company with Section
5(d).
(b) Each Initial Purchaser, severally and not jointly, shall
indemnify and hold harmless the Company and each Guarantor, their respective
affiliates, and their respective officers, directors, employees, representatives
and agents, and each person, if any, who controls the Company or Guarantor
within the meaning of the Securities Act or the Exchange Act (collectively
referred to for purposes of this Section 10 and Section 11 as the Company), from
and against any loss, claim, damage, expense or liability, joint or several, or
any action in respect thereof, to which the Company may become subject, under
the Securities Act, the Exchange Act or any other federal or state statutory law
or regulation, at common law or otherwise, insofar as such loss, claim, damage,
expense, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in the
preliminary offering memorandum or the Offering Memorandum or in any amendment
or supplement thereto or (ii) the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with such Initial Purchaser's Information, and shall
reimburse the Company promptly upon demand for any legal or other expenses
reasonably incurred by the Company or any Guarantor in connection with
investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred.
23
(c) Promptly after receipt by an indemnified party under this
Section 10 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 10, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 10 except to the extent that such
indemnifying party has been materially prejudiced by such failure and, provided
further, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have to an indemnified party otherwise than
under this Section 10. If any such claim or action shall be brought against an
indemnified party, it shall notify the indemnifying party thereof, and the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 10 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that each indemnified party shall
have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel for the indemnified party will be at
the expense of such indemnified party unless (1) the employment of counsel by
the indemnified party has been authorized in writing by the indemnifying party,
(2) the indemnified party has reasonably concluded (based on advice of counsel)
that there may be legal defenses available to it or other indemnified parties
that are different from or in addition to those available to the indemnifying
party, (3) a conflict or potential conflict exists (based on advice of counsel
to the indemnified party) between the indemnified party and the indemnifying
party (in which case the indemnifying party will not have the right to direct
the defense of such action on behalf of the indemnified party) or (4) the
indemnifying party has not in fact employed counsel to assume the defense of
such action within a reasonable time after receiving notice of the commencement
of the action, in each of which cases the reasonable fees, disbursements and
other charges of counsel for the indemnified party will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm of attorneys (in addition to any
local counsel) at any one time for all such indemnified party or parties. Each
indemnified party, as a condition of the indemnity agreements contained in
Sections 10(a) and 10(b), shall use all reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. No indemnifying
party shall be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with its written consent or if there be a final judgment in favor of the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment. 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 indemnification is or
could have been sought hereunder by such
24
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.
The obligations of the Company, each Guarantor and each Initial
Purchaser in this Section 10 and in Section 11 are in addition to any other
liability which the Company, any Guarantor or any Initial Purchaser, as the case
may be, may otherwise have, including in respect of any breaches of
representations, warranties and agreements made herein by any such party.
11. CONTRIBUTION. If the indemnification provided for in Section 10
is unavailable or insufficient to hold harmless an indemnified party under
Section 10(a) or 10(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (1) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company and the Guarantors on the
one hand and to each Initial Purchaser on the other from the offering of the
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 Guarantors on the one hand and each Initial Purchaser on the
other with respect to the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Guarantors on the one hand and each Initial Purchaser on the other with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Notes purchased under this Agreement
(before deducting expenses) received by the Company and the Guarantors bear to
the total discounts and commissions received by each Initial Purchaser with
respect to the Notes purchased under this Agreement, in each case as set forth
in the table on the cover page of the Offering Memorandum. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company and the
Guarantors on the one hand or the Initial Purchasers' Information on the other,
the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
Company, the Guarantors and the Initial Purchasers agree that it would not be
just and equitable if contributions pursuant to this Section 11 were to be
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
Section 11 shall be deemed to include, for purposes of this Section 11, 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 11, an Initial Purchaser shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Notes sold and distributed by it was offered to
purchasers exceeds the amount of any damages which such Initial Purchaser has
otherwise paid or become liable to pay by reason of any untrue or alleged untrue
statement or omission
25
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. Each Initial Purchaser's obligation to contribute as provided
in this Section 11 are several in proportion to their respective purchase
obligations and not joint.
