EXHIBIT 1.1
EXECUTION COPY
$300,000,000
FACILICOM INTERNATIONAL, INC.
10 1/2% Senior Notes due 2008
PURCHASE AGREEMENT
January 23, 1998
▇▇▇▇▇▇ Brothers Inc.,
As Representative of the Initial
Purchasers named in Schedule I,
Three World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
FaciliCom International, Inc., a Delaware corporation (the "Company"),
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proposes to sell to you (the "Representative") and the other purchaser named in
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Schedule I hereto (collectively, the "Initial Purchasers") $300,000,000
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aggregate principal amount of the Company's 10 1/2% Senior Notes due 2008 (the
"Notes"). The Notes will be issued pursuant to an Indenture to be dated as of
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January 28, 1998 (the "Indenture"), between the Company and State Street Bank
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and Trust Company, as trustee (the "Trustee"). This is to confirm the agreement
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concerning the purchase of the Notes from the Company by the Initial Purchasers.
Capitalized terms used but not defined in this Agreement shall have the meaning
given to such terms in the Indenture.
The Notes will be offered without being registered under the
Securities Act of 1933, as amended (the "Securities Act"), in reliance on
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exemptions therefrom.
The Initial Purchasers and their direct and indirect transferees will
be entitled to the benefits of a Registration Rights Agreement, to be dated the
Closing Date (the "Registration Rights Agreement") among the Company and the
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Initial Purchasers, to be substantially in the form attached hereto as Exhibit
E.
The holders of the Notes and their direct and indirect transferees
will be entitled to the benefits of a Collateral Pledge and Security Agreement,
to be dated the Closing Date (the "Pledge Agreement"), from the Company to the
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Trustee, whereby the
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Company will deposit with the Trustee an amount equal to the required payment of
the first six scheduled interest payments on the Notes.
In connection with the sale of the Notes, the Company has prepared a
preliminary offering memorandum (the "Preliminary Memorandum") and will prepare
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a final offering memorandum (the "Memorandum") setting forth or including a
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description of the terms of the Notes, the terms of the offering, a description
of the Company and any material developments relating to the Company occurring
after the date of the most recent financial statements included therein.
1. Representations, Warranties and Agreements of the Company. The
Company represents and warrants to, and agrees with the Initial Purchasers that,
as of the date hereof:
(a) The Memorandum at the date hereof, does not, and at the Closing
Date, will not, contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this Section
l(a) do not apply to statements or omissions in the Memorandum based upon
information furnished to the Company in writing by or on behalf of the
Initial Purchasers expressly for use therein.
(b) It is not required by applicable law or regulation in connection
with the offer, sale and delivery of the Notes to you in the manner
contemplated by this Agreement and the 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
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Indenture Act").
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(c) The Company, and each of the subsidiaries of the Company has been
duly organized and is validly existing and in good standing under the laws
of their respective jurisdictions of organization, is duly qualified to do
business and is in good standing in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, except where the failure
to be so qualified would not reasonably be expected to have a material
adverse effect on the business or property of the Company and the
subsidiaries of the Company taken as a whole, and each has all power and
authority necessary to own or hold its respective properties and to conduct
the business in which it is engaged.
(d) The Company has an authorized capitalization as set forth in the
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
Memorandum; all of the issued shares of
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capital stock, partnership interests or limited liability membership
interests, as the case may be, of each subsidiary of the Company (the
"Equity Interests") have been duly and validly authorized and issued and
(except for partnership interests of general partners and except to the
extent the limited liability company agreements governing the respective
limited liability companies provide otherwise) are fully paid and non-
assessable and the Equity Interests (except for directors' qualifying
shares) are owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims (except for those described in
the Memorandum).
(e) The Indenture has been duly authorized and, when duly executed and
delivered by the proper officers of the Company (assuming due execution and
delivery by the Trustee) and delivered by the Company, will constitute a
valid and legally binding agreement of the Company enforceable against the
Company in accordance with its terms, except (i) where the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or hereafter in
effect relating to rights of creditors and other obligees generally, (ii)
where the remedy of specific performance and other forms of equitable
relief may be subject to certain equitable defenses and principles and to
the discretion of the court before which the proceedings may be brought and
(iii) for the waiver of rights and defenses contained in Sections 111 and
514 of the Indenture.
(f) This Agreement has been duly authorized, executed and delivered by
the Company.
(g) The Registration Rights Agreement has been duly authorized by the
Company, and when duly executed and delivered by the Company, will
constitute a valid and legally binding agreement of the Company enforceable
against the Company in accordance with its terms, except (i) where the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now
or hereafter in effect relating to rights of creditors and other obligees
generally, (ii) where the remedy of specific performance and other forms of
equitable relief may be subject to certain equitable defenses and
principles and to the discretion of the court before which the proceedings
may be brought and (iii) where rights to indemnity and contribution
thereunder may be limited by applicable law and public policy.