12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchasers, the Company,
the Guarantors and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except as
provided in Sections 10 and 11 with respect to affiliates, officers, directors,
employees, representatives, agents and controlling persons of the Company, the
Guarantors and the Initial Purchasers and in Section 5(e) with respect to
holders and prospective purchasers of the Notes. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 12, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
13. EXPENSES. The Company agrees with the Initial Purchasers to pay
(a) the costs incident to the authorization, issuance, sale, preparation and
delivery of the Notes and any taxes payable in that connection, (b) the costs
incident to the preparation and printing of any preliminary offering memorandum,
the Offering Memorandum and any amendments or supplements thereto, (c) the costs
of distributing any preliminary offering memorandum, the Offering Memorandum and
any amendments or supplements thereto, (d) the costs of printing, reproducing
and distributing the Transaction Documents, (e) the costs incident to the
preparation, printing and delivery of the certificates representing the Notes,
including stamp duties and transfer taxes, if any, payable upon issuance of any
of the Notes, (f) the fees and disbursements of the Company's counsel (g) the
fees and disbursements of accountants for the Company, (h) any fees charged by
rating agencies for rating the Notes, (i) the fees and expenses of qualifying
the Notes under securities laws of the several jurisdictions as provided in
Section 5(g) and of preparing, printing and distributing a Blue Sky memorandum
(including related reasonable fees and expenses of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel to the Initial Purchasers), (j) the fees and expenses of the Trustee and
any paying agent (including related fees and expenses of any counsel for such
parties), (k) all expenses and listing fees incurred in connection with the
application for quotation of the Notes on the PORTAL Market and the clearance of
the Notes for book-entry transfer through the Depository Trust Company, the
Euroclear System and Cedel Bank, societe anonyme, and (1) all other reasonable
costs and expenses incident to the performance of the Company's obligations
hereunder which are not otherwise specifically provided for in this Section;
provided, however, that except as provided in this Section 13 and Section 9, the
Initial Purchasers shall pay the first $500,000 of their own aggregate costs and
expenses, including the costs and expenses of their regular and local counsels
and any transfer taxes on the Notes which they may sell, and the Company shall
pay or reimburse any such costs and expenses to the extent such costs and
expenses exceed $500,000, subject to a maximum of $500,000 payable or
reimbursable hereunder.
26
14. SURVIVAL. The respective indemnities, rights of contribution,
representations, warranties and agreements and statements of the Company, the
Guarantors and the Initial Purchasers contained in this Agreement or in any
certificate delivered pursuant to this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement or in any certificate delivered
pursuant to this Agreement, shall survive the delivery of and payment for the
Notes and shall remain in full force and effect, regardless of any termination
or cancellation of this Agreement or any investigation made by or on behalf of
any of them or any person controlling any of them.
15. NOTICES. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to any of the Initial Purchasers, shall be delivered or
sent by mail or facsimile transmission to Chase Securities Inc., ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(Fax: ▇▇▇-▇▇▇▇);
(b) if to the Company or the Guarantors, shall be delivered or
sent by mail or facsimile transmission to the address of the Company
set forth in the Offering Memorandum, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ (Fax:
▇▇▇-▇▇-▇▇-▇▇▇-▇▇▇▇);
with a copy by mail or facsimile transmission to ▇▇▇▇▇, ▇▇▇▇▇ &
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ (Fax: ▇▇▇-▇▇▇▇).
provided, however, that any notice to the Initial Purchasers pursuant to Section
10(c) shall also be delivered or sent by mail to the Initial Purchasers at Chase
Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Legal Department. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof.
16. DEFINITION OF TERMS. For purposes of this Agreement, "business
day" means any day on which the New York Stock Exchange, Inc. is open for
trading and "Subsidiary" has the meaning ascribed thereto in the Offering
Memorandum.
17. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
19. AMENDMENTS. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
27
20. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to the affect the meaning
or interpretation of, this Agreement.
21. SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE;
CURRENCY INDEMNITY. (a) To the fullest extent permitted by applicable law, the
Company and each Guarantor irrevocably submit to the jurisdiction of any Federal
or State court in the City, County and State of New York, United States of
America, in any suit or proceeding based on or arising under this Agreement
(solely in connection with any such suit or proceeding), and irrevocably agree
that all claims in respect of such suit or proceeding may be determined in any
such court. The Company and each Guarantor irrevocably and fully waive the
defense of an inconvenient forum to the maintenance of such suit or proceeding.
The Company and each Guarantor hereby irrevocably designate and appoint CT
Corporation System, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇. (the
"Process Agent"), as the authorized agent of the Company and each Guarantor upon
whom process may be served in any such suit or proceeding, it being understood
that the designation and appointment of CT Corporation System as such authorized
agent shall become effective immediately without any further action on the part
of the Company or any Guarantor. The Company and each Guarantor represent to the
Initial Purchasers that they have notified the Process Agent of such designation
and appointment and that the Process Agent has accepted the same in writing. The
Company and each Guarantor hereby irrevocably authorize and direct the Process
Agent to accept such service. The Company and each Guarantor further agree that
service of process upon the Process Agent and written notice of said service to
the Company or such Guarantor mailed by prepaid registered first class mail or
delivered to the Process Agent at its principal office, shall be deemed in every
respect effective service of process upon the Company or such Guarantor in any
such suit or proceeding. Nothing herein shall affect the right of any Initial
Purchaser or any person controlling such Initial Purchaser to serve process in
any other manner permitted by law. The Company and each Guarantor further agree
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 the
Company or any Guarantor have any outstanding obligations under this Agreement,
the Notes, the Indenture, the Guarantees or any other Transaction Document. To
the extent that the Company or any Guarantor have or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service of note, attachment prior to judgment, attachment in aid of
execution, executor or otherwise) with respect to itself or its property, the
Company and each Guarantor hereby irrevocably waive such immunity in respect of
their obligations under this Agreement, to the extent permitted by law.