(h) The Pledge Agreement has been duly authorized by the Company and,
when duly executed and delivered by the Company, will constitute a valid
and legally binding agreement of the Company enforceable against the
Company in accordance with its terms, except (i) where the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or hereafter in
effect relating to rights of creditors and other
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obligees generally, (ii) where the remedy of specific performance and other
forms of equitable relief may be subject to certain equitable defenses and
principles and to the discretion of the court before which the proceedings
may be brought and (iii) where rights to indemnity and contribution
thereunder may be limited by applicable law and public policy; and upon the
Closing Date, the pledge of Collateral (as defined in the Pledge Agreement)
securing the payment of the Obligations (as defined in the Pledge
Agreement) for the benefit of the Trustee and the holders of the Notes will
constitute a first priority perfected security interest in such Collateral,
enforceable against all creditors of the Company and any persons purporting
to purchase any of the Collateral from the Company.
(i) The Notes have been duly authorized and, when executed,
authenticated and delivered to and paid for by the Initial Purchasers in
accordance with the terms of this Agreement, will be (x) valid and binding
obligations of the Company enforceable in accordance with their terms,
except (i) where the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other
similar laws now or hereafter in effect relating to rights of creditors and
other obligees generally, (ii) where the remedy of specific performance and
other forms of equitable relief may be subject to certain equitable
defenses and principles and to the discretion of the court before which the
proceedings may be brought, and (iii) for the waiver of rights and defenses
contained in Sections 111 and 514 of the Indenture and (y) entitled to the
benefits of the Indenture and the Registration Rights Agreement.
(j) The execution, delivery and performance by the Company of this
Agreement, the Registration Rights Agreement, the Indenture, the Pledge
Agreement and the Notes, and the consummation by the Company of the
transactions contemplated herein (the "Transactions"), (i) will not
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conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Company or any of the subsidiaries of the Company is a party or by which
the Company or any of the subsidiaries of the Company is bound or to which
any of the properties or assets of the Company or any of the subsidiaries
of the Company is subject, (ii) will not result in any violation of the
provisions of the charter or by-laws or its limited liability company
agreement, as the case may be, of the Company or any of the subsidiaries of
the Company, (iii) will not result in any violation of any statute or
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company, any of the subsidiaries of the
Company or any of their properties or assets and (iv) except for such
consents, approvals, authorizations, registrations or qualifications as may
be required under applicable state securities laws in connection with the
purchase and distribution of the Notes by the Initial Purchasers, will not
require any consent, approval, authorization
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or order of, or filing or registration with, any court or governmental
agency or body; provided, however, that the Company shall not be in breach
of this representation where, with respect to clauses (i), (iii) and (iv)
of this paragraph, such conflicts, breaches, violations, defaults or
failures to obtain any consent, approval, authorization or order to make
such filing or registration would not have a material adverse effect on the
consolidated financial position, stockholders' equity, results of
operations, or the business of the Company and the subsidiaries of the
Company taken as a whole (a "Material Adverse Effect").
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(k) None of the Company or any of the subsidiaries of the Company has
sustained, since the date of the latest quarterly financial statements
included in the Memorandum, any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
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
Memorandum; and, since such date, there has not been any change in the
capital stock or long-term debt of the Company or any of the subsidiaries
of the Company, or any Material Adverse Effect, or any development
involving a prospective Material Adverse Effect, otherwise than as set
forth or contemplated in the Memorandum.
(l) The financial statements (including the related notes and
supporting schedules) included in the Memorandum 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
applied on a consistent basis throughout the periods involved (except that
the unaudited financial statements may exclude supporting schedules and are
subject to normal year-end adjustments).
(m) Deloitte & Touche LLP, who have certified certain financial
statements of the Company, whose report is included in the Memorandum and
who have delivered the initial letter referred to in Section 8(g) hereof,
are independent public accountants as required by the Securities Act and
the rules and regulations promulgated thereunder (the "Rules and
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Regulations") during the periods covered by the financial statements on
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which they reported contained in the Memorandum.
(n) The Company and each of the subsidiaries of the Company owns or
possesses adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service
▇▇▇▇ registrations, copyrights, license applications and licenses
("Intellectual Property") which are necessary for the conduct of their
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respective businesses and has no reason to believe that the conduct of
their respective businesses will conflict with, and have not received any
notice of any claim of conflict with, any Intellectual Property or related
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rights of others, except where (i) the failure to own or possess adequate
rights to use such Intellectual Property or (ii) such conflicts, if any,
would not have a Material Adverse Effect.
(o) The Company and each of the subsidiaries of the Company has good
and marketable title in fee simple to all real property and good and
marketable title to all personal property owned by it, in each case free
and clear of all liens, encumbrances and defects, except such as are
described in the Memorandum or such as do not materially affect the value
of such property and do not materially interfere with the use made and
proposed to be made of such property by the Company and each of the
subsidiaries of the Company, and all real property and buildings held under
lease by the Company and each of the subsidiaries of the Company are held
by it under valid, subsisting and enforceable leases, with such exceptions
as are not material and do not interfere with the use made and proposed to
be made of such property and buildings by the Company and each of the
subsidiaries of the Company.
(p) There are no legal or governmental proceedings pending to which
the Company or any of the subsidiaries of the Company is a party or of
which any property or asset of the Company or any of the subsidiaries of
the Company is the subject which, if determined adversely to the Company or
any of the subsidiaries of the Company, could reasonably be expected to
have a Material Adverse Effect; and to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others that are required to be disclosed in
the Memorandum which are not so disclosed.
(q) No relationship, direct or indirect, exists between or among the
Company, on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company, on the other hand, which is required
to be disclosed in the Memorandum which is not so disclosed.
(r) Since the date as of which information is given in the Memorandum
through the date hereof, and except as may otherwise be disclosed in the
Memorandum, the Company has not (i) issued or granted any securities, other
than in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of any one or more employees,
officers, directors or consultants, or in connection with a dividend
reinvestment or stock purchase plan, (ii) incurred any liability or
obligation, direct or contingent, other than liabilities and obligations
which were incurred in the ordinary course of business, (iii) entered into
any transaction not in the ordinary course of business or (iv) declared or
paid any dividend on capital stock.
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(s) Except as described in the Memorandum, the Company has not sold or
issued any shares of common stock during the six-month period preceding the
date of the Memorandum, including any sales pursuant to Rule 144A under, or
Regulation D or S of, the Securities Act.
(t) None of the Company or any of the subsidiaries of the Company (i)
is in violation of its charter or by-laws or its limited liability company
agreement, as the case may be, (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 time period, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement or other 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, including, without limitation, operating
agreements, except where it would not reasonably be expected to have a
Material Adverse Effect, or (iii) is in violation in any material respect
of any law, ordinance, governmental rule, regulation or court decree to
which it or its properties or assets may be subject or has failed to obtain
any material license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its properties or
assets or to the conduct of its business, except where it would not
reasonably be expected to have a Material Adverse Effect.
(u) None of the Company or any of the subsidiaries of the Company, or,
to the best knowledge of the Company, any director, officer, agent,
employee or other person associated with or acting on behalf of the Company
or any of the subsidiaries of the Company, has used any corporate funds for
any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; made any direct or indirect unlawful
payment to any foreign or domestic government official or employee from
corporate funds; violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977; or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(v) None of the Company or any subsidiary of the Company is an
"investment company" within the meaning of such term under the Investment
Company Act of 1940, as amended, and the rules and regulations of the
Securities and Exchange Commission (the "Commission") thereunder (the
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"Investment Company Act").
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(w) None of the Company or any of the affiliates of the Company (each,
as defined in Rule 501(b) of Regulation D under the Securities Act, an
"Affiliate") has directly, or through any agent (other than the Initial
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Purchasers in connection with this Agreement), (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
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will be integrated with the sale of the Notes in a manner that would
require the registration under the Securities Act of the Notes or (ii)
engaged or will engage in any form of general solicitation or general
advertising in connection with the offering of the Notes (as those terms
are used in Regulation D under the Securities Act), or in any manner
involving a public offering within the meaning of Section 4(2) of the
Securities Act.
(x) None of the Company, the Affiliates or any person acting on its or
their behalf (other than the Initial Purchasers in connection with this
Agreement) has engaged or will engage in any directed selling efforts (as
that term is defined in Regulation S under the Securities Act ("Regulation
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S")) with respect to the Notes and each of the Company and its Affiliates
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and any person acting on its or their behalf (other than the Initial
Purchasers in connection with this Agreement) has complied and will comply
with the offering restrictions requirement of Regulation S.
2. Purchase of the Notes by the Initial Purchasers. (a) On the
basis of the representations and warranties herein contained, and subject to the
terms and conditions hereinafter set forth, the Company agrees to sell to the
Initial Purchasers and the Initial Purchasers agree, severally and not jointly,
to purchase from the Company, the respective principal amount of the Notes set
forth in Schedule I hereto opposite their names at a purchase price of 10 1/2%
of the principal amount of such Notes.
(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 hereinafter
provided.
3. Sale and Resale of the Notes by the Initial Purchasers. (a) You
have advised the Company that you propose to offer the Notes for resale upon the
terms and conditions set forth in this Agreement and in the Memorandum. You
hereby represent and warrant to, and agree with, the Company that you (i) are
purchasing the Notes pursuant to a private sale exempt from registration under
the Securities Act, (ii) will not solicit offers for, or offer or sell, the
Notes by means of any form of general solicitation or general advertising or in
any manner involving a public offering within the meaning of Section 4(2) of the
Securities Act and (iii) will solicit offers for the Notes only from, and will
offer, sell or deliver the Notes, as part of their initial offering, only to (A)
in the case of offers inside the United States, persons whom you reasonably
believe to be qualified institutional buyers ("Qualified Institutional Buyers")
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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
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institutional accounts for which such person is acting as fiduciary or agent,
only when such person has represented to you 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, in each case, in transactions
under Rule 144A, and (B) in the case of offers
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outside the United States, to persons other than U.S. persons (as defined in
Regulation S) in accordance with Rule 903 of Regulation S.