(b) The obligation of the parties to make payments hereunder is in
U.S. dollars (the "Obligation Currency") and such obligation shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than the Obligation Currency
or any other realization in such other currency, whether as proceeds of set-off,
security, guarantee, distributions, or otherwise, except to the
28
extent to which such tender, recovery or realization shall result in the
effective receipt by the party which is to receive such payment of the full
amount of the Obligation Currency expressed to be payable hereunder, and the
party liable to make such payment agrees to indemnify the party which is to
receive such payment (as an additional, separate and independent cause of
action) for the amount (if any) by which such effective receipt shall fall short
of the full amount of the Obligation Currency expressed to be payable hereunder
and such obligation to indemnify shall not be affected by judgment being
obtained for any other sums due under this Agreement.
22. JOINT AND SEVERAL LIABILITY. Each subsidiary of the Company, by
its execution and delivery of a counterpart to this Agreement, agrees that it
shall be joint and severally liable for all obligations an liabilities of the
Company.
29
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument will become a binding agreement between the Company, the
Guarantors and the several Initial Purchasers in accordance with its terms.
Very truly yours,
TEVECAP S.A.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
TVA SISTEMA DE TELEVISAO S.A.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
TVA COMMUNICATIONS LTD.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
30
GALAXY BRASIL S.A.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
TVA SUL PARTICIPACOES S.A.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
COMERCIAL CABO TV SAO PAULO LTDA.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
31
TVA PARANA LTDA.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
TVA ALPHA CABO LTDA.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
CCS CAMBORIU CABLE SYSTEM DE
TELECOMUNICACOES LTDA.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
TCC TV A CABO LTDA.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
32
TVA SUL FOZ DO IGUACU LTDA.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
33
Accepted:
CHASE SECURITIES INC.
By:
---------------------------------
Name:
Title:
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By:
---------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By:
---------------------------------
Name:
Title:
BOZANO, ▇▇▇▇▇▇▇▇ SECURITIES, INC.
By:
---------------------------------
Name:
Title:
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
: ss.
COUNTY OF NEW YORK )
On this ____ day of November, 1996, before me, a notary public
within and for said county, personally appeared _____________________, to me
personally known who being duly sworn, did say that he was
the___________________________ of Chase Securities Inc., one of the persons
described in and which executed the foregoing instrument, and acknowledges said
instrument to be the free act and deed of said corporation.
..............................................
[NOTARIAL SEAL]
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
: ss.
COUNTY OF NEW YORK )
On this ____ day of November, 1996, before me, a notary public
within and for said county, personally appeared _____________________, to me
personally known who being duly sworn, did say that he was
the___________________________ of Bear, ▇▇▇▇▇▇▇ & Co. Inc., one of the persons
described in and which executed the foregoing instrument, and acknowledges said
instrument to be the free act and deed of said corporation.
..............................................
[NOTARIAL SEAL]
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
: ss.
COUNTY OF NEW YORK )
On this ____ day of November, 1996, before me, a notary public
within and for said county, personally appeared _____________________, to me
personally known who being duly sworn, did say that he was
the___________________________ of ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities
Corporation, one of the persons described in and which executed the foregoing
instrument, and acknowledges said instrument to be the free act and deed of said
corporation.
..............................................
[NOTARIAL SEAL]
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
: ss.
COUNTY OF NEW YORK )
On this ____ day of November, 1996, before me, a notary public
within and for said county, personally appeared _____________________, to me
personally known who being duly sworn, did say that he was
the___________________________ of Bozano, ▇▇▇▇▇▇▇▇ Securities, Inc., one of the
persons described in and which executed the foregoing instrument, and
acknowledges said instrument to be the free act and deed of said corporation.
..............................................
[NOTARIAL SEAL]
SCHEDULE 1
Principal
Amount
Initial Purchasers of Securities
------------------ -------------
Chase Securities Inc. ......................................... $162,500,000
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation ........... $ 43,750,000
Bear, ▇▇▇▇▇ s & Co. ........................................... $ 35,750,000
Bozano, ▇▇▇▇▇▇▇▇ Securities, Inc. ............................. $ 8,000,000
------------
Total ......................................................... $250,000,000
============
EXHIBIT A
FORM OF REGISTRATION RIGHTS AGREEMENT
EXHIBIT B
FORM OF OPINION OF ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
(i) Assuming that this Agreement has been duly authorized, executed and
delivered by the Company and each Subsidiary Guarantor under the laws of
Brazil, this Agreement has been duly executed and delivered by the Company
and each Subsidiary Guarantor under the laws of the State of New York;
(ii) Assuming that each of the Registration Rights Agreement
and the Agency Agreement has been duly authorized, executed and
delivered by the Company and each Subsidiary Guarantor under the
laws of Brazil, each of the Registration Rights Agreement and the
Agency Agreement has been duly executed and delivered by the Company
and each Subsidiary Guarantor under the laws of the State of New
York and constitutes a valid and legally binding agreement of the
Company and each Subsidiary Guarantor enforceable against the
Company and each such Subsidiary Guarantor in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and by general
equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) Assuming that the Indenture has been duly authorized,
executed and delivered by the Company and each Subsidiary Guarantor
under the laws of Brazil, the Indenture has been duly executed and
delivered by the Company and each Subsidiary Guarantor under the
laws of the State of New York and (assuming due execution and
delivery thereof by the Trustee and the Paying Agent) constitutes a
valid and legally binding agreement of the Company and each such
Subsidiary Guarantor enforceable against the Company and each such
Subsidiary Guarantor in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general equitable
principles (regardless of whether such enforceability is considered
in a proceeding in equity or at law);
(iv) The Notes are in the form contemplated by the Indenture
and, assuming the Notes have been duly authorized, executed and
delivered by the Company under the laws of Brazil, the Notes have
been duly executed and delivered by the Company, and (assuming due
execution by the Trustee, authentication by the Trustee, and payment
therefor as provided herein) have been duly and validly issued under
the laws of the State of New York and constitute valid and legally
binding obligations of the Company entitled to the benefits of the
Indenture and enforceable in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general equitable
principles (regardless of whether such enforceability is considered
in a proceeding in equity or at law);
(v) The execution, delivery and performance of each of the
Transaction Documents (as defined in the Purchase Agreement), the
issuance, authentication, sale and delivery of the Notes, compliance
with the terms thereof, and consummation by the Company and each
subsidiary of the Company of the transactions contemplated thereby,
will not result in any violation of any applicable U.S. Federal or
New York State statute or any order, rule or regulation of any U.S.