(b) In connection with the transactions described in subsection
(a)(iii)(B) of this Section 3, you have offered and sold the Notes, and will
offer and sell the Notes, (i) as part of your distribution at any time and (ii)
otherwise until 40 days after the later of the commencement of the offering and
the Closing Date (the "Restricted Period"), only in accordance with Rule 903 of
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Regulation S. Accordingly, the Initial Purchasers represent and agree that,
with respect to the transactions described in subsection (a)(iii)(B) of this
Section 3, neither they, nor any of their Affiliates, nor any person acting on
their behalf has engaged or will engage in any directed selling efforts with
respect to the Notes, and that they have complied and will comply with the
offering restrictions of Regulation S. They agree that, at or prior to the
confirmation of sale of the Notes pursuant to subsection (a)(iii)(B) of this
Section 3, they shall have sent to each distributor, dealer or person receiving
a selling concession, fee or other remuneration that purchases Notes from the
Initial Purchasers during the Restricted Period, a confirmation or notice to
substantially the following effect:
The Notes covered hereby have not been registered under the U.S. Securities
Act of 1933 (the "Securities Act") and may not be offered or sold within
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the United States or to, or for the account or benefit of U.S. Persons (i)
as part of their distribution at any time or (ii) otherwise until 40 days
after the later of the commencement of the offering and the time of
delivery of the Notes, except in either case in accordance with Regulation
S or Rule 144A under the Securities Act. The terms used above have the
meaning given to them by Regulation S.
(c) (i) You have not offered or sold and will not offer or sell any
Notes to persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers or Securities Regulations 1995 (the "Regulations"); (ii) you have
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complied and will comply with all applicable provisions of the Financial
Services ▇▇▇ ▇▇▇▇ with respect to anything done by you in relation to the Notes
in, from or otherwise involving the United Kingdom; and (iii) you have only
issued or passed on and will only issue or pass on in the United Kingdom any
document received by you in connection with the issuance of the Notes to a
person who is of a kind described in Section 11(3) of the Financial Services ▇▇▇
▇▇▇▇ (Investment Advertisements) (Exemptions) Order 1996 or is a person to whom
such document may otherwise lawfully be issued or passed on.
4. Delivery of and Payment for the Notes. (a) Payment of the
purchase price for, and delivery of, the Notes shall be made at the offices of
Shearman & Sterling,
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New York, New York or at such other place as shall be agreed upon by the Company
and you, at 9:30 a.m. (New York time), on January 28, 1998 or at such other time
or date as you and the Company shall determine (such date and time of payment
and delivery being herein called the "Closing Date").
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(b) On the Closing Date, payment for the Notes shall be made in
immediately available funds by wire transfer to such account as the Company
shall specify prior to the Closing Date or by such means as the parties hereto
shall agree prior to the Closing Date against delivery to you of the
certificates evidencing the Notes. Upon delivery, the Notes shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not less than two full business days prior to the
Closing Date. The certificates evidencing the Notes shall be delivered to you
on the Closing Date for the respective accounts of the Initial Purchasers, with
any transfer taxes payable in connection with the transfer of the Notes to the
Initial Purchasers duly paid, against payment of the purchase price therefor.
For the purpose of expediting the checking and packaging of certificates
evidencing the Notes, the Company agrees to make such certificates available for
inspection not later than 2:00 P.M. on the business day prior to the Closing
Date.
5. Further Agreements of the Company. The Company further agrees:
(a) To furnish to you, without charge, during the period referred to
in paragraph (c) below, as many copies of the Memorandum and any
supplements and amendments thereto as you may reasonably request.
(b) Prior to making any amendment or supplement to the 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 of review, which shall not
in any case be longer than five business days after receipt of such copy.
(c) If, at any time prior to completion of the distribution of the
Notes by you to purchasers, any event shall occur or condition exist as a
result of which it is necessary, in the opinion of counsel for you or
counsel for the Company, to amend or supplement the Memorandum in order
that the 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 Memorandum to comply with applicable law, to promptly
prepare such amendment or supplement as may be necessary to correct such
untrue statement or omission or so that the Memorandum, as so amended or
supplemented, will comply
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with applicable law and to furnish you such number of copies as you may
reasonably request.
(d) So long as the Notes are outstanding and are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act
during any period in which it is not subject to and in compliance with
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), to furnish to holders of the Notes and prospective
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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.
(e) For a period of five years following the date of the Memorandum to
furnish to the Initial Purchasers copies of all public reports and all
reports and financial statements furnished by the Company to the principal
national securities exchange upon which the Notes may be listed pursuant to
requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder.
(f) Promptly from time to time to take such action as the Initial
Purchasers may reasonably request to qualify the Notes for offering and
sale under the securities laws of such jurisdictions as the Initial
Purchasers may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long
as may be necessary to complete the distribution of the Notes; provided,
however, that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action which would subject it to service of process in suits, other
than those arising out of the offering or sale of the Notes, in any
jurisdiction where it is not now so subject. In each jurisdiction in which
the Notes have been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction to continue
such qualification in effect for a period of not less than one year from
the effective date of the Registration Statement. The Company will also
supply the Initial Purchasers with such information as is necessary for the
determination of the legality of the Notes for investment under the laws of
such jurisdictions as the Initial Purchasers may reasonably request.
(g) Not to offer, sell, contract to sell or otherwise dispose of any
additional securities of the Company substantially similar to the Notes
(but not including the Exchange Notes (as defined in the Registration
Rights Agreement)) or any securities convertible into or exchangeable for
or that represent the right to receive any such similar securities, other
than either the Notes to be sold hereunder or securities issued upon
conversion, exchange or exercise of securities outstanding on the date of
this Agreement, without the consent (which consent shall not be
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unreasonably withheld) of the Initial Purchasers during the period
beginning from the date of this Agreement and continuing for 180 days
following the Closing Date.
(h) To use its best efforts to permit the Notes to be designated
Private Offerings, Resales and Trading through Automated Linkages Market
("PORTAL") securities in accordance with the rules and regulations adopted
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by the National Association of Securities Dealers, Inc. relating to trading
in the PORTAL Market and to permit the Notes to be eligible for clearance
and settlement through The Depository Trust Company ("DTC").
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(i) Except following the effectiveness of the Registration Statement
(as defined in the Registration Rights Agreement), not to, and will cause
its respective Affiliates not 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 in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act.
(j) Not to, and will cause its respective Affiliates 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) in a transaction that
could be integrated with the sale of the Notes in a manner that would
require the registration under the Securities Act of the Notes.
(k) To use reasonable best efforts to ensure that none of the Company
or any subsidiary of the Company shall become an "investment company"
within the meaning of such term under the Investment Company Act.
(l) None of the Company, the Affiliates of the Company or any person
acting on its or their behalf (other than the Initial Purchasers in
connection with this Agreement) will engage in any directed selling efforts
(as that term is defined in Regulation S) with respect to the Notes, and
each of the Company and the Affiliates of the Company and each person
acting on its or their behalf (other than the Initial Purchasers in
connection with this Agreement) will comply with the offering restrictions
of Regulation S.
6. Offering of Securities; Restrictions on Transfer. (a) Each
Initial Purchaser, severally and not jointly, represents and warrants that such
Initial Purchaser is a Qualified Institutional Buyer. Each Initial Purchaser,
severally and not jointly, agrees with the Company that (i) it will not solicit
offers for, or offer to sell, such Notes by any form of general solicitation or
general advertising (as those terms are used in Regulation D under the
Securities Act) or in any manner involving a public offering within the meaning
of Section 4(2) of the Securities Act and (ii) it will solicit offers for such
Notes only from, and will offer such Notes only to, persons that it reasonably
believes to be (A) in the case of offers
13
inside the United States, Qualified Institutional Buyers and (B) in the case of
offers outside the United States, persons other than U.S. persons ("foreign
-------
purchasers," which term shall include dealers or other professional fiduciaries
----------
in the United States acting on a discretionary basis for foreign beneficial
owners (other than an estate or trust)) that, in each case, in purchasing such
Notes are deemed to have represented and agreed as provided in the Memorandum in
the section entitled "Notice to Investors."
(b) Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees with respect to offers and sales outside the United States
that:
(i) it understands that no action has been or will be taken in any
jurisdiction by the Company that would permit a public offering of the
Notes, or possession or distribution of either the Preliminary Memorandum
or the Memorandum or any other offering or publicity material relating to
the Notes, in any country or jurisdiction where action for that purpose is
required;
(ii) such Initial Purchaser will comply with all applicable laws and
regulations in each jurisdiction in which it acquires, offers, sells or
delivers Notes or has in its possession or distributes either the
Preliminary Memorandum or the Memorandum or any such other material, in all
cases at its own expense;
(iii) the Notes have not been and will not be registered under the
Securities Act and may not be offered or sold within the United States or
to, or for the account or benefit of, U.S. persons except in accordance
with Regulation S under the Securities Act or pursuant to an exemption from
the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Notes and will offer and
sell the Notes (A) as part of their distribution at any time and (B)
otherwise until 40 days after the later of the commencement of the offering
of the Notes and the Closing Date, only in accordance with Rule 903 of
Regulation S or another exemption from the registration requirements of the
Securities Act. Accordingly, neither such Initial Purchaser, its
Affiliates nor any persons acting on its or their behalf has engaged or
will engage in any directed selling efforts (within the meaning of
Regulation S) with respect to the Notes, and any such Initial Purchaser,
its Affiliates and any such persons has complied and will comply with the
requirements of Regulation S; and
(v) such Initial Purchaser has (A) not offered or sold and will not
offer or sell any Notes to persons in the United Kingdom except to persons
whose ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in
14
the United Kingdom within the meaning of the Regulations; (B) complied and
will comply with all applicable provisions of the Financial Services ▇▇▇
▇▇▇▇ with respect to anything done by it in relation to the Notes in, from
or otherwise involving the United Kingdom; and (C) only issued or passed on
and will only issue or pass on in the United Kingdom any document received
by it in connection with the issuance of the Notes to a person who is of a
kind described in Section 11(3) of the Financial Services ▇▇▇ ▇▇▇▇
(Investment Advertisements) (Exemptions) Order 1996 or is a person to whom
such document may otherwise lawfully be issued or passed on.
Terms used in this Section 6 have the meanings given to them by Regulation S.