Federal or New York State court or governmental agency or body
having jurisdiction over the Company or any subsidiary of the
Company or any of their properties or assets; and, except for such
consents, approvals, authorizations, registrations or qualifications
as may be required under New York State securities laws in
connection with the purchase and distribution of the Notes by the
Initial Purchasers, no consent, approval, authorization or order of,
or filing or registration with, any such U.S. Federal or New York
State court or governmental agency or body is required for the
execution, delivery and performance of the Transaction Documents by
the Company and each subsidiary of the Company party to one or more
of the Transaction Documents, the issuance, authentication, sale and
delivery of the Notes and compliance with the terms thereof or the
consummation of the transactions contemplated thereby;
(vi) Each of the Transaction Documents conforms in all
material respects to the description thereof contained in the
Offering Memorandum;
(vii) Neither the Company nor any subsidiary of the Company is
an "investment company" or a company "controlled by" an investment
company within the meaning of the Investment Company Act and the
rules and regulations of the Commission thereunder; no registration
of the Company under the Investment Company Act is required in
connection with the issuance, offer, sale or delivery of the Notes
in the United States;
(viii) Assuming the Notes are issued, sold and delivered under
the circumstances contemplated by the Offering Memorandum and this
Agreement, that the representations and warranties and covenants of
the Initial Purchasers contained in Section 3 hereof are true,
correct and complete, and that the Initial Purchasers comply with
their covenants in Section 3 hereof, (A) registration under the
Securities Act of the Notes or qualification of the Indenture in
respect of the Notes under the Trust Indenture Act is not required
in connection with the offer and sale of the Notes to the Initial
Purchasers in the manner contemplated by the Offering Memorandum or
this Agreement, and (B) initial resales of the Notes by the Initial
Purchasers on the terms and in the manner set forth in the Offering
Memorandum and Section 3 hereof are exempt from the registration
requirements of the Securities Act.
(ix) The descriptions in the Offering Memorandum of contracts
and other documents are accurate in all material respects and fairly
present, as to such contracts and other documents described therein,
the information that would be required to be presented with respect
thereto if the Offering Memorandum were a prospectus included in a
registration statement on Form S-1 under the Securities Act; and the
statements in the Offering Memorandum under the caption "Income Tax
Considerations", insofar as such statements purport to summarize
federal laws of the United States referred to thereunder, fairly
summarize such laws in all material respects;
(x) As of its date, the Preliminary Offering Memorandum did,
and on the Closing Date, the Final Offering Memorandum will (except
for financial statements, the notes thereto and other financial and
statistical data included therein, as to which no opinion need be
expressed) comply on its face as to form in all material respects
with that which would be required by the Securities Act and the
rules and regulations of the Commission thereunder applicable to a
definitive prospectus forming part of a registration statement on
Form F-1 under the Securities Act;
(xi) Under the laws of the State of New York relating to
submission to jurisdiction, the Company has validly and irrevocably
submitted to the jurisdiction of any U.S. Federal or New York state
courts located in the Borough of Manhattan in The City of New York,
New York and has validly and irrevocably appointed CT Corporation as
its authorized agent for the purposes set forth in paragraph 21 of
this Agreement and Section 11.16 of the Indenture; and
(xii) The Warrant pursuant to which the Company may acquire an
additional 2.7% of TV Filme at a nominal exercise price is
irrevocable and constitutes a valid and legally binding agreement of
TV Filme, enforceable against it in accordance with its terms.