7. Expenses. The Company agrees to pay all expenses incident to the
performance of its obligations under this Agreement, including: (i) the costs
incident to the authorization, issuance, sale and delivery of the Notes and any
taxes payable in that connection; (ii) the costs incident to the preparation of
the Memorandum and any amendments or supplements thereto; (iii) the fees and
disbursements of the Company's counsel and accountants and the Trustee and its
counsel; (iv) the qualification of such Notes under securities or Blue Sky laws,
including filing fees and the reasonable fees and disbursements of counsel for
the Initial Purchasers in connection therewith and in connection with the
preparation of any Blue Sky or legal investment memoranda; (v) the printing and
delivery to the Initial Purchasers in quantities as hereinabove stated of copies
of the Memorandum and any amendments or supplements thereto; (vi) the fees and
expenses, if any, incurred in connection with the admission of such Notes for
trading in PORTAL or any other appropriate market system; (vii) the costs and
expenses of the Company relating to investor presentations on any "road show"
undertaken in connection with the marketing of the Notes, including, without
limitation, fees and expenses of any consultants (other than the Initial
Purchasers) engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expense of the representatives
and officers of the Company and any such consultants (other than the Initial
Purchasers) and its proportionate share of the cost of any aircraft chartered in
connection with the road show; and (viii) all other costs and expenses incident
to the performance of the obligations of the Company hereunder for which
provision is not otherwise made in this Section 7; provided, however, that,
except as provided in this Section 7 and Section 12, the Initial Purchasers
shall pay their own costs and expenses, including without limitation the costs
and expenses of their counsel, any travel and lodging expenses (including their
proportionate share of the cost of any aircraft chartered in connection with the
road show), and any costs incident to the performance of their obligations
hereunder for which provision is not otherwise made, and any transfer taxes on
the Notes which they may sell.
8. Conditions to the Initial Purchasers' Obligations. The
obligations of the Initial Purchasers hereunder are subject to the accuracy,
when made and on the Closing Date, of the representations and warranties of the
Company contained herein, to the
15
performance by the Company of its respective obligations hereunder, and to each
of the following additional terms and conditions:
(a) The Initial Purchasers shall not have discovered and disclosed to
the Company on or prior to the Closing Date that the Memorandum or any
amendment or supplement thereto contains any untrue statement of a fact
which, in the opinion of Shearman & Sterling, counsel for the Initial
Purchasers, is material or omits to state any fact which, in the opinion of
such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(b) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Registration Rights
Agreement, the Pledge Agreement, the Indenture, the Notes, the Memorandum
and all other legal matters relating to this Agreement and the transactions
contemplated hereby shall be satisfactory in all respects to counsel for
the Initial Purchasers, and the Company shall have furnished to such
counsel all documents and information that they may reasonably request to
enable them to pass upon such matters.
(c) ▇▇▇▇▇▇▇ & Berlin, Chartered shall have furnished to the Initial
Purchasers its written opinion, as counsel to the Company, addressed to the
Initial Purchasers and dated the Closing Date, in form and substance
reasonably satisfactory to the Initial Purchasers, to the effect set forth
in Exhibit A hereto and to such further effect as counsel to the Initial
Purchasers may reasonably request.
(d) ▇▇▇▇▇▇▇ & Berlin, Chartered shall have furnished to the Initial
Purchasers its written opinion, as special U.S. telecommunications counsel
to the Company, addressed to the Initial Purchasers and dated the Closing
Date, to the effect set forth in Exhibit B hereto and to such further
effect as counsel to the Initial Purchasers may reasonably request.
(e) ▇▇ ▇▇▇▇▇▇▇ shall have furnished to the Initial Purchasers its
written opinion, as British regulatory counsel to the Company, addressed to
the Initial Purchasers and dated the Closing Date, to the effect set forth
in Exhibit C hereto and to such further effect as counsel to the Initial
Purchasers may reasonably request.
(f) Styrbjorn Garde Advokatbyra shall have furnished to the Initial
Purchasers its written opinion, as Swedish regulatory counsel to the
Company, addressed to the Initial Purchasers and dated the Closing Date, to
the effect set forth in Exhibit D hereto and to such further effect as
counsel to the Initial Purchasers may reasonably request.
16
(g) You shall have received on the date hereof and the Closing Date a
letter, dated the date hereof and the Closing Date, as the case may be, in
form and substance reasonably satisfactory to you, from Deloitte & Touche
LLP, independent public accountants, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information, including the financial information contained or incorporated
by reference in the Memorandum as identified by you.
(h) The Company shall have furnished to the Initial Purchasers a
certificate, dated the Closing Date, of the President or a Vice President
of the Company and the Treasurer or Chief Financial Officer stating that:
(i) The representations, warranties and agreements of the Company
in Section 1 are true and correct as of the Closing Date and the
Company has complied with all its agreements contained herein;
(ii) (A) None of the Company or any of the subsidiaries of the
Company has sustained, since the date of the latest quarterly
financial statements included in the Memorandum, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not 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 Memorandum or (B) since such
date there has not been any change in the capital stock or long-term
debt of the Company or any of the subsidiaries of the Company or any
Material Adverse Effect, or any development involving a prospective
Material Adverse Effect, otherwise than as set forth or contemplated
in the Memorandum; and
(iii) They have carefully examined the Memorandum and, in their
opinion (A) the Memorandum, as of its date, did not include any untrue
statement of a material fact and did not omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (B)
since the date of the Memorandum, no event has occurred which was
required under the Securities Act to have been set forth in a
supplement or amendment to the Memorandum.
(i) (i) None of the Company or any of the subsidiaries of the Company
shall have sustained, since the date of the latest audited financial
statements included in the Memorandum, any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
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
Memorandum or (ii) since such date there shall not have been
17
any change in the capital stock or long-term debt of the Company or any of
the subsidiaries of the Company or any change, or any development involving
a prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and the subsidiaries of the Company taken as a whole, otherwise
than as set forth or contemplated in the Memorandum, the effect of which,
in any such case described in clause (i) or (ii), is, in the judgment of
the Initial Purchasers, so material and adverse as to make it impracticable
or inadvisable to proceed with the offering or the delivery of the Notes on
the terms and in the manner contemplated in the Memorandum.
(j) The Initial Purchasers shall have received on the Closing Date the
Registration Rights Agreement executed by the Company.
(k) Each of the Company and the Trustee shall have executed and
delivered the Pledge Agreement on or prior to the Closing Date.
(l) The Initial Purchasers shall have received from Shearman &
Sterling, counsel to 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 may reasonably request
for the purpose of enabling them to pass upon such matters.
All opinions, letters, evidence 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.
9. Indemnification and Contribution. (a) The Company shall
indemnify and hold harmless each Initial Purchaser, its officers and directors
and each person, if any, who controls any Initial Purchaser within the meaning
of Section 15 of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including, but
not limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Notes), to which such Initial Purchaser, officer,
director or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in (A) the Preliminary Memorandum, the Memorandum or in
any amendment or supplement thereto or (B) any blue sky application or other
document prepared or executed by the Company (or based upon any written
information furnished by the Company) specifically for the purpose of qualifying
any or all of the Notes under the securities laws of any state or other
jurisdiction (any such application, document or information being hereinafter
called a "Blue Sky Application"), (ii) the omission or alleged omission to state
--------------------
in the Preliminary Memorandum, the
18
Memorandum or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or necessary to make
the statements therein not misleading or (iii) any act or failure to act, or any
alleged act or failure to act, by any Initial Purchaser in connection with, or
relating in any manner to, the Notes or the offering contemplated hereby, and
which is included as part of or referred to in any loss, claim, damage,
liability or action arising out of or based upon matters covered by clause (i)
or (ii) above (provided that the Company shall not be liable in the case of any
matter covered by this clause (iii) to the extent that it is determined in a
final judgment by a court of competent jurisdiction that such loss, claim,
damage, liability or action resulted directly from any such act or failure to
act undertaken or omitted to be taken by such Initial Purchaser through its
gross negligence or wilful misconduct), and shall reimburse each Initial
Purchaser and each such officer, director or controlling person promptly upon
demand for any legal or other expenses reasonably incurred by that Initial
Purchaser, officer, director or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred upon written
submission to the Company of documentation evidencing such incurrence; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in the Preliminary Memorandum, the Memorandum or in any
such amendment or supplement, or in any Blue Sky Application in reliance upon
and in conformity with the written information concerning such Initial Purchaser
furnished to the Company by or on behalf of any Initial Purchaser specifically
for inclusion therein; provided further that as to the Preliminary Memorandum,
this indemnity agreement shall not inure to the benefit of any Initial Purchaser
or any officer, director or controlling person of that Initial Purchaser on
account of any loss, claim, damage, liability or action arising from the sale of
Notes to any person by such Initial Purchaser if (i) such Initial Purchaser
failed to send or give a copy of the Memorandum, as the same may be amended or
supplemented, to that person within the time required by the Securities Act and
(ii) the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact in the Preliminary
Memorandum was corrected in the Memorandum or a supplement or amendment thereto,
as the case may be, unless in each case, such failure resulted from
noncompliance by the Company with Section 5(c). The foregoing indemnity
agreement is in addition to any liability which the Company may otherwise have
to any Initial Purchaser or to any officer, director or controlling person of
that Initial Purchaser.
(b) Each Initial Purchaser, severally and not jointly, shall indemnify
and hold harmless the Company, its directors and officers, and each person, if
any, who controls the Company within the meaning of Section 15 of the Securities
Act, from and against any loss, claim, damage or liability, joint or several, or
any action in respect thereof, to which the Company or any such director,
officer or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises
19
out of, or is based upon, (i) any untrue statement or alleged untrue statement
of a material fact contained in (A) the Preliminary Memorandum, the Memorandum
or in any amendment or supplement thereto or (B) any Blue Sky Application or
(ii) the omission or alleged omission to state in the Preliminary Memorandum,
the Memorandum or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or necessary to make
the statements therein not misleading, but in the case of clauses (i) and (ii)
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
the written information concerning such Initial Purchaser furnished to the
Company or the Trustee by or on behalf of that Initial Purchaser specifically
for inclusion therein, and shall reimburse the Company and any such director,
officer or controlling person for any legal or other expenses reasonably
incurred by the Company or any such director, officer or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred.
The foregoing indemnity agreement is in addition to any liability which any
Initial Purchaser may otherwise have to the Company or any such director,
officer or controlling person.
(c) Promptly after receipt by an indemnified party under this Section
9 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 9, 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 9 except to the extent the
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 9. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, 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 9 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 the indemnified party shall have
the right to employ separate counsel to represent jointly the indemnified party
and its respective directors, officers and controlling persons who may be
subject to liability arising out of any claim in respect of which indemnity may
be sought by the indemnified party against the indemnifying party under this
Section 9 if such indemnified party shall have been advised in writing that the
representation of such indemnified party and those directors, officers, and
controlling persons by the same counsel would be inappropriate under applicable
standards of professional conduct due to actual or potential differing interests
between them, and in that event the fees and expenses
20
of such separate counsel shall be paid by the indemnifying party. It is
understood that the indemnifying party shall not be liable for the fees and
expenses of more than one separate firm (in addition to local counsel in each
jurisdiction) for all indemnified parties in connection with any proceeding or
related proceedings. Each indemnified party, as a condition of the indemnity
agreements contained in Sections 9(a) and 9(b), shall use its best efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) 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 of liability by reason of such settlement or judgment in accordance with
this Section 9.