Such counsel shall also state that they have participated in
conferences with representatives of the Company and with representatives of its
independent accountants at which conferences the contents of the Offering
Memorandum, any amendment thereof and supplement thereto and related matters
were discussed, and, although such counsel has not independently verified and is
not passing upon and assumes no responsibility for the factual accuracy,
completeness or fairness of the statements contained in the Offering Memorandum,
except for those referred to in paragraphs (vi) and (ix) above, such counsel has
no reason to believe that the Offering Memorandum (except for the financial
statements and related schedules or other financial or statistical data included
in the Offering Memorandum, as to which such counsel need express no opinion) or
any amendment thereof or supplement thereto contains any untrue statement of a
material fact or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
EXHIBIT C-1
FORM OF OPINION OF ▇▇▇▇▇ & RAMEH
(i) Each of the Company and each Subsidiary of the Company organized under the
laws of Brazil has been duly incorporated and is validly existing as a
corporation in good standing under the laws of Brazil, is duly qualified as a
foreign corporation to do business in every Brazilian jurisdiction, and has all
power and authority necessary to own or hold its properties and to conduct the
businesses in which it is engaged;
(ii) The Company has the authorized capitalization set forth under
the caption "Capitalization" in the Offering Memorandum, and all of the
issued shares of capital stock of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and conform to
the description thereof contained in the Offering Memorandum; all of the
issued shares of capital stock of each Subsidiary of the Company organized
under the laws of Brazil have been duly and validly authorized and issued
and are fully paid and non-assessable; and the Service Agreement, pursuant
to which Televisao Show Time Ltda. and TVA Brasil Radioenlances Ltda. have
agreed to transfer the licenses held by them to the Company at nominal
cost is irrevocable and constitutes a valid and legally binding agreement
of Televisao Show Time Ltda. and TVA Brasil Radioenlances Ltda.,
enforceable against them in accordance with its terms;
(iii) Each of the Company and each Subsidiary of the Company
organized under the laws of Brazil party to one or more of the Transaction
Documents (as defined in the Purchase Agreement) has full right, power and
authority to execute and deliver each of the Transaction Documents to
which it is a party and to perform its obligations thereunder; and all
corporate action required to be taken by the Company and each such
Subsidiary for the due and proper authorization, execution and delivery of
each of the Transaction Documents and the consummation of the transactions
contemplated by each of the Transaction Documents has been duly and
validly taken;
(iv) This Agreement has been duly authorized, executed and delivered
by the Company and each Subsidiary of the Company organized under the laws
of Brazil signatory hereto;
(v) Each of the Registration Rights Agreement and the Agency
Agreement has been duly authorized, executed and delivered by the Company
and each Subsidiary Guarantor organized under the laws of Brazil and,
assuming that each of the Registration Rights Agreement and the Agency
Agreement constitutes a valid and binding agreement under New York state
law, constitutes a valid and legally binding agreement of the Company and
each Subsidiary Guarantor organized under the laws
36256741.1 100697 1749E 97390553
of Brazil enforceable against the Company and each such Subsidiary
Guarantor in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and by
general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(vi) The Indenture has been duly authorized, executed and delivered
by the Company and each Subsidiary Guarantor organized under the laws of
Brazil and (assuming due execution and delivery thereof by the Trustee and
the Paying Agent) assuming that the Indenture constitutes a valid and
binding agreement under New York state law, constitutes a valid and
legally binding agreement of the Company and each such Subsidiary
Guarantor enforceable against the Company and each such Subsidiary
Guarantor in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and by
general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(vii) The Notes have been duly authorized and executed by the
Company, (assuming due execution by the Trustee, authentication by the
Trustee and payment therefor as provided herein) have been duly and
validly issued and outstanding, and, assuming that the Notes constitute
valid and binding obligations under New York state law, constitute valid
and legally binding obligations of the Company entitled to the benefits of
the Indenture and enforceable in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally and by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at
law);
(viii) The Guarantees have been duly authorized and executed by the
Subsidiary Guarantors, have been duly and validly issued and, assuming
that the Guarantees constitute valid and binding obligations under New
York state law, constitute valid and legally binding obligations of the
Subsidiary Guarantors entitled to the benefits of the Indenture and
enforceable in accordance with their terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and by
general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(ix) The execution, delivery and performance of each of the
Transaction Documents, the issuance, authentication, sale and delivery of
the Notes and the Guarantees, compliance with the terms thereof, and
consummation by the Company and each Subsidiary of the Company of the
transactions contemplated thereby, will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any of its
Subsidiaries pursuant to, any material indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument known to such
counsel or identified to such counsel as being material to which the
Company or any Subsidiary of the Company is a party or by which the
Company or any Subsidiary of the Company is bound or to which any of the
property or assets of the Company or any Subsidiary of the Company is
subject, nor will such actions result in any violation of the provisions
of the charter or by-laws (or equivalent constitutive documents) of the
Company or any Subsidiary of the Company or any Brazilian statute or any
order, rule or regulation of any Brazilian court or governmental agency or
body having jurisdiction over the Company or any Subsidiary of the Company
or any of their properties or assets; and no consent, approval,
authorization or order of, or filing or registration with, any such
Brazilian court or governmental agency (including, without limitation, the
Comissao de Valores Mobiliaros) or body or stock exchange is required for
the execution, delivery and performance of the Transaction Documents by
the Company and each Subsidiary of the Company party to one or more of the
Transaction Documents, the issuance, authentication, sale and delivery of
the Notes and compliance with the terms thereof or the consummation of the
transactions contemplated thereby, except for (a) the certificate of prior
authorization of the Central Bank that has previously been obtained and is
in full force and effect, (b) the issuance by the Central Bank of the
Certificate of Registration permitting the Company to make remittances
from Brazil in U.S. dollars of the principal, interest and other amounts
in respect of the Notes (which such counsel has no reason to believe will
not be issued as a matter of formality promptly after the Company makes
proper application therefor), (c) the approval of the Central Bank for the
Company to make any payment in U.S. dollars not set forth in the
Certificate of Registration or to make any payment provided for therein
earlier than the due date therefor and (d) the ratification of the
Certificate of Registration for the Company to make any payment provided
therein later than 180 days after the due date thereof;
(x) the Shareholder Commitments have been duly authorized by all
requisite corporate action on the part of the shareholders party thereto
and the Company and constitute the valid and binding obligation of each of
them, enforceable against them in accordance with their terms;
(xi) The prior authorization of the Notes and Exchange Notes have
been obtained from the Central Bank; to the knowledge of such counsel
after due inquiry, there is no reason that the Registration Certificate
should not be issued by the Central Bank in due course;
(xii) The issuance, delivery and sale to the Initial Purchasers of
the Notes as contemplated by this Agreement or the issuance of the
Exchange Notes as contemplated by the Registration Rights Agreement are
not subject to any tax imposed by any tax authority under the laws of
Brazil or any political subdivision thereof;
(xiii) Payments of interest, principal and premium in respect of the
Notes or Exchange Notes are not subject under the laws of Brazil or any
political subdivision
thereof to any withholding or similar charges or deductions, except as set
forth in the Offering Memorandum;
(xiv) None of the Notes, the Exchange Notes nor any of the other
Transaction Documents nor any of the documents or instruments entered into
in connection therewith are subject to any registration tax, stamp duty or
similar tax or duty imposed by Brazil or any political subdivision
thereof;
(xv) The choice of law provisions set forth in paragraph 17 of this
Agreement, Section 11.9 of the Indenture and Paragraph 20 of the Notes
will be recognized by the courts of Brazil; each of the Company and the
Subsidiary Guarantors organized under the laws of Brazil can ▇▇▇ and be
sued in its own name; under the laws of Brazil, the submission of the
Company and the Subsidiary Guarantors organized under the laws of Brazil
to the non-exclusive jurisdiction of U.S. Federal and New York state
courts in the Borough of Manhattan in The City of New York is legal, valid
and binding; and any judgment obtained in such court arising out of or
relating to the obligations of the Company and such Subsidiary Guarantors
under the Transaction Documents or the transactions contemplated hereby or
thereby will be recognized in Brazil without reconsideration of the merits
upon confirmation of that judgment by the Brazilian Federal Supreme Court;
and such confirmation will be provided if the foreign judgment (a)
fulfills all formalities required for its enforceability under the laws of
the country where the foreign judgment is granted, (b) is issued by a
competent court after proper service of process, (c) is not subject to
appeal, as duly certified by the foreign judiciary branch, (d) is
authenticated by a Brazilian consular office in the country where the
foreign judgment is issued and is accompanied by a sworn translation into
Portuguese, (e) is not contrary to Brazilian national sovereignty, public
policy or morality and (f) is enforced in compliance with the applicable
procedure under the law of Brazil with respect to the enforcement of
foreign judgments (and, in the opinion of such counsel, none of the
provisions of any of the Transaction Documents is or would be against
Brazilian national sovereignty, public policy or morality);
(xvi) Each of the Transaction Documents is in proper form under
Brazilian law for the enforcement thereof against the Company and any
Subsidiary Guarantor organized under the laws of Brazil party thereto; and
it is not necessary to ensure the legality, validity, enforceability or
admissibility in evidence of any of the Transaction Documents in Brazil,
that any of them be filed or recorded or enrolled with any court or
authority in Brazil or that any stamp, registration or similar tax be paid
in Brazil, other than court costs, including filing fees and deposits to
guarantee judgment required by Brazilian law and regulations, except that
(a) the signatures of the parties to the Transaction Documents signing
outside Brazil shall have been notarized by a notary public licensed as
such under the law of the place of signing and the signature of such
notary public shall have been authenticated by the Brazilian consular
office and/or each of this Agreement, the Registration Rights Agreement
and the Indenture shall have been registered with the appropriate Registry
of Deeds and Documents in
Brazil and (b) each of the Transaction Documents shall have been
translated into Portuguese by a sworn translator;
(xvii) The Company, each Subsidiary Guarantor organized under the
laws of Brazil party thereto and their respective obligations under the
Transaction Documents, are subject to civil and commercial law and to suit
and neither they nor any of their properties or material assets have any
right of immunity, on any grounds, from any legal or other action, suit or
proceeding, from the giving of any relief in any such legal or other
action, suit or proceeding, from set-off or counterclaim, from the
jurisdiction of any court, from service of process, attachment upon or
prior to judgment, or attachment in aid of execution of judgment, or from
execution of a judgment, or from other legal process or proceeding for the
giving of any relief or for the enforcement of a judgment, in any such
court, with respect to their respective obligations, liabilities or any
other matter arising out of or relating to the Transaction Documents;
(xviii) Except as disclosed in the Offering Memorandum, the Company
and its Subsidiaries possess adequate licenses, certificates, authorities
or permits issued by appropriate governmental agencies or bodies necessary
to conduct the business now operated by them and have not received any
notice of proceedings relating to the revocation or modification of any
such license, certificate, authority or permit that, if determined
adversely to the Company or any of its Subsidiaries, would individually or
in the aggregate have a material adverse effect on the Company and its
Subsidiaries taken as a whole;
(xix) The statements under the captions "Enforceability of Civil
Liabilities", "Risk Factors--MMDS Transmission Issues", "Risk
Factors--Regulation", "Risk Factors--Transactions with Related Parties;
Rights to Put the Company's Stock", "Risk Factors--Ownership of Future
Cable Television Licenses", "Risk Factors--Dividends to Shareholders",
"Risk Factors--Rights to DIRECTV Programming", "Risk Factors--Limited
Assets of Tevecap and Dependence on Subsidiaries for Repayment of Notes,"
"Risk Factors--Fraudulent Conveyance Considerations", "Risk
Factors--Enforceability of Judgments", "Risk Factors--Controls and
Restrictions on US Dollar Remittances", "Business-Regulatory
Framework--MMDS Regulations--Cable Regulation--Cable Related Service
Regulation--Satellite Service Regulation", "Business--Legal Proceedings",
"Management", "Principal Shareholders", "Certain Transactions with Related
Parties", "Description of Certain Indebtedness", "Description of
Notes--Enforceability of Judgments with respect to the Notes and
Subsidiary Guarantees", "Description of Notes--Certain Bankruptcy Law
Considerations" and "Income Tax Considerations", to the extent that they
constitute matters of Brazilian law or legal conclusions, are complete and
accurate in all material respects;
Such counsel shall also state that they have participated in
conferences with representatives of the Company and with representatives of its
independent accountants at which conferences the contents of the Offering
Memorandum, any amendment thereof and
supplement thereto and related matters were discussed, and, although such
counsel has not independently verified and is not passing upon and assumes no
responsibility for the factual accuracy, completeness or fairness of the
statements contained in the Offering Memorandum, except for those referred to in
paragraphs (ix) and (xvii) above, such counsel has no reason to believe that the
Offering Memorandum (except for the financial statements and related schedules
or other financial or statistical data included in the Offering Memorandum, as
to which such counsel need express no opinion) or any amendment thereof or
supplement thereto contains any untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
EXHIBIT C-2
FORM OF OPINION OF ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ESQ.
(i) Each of the Company and each Subsidiary of the Company organized under the
laws of Brazil has been duly incorporated and is validly existing as a
corporation under the laws of Brazil, is duly qualified as a foreign corporation
to do business in every Brazilian jurisdiction, and has all power and authority
necessary to own or hold its properties and to conduct the businesses in which
it is engaged.
(ii) The Company has the authorized capitalization set forth under
the caption "Capitalization" in the Offering Memorandum, and all of the
issued shares of capital stock of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and conform to
the description thereof contained in the Offering Memorandum; all of the
issued shares of capital stock of each Subsidiary of the Company organized
under the laws of Brazil have been duly and validly authorized and issued
and are fully paid and non-assessable; the Company owns, directly or
indirectly, 87%, 98%, 99.9% and 100% of its Subsidiaries TVA Sul, TVA
Sistema, Commercial Cabo TV Sao Paulo Ltda., and Galaxy Brasil S.A. and
owns, directly or indirectly, 100% of each of its other Subsidiaries, in
each case, except as disclosed in the Offering Memorandum, free and clear
of any claim, lien, encumbrance, security interest, restriction upon
voting or transfer or any other claim of any third party; and the Company
owns 36% and 14% of its Operating Ventures Canbras TVA and TV Filme,
respectively; 50% and 33.3% of its Programming Ventures ESPN Brazil and
HBO Partners, respectively; 48.9% of Ype Radio e Televisao Ltda.; and 10%
of Galaxy Latin America, in each case, except as disclosed in the Offering
Memorandum or otherwise specified in such opinion, and to the knowledge of
such counsel, free and clear of any claim, lien, encumbrance, security
interest, restriction on voting or transfer or any other claim of any
third party.
(iii) Each of the Company and each Subsidiary of the Company
organized under the laws of Brazil party to one or more of the Transaction
Documents (as defined in the Purchase Agreement) has full right, power and
authority to execute and deliver each of the Transaction Documents to
which it is a party and to perform its obligations thereunder; and all
corporate action required to be taken by the Company and each such
Subsidiary for the due and proper authorization, execution and delivery of
each of the Transaction Documents and the consummation of the transactions
contemplated by each of the Transaction Documents has been duly and
validly taken;
(iv) The execution, delivery and performance of each of the
Transaction Documents, the issuance, authentication, sale and delivery of
the Notes, compliance with the terms thereof, and consummation by the
Company and each Subsidiary of the Company of the transactions
contemplated thereby, will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any of its
Subsidiaries pursuant to, any material indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which the
Company or any Subsidiary of the Company is a party or by which the
Company or any Subsidiary of the Company is bound or to which any of the
property or assets of the Company or any Subsidiary of the Company is
subject, nor will such actions result in any violation of the provisions
of the estatutos (or equivalent constitutive documents) of the Company or
any Subsidiary of the Company or any Brazilian statute or any order, rule
or regulation of any Brazilian court or governmental agency or body having
jurisdiction over the Company or any Subsidiary of the Company or any of
their properties or assets; and no consent, approval, authorization or
order of, or filing or registration with, any such Brazilian court or
governmental agency (including, without limitation, the Comissao de
Valores Mobiliaros) or body or stock exchange is required for the
execution, delivery and performance of the Transaction Documents by the
Company and each Subsidiary of the Company party to one or more of the
Transaction Documents, the issuance, authentication, sale and delivery of
the Notes and compliance with the terms thereof or the consummation of the
transactions contemplated thereby, except for (a) the certificate of prior
authorization of the Central Bank that has previously been obtained and is
in full force and effect, (b) the issuance by the Central Bank of the
Certificate of Registration permitting the Company to make remittances
from Brazil in U.S. dollars of the principal, interest and other amounts
in respect of the Notes (which such counsel has no reason to believe will
not be issued as a matter of formality promptly after the Company makes
proper application therefor), (c) the approval of the Central Bank for the
Company to make any payment in U.S. dollars not set forth in the
Certificate of Registration or to make any payment provided for therein
earlier than the due date therefor and (d) the ratification of the
Certificate of Registration for the Company to make any payment provided
therein later than 180 days after the due date thereof.
(v) Except as set forth in the Offering Memorandum, there are no
legal or governmental proceedings pending to which the Company or any
Subsidiary of the Company is a party or of which any property or assets of
the Company or any Subsidiary of the Company is subject which either (A)
questions the validity or enforceability of any Transaction Document or
any action taken or required to be taken pursuant thereto or in connection
therewith or (B) if determined adversely to the Company or any Subsidiary
of the Company, are reasonably likely to have a Material Adverse Effect;
and, to the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others.
(vi) Neither the Company nor any Subsidiary of the Company organized
under the laws of Brazil (i) is in violation of its estatutos (or
equivalent constitutive documents), (ii) is in default in any material
respect, and no event has occurred which, with notice or lapse of time or
both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any
material indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which it is a party or by
which it is bound or to which any of its properties or assets is subject
or (iii) to the best of such counsel's knowledge, is in violation in any
respect of any Brazilian law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may be subject.
(vii) Except as disclosed in the Offering Memorandum, the Company
and its Subsidiaries have good and marketable title to all material real
properties and all other material properties and assets owned by them, in
each case free from liens, encumbrances and defects that would materially
affect the value thereof or materially interfere with the use made or to
be made thereof by them; and, except as disclosed in the Offering
Memorandum, the Company and its Subsidiaries hold all material leased real
or personal property under valid and enforceable leases with no exceptions
that would materially interfere with the use made or to be made thereof by
them.
EXHIBIT C-3
FORM OF OPINION OF ▇▇▇▇▇▇, WESTWOOD & REIGELS
(i) TVA Communications Ltd. (the "Company") has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the British
Virgin Islands and has all power and authority necessary to own or hold its
properties and to conduct the businesses in which it is engaged;
(ii) The Company has full right, power and authority to execute and
deliver each of the Transaction Documents (as defined in the Purchase
Agreement) to which it is a party and to perform its obligations
thereunder; and all corporate action required to be taken by the Company
for the due and proper authorization, execution and delivery of each of
such Transaction Documents and the consummation of the transactions
contemplated by each of such Transaction Documents has been duly and
validly taken;
(iii) Each of this Agreement, the Registration Rights Agreement, the
Indenture and the Guarantee by the Company of the Notes has been duly
authorized, executed and delivered by the Company; and
(iv) The execution, delivery and performance of each of the
Transaction Documents to which the Company is a party, the issuance of the
Guarantee by the Company of the Notes, compliance with the terms thereof,
and consummation by the Company of the transactions contemplated thereby,
will not result in any violation of the provisions of the charter or
by-laws (or equivalent constitutive documents) of the Company or any
British Virgin Islands statute or any order, rule or regulation of any
British Virgin Islands court or governmental agency or body having
jurisdiction over the Company or any of its properties or assets; and no
consent, approval, authorization or order of, or filing or registration
with, any such British Virgin Islands court or governmental agency or body
or stock exchange is required for the execution, delivery and performance
of such Transaction Documents by the Company, the issuance of the
Guarantees and compliance with the terms thereof or the consummation of
the transactions contemplated thereby.