(d) If the indemnification provided for in this Section 9 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 9(a) or 9(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, 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, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Initial Purchasers, on the
other hand, from the offering of 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, on the one hand, and the
Initial Purchasers, on the other hand, 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, on the one hand, and the Initial
Purchasers, on the other hand, 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, on the one hand, and the total underwriting commissions and discounts
received by the Initial Purchasers with respect to the Notes purchased under
this Agreement, on the other hand, bear to the total gross proceeds from the
offering of the Notes under this Agreement, in each case as set forth in the
table on the cover page of the 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
21
information supplied by the Company, on the one hand, or the Initial Purchasers,
on the other hand, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement or
omission. Each of the Company and the Initial Purchasers agrees that it would
not be just and equitable if contribution pursuant to this Section 9(d) were to
be determined by pro rata allocation (even if either the Initial Purchasers or
the Company, as the case may be, were treated as one entity for such purpose) 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 9(d) shall be deemed to include,
subject to limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section 9(d),
no Initial Purchaser shall be required to indemnify or contribute any amount in
excess of the amount by which the proceeds received by the Initial Purchasers
from an offering of the Notes 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 or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for in
this Section 9 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in equity.
The Initial Purchasers' obligations to contribute as provided in this Section
9(d) are several in proportion to their respective underwriting obligations and
not joint.
(e) Each of the Initial Purchasers confirms and the Company
acknowledges that (i) the last paragraph on the cover page, (ii) the
stabilization legend on page (iv) and (iii) the fifth paragraph, the sixth
paragraph and the first two sentences of the eleventh paragraph under the
caption "Plan of Distribution" constitute the only information concerning the
Initial Purchasers furnished in writing to the Company by or on behalf of the
Initial Purchasers specifically for inclusion in the Memorandum.
10. Default by Any Initial Purchaser. If, on the Closing Date, any
Initial Purchaser or Initial Purchasers shall fail or refuse to purchase Notes
which it or they have agreed to purchase hereunder on such date and the
aggregate principal amount of Notes with respect to which such default occurs is
more than one-tenth of the aggregate principal amount of Notes to be purchased
on such date and arrangements satisfactory to the Initial Purchasers and the
Company for the purchase of such Notes are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Initial Purchaser or of the Company. In any such case, either
you, on the one hand, or the Company, on the other hand, shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Memorandum or in any other documents
or arrangements may be effected. Any action taken
22
under this paragraph shall not relieve any defaulting Initial Purchaser from
liability in respect of any default of such Initial Purchaser under this
Agreement.
11. Termination. The obligations of the Initial Purchasers hereunder
may be terminated by them by notice given to and received by the Company prior
to delivery of and payment for the Notes if, prior to that time, (i) trading in
securities generally on the New York Stock Exchange or the American Stock
Exchange or in the over-the-counter market shall have been suspended or minimum
prices shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall have been
declared by federal or New York State authorities, (iii) the United States shall
have become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
occurred such 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 shall be such) as to make it, in the judgment of
the Initial Purchasers, impracticable or inadvisable to proceed with the
offering or delivery of the Notes on the terms and in the manner contemplated in
the Memorandum.
12. Reimbursement of Initial Purchaser's Expenses. If the sale of
Notes provided for herein is not consummated because any condition to the
obligations of the Initial Purchasers set forth in Section 8 hereof is not
satisfied, because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof
other than by reason of a default by the Initial Purchasers, the Company shall
reimburse the Initial Purchasers for the reasonable fees and expenses of its
counsel and for such other out-of-pocket expenses as shall have been incurred by
them in connection with this Agreement and the proposed purchase of the Notes,
and upon demand the Company shall pay the full amount thereof to the Initial
Purchasers. If this Agreement is terminated pursuant to Section 10 by reason of
the default of any of the Initial Purchasers, the Company shall not be obligated
to reimburse any Initial Purchaser on account of those expenses.
13. Notices, Etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Initial Purchasers, shall be delivered or sent by mail
or facsimile transmission to:
▇▇▇▇▇▇ Brothers Inc.
Three World Financial Center
New York, New York 10285
Attention: Syndicate Department
(Fax: ▇▇▇-▇▇▇-▇▇▇▇); and
23
BT Alex. ▇▇▇▇▇ Incorporated
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Syndicate Department
(Fax: ▇▇▇-▇▇▇-▇▇▇▇); and
(b) if to the Company, shall be delivered or sent by mail or facsimile
transmission to the address of the Company set forth in the Memorandum,
Attention: Chief Financial Officer (Fax: ▇▇▇-▇▇▇-▇▇▇▇).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
14. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchasers, the Company,
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (x) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the officers and
directors of the Initial Purchasers and the person or persons, if any, who
control the Initial Purchasers within the meaning of Section 15 of the
Securities Act and (y) the representations, warranties, indemnities and
agreements of the Initial Purchasers contained in this Agreement shall be deemed
to be for the benefit of directors and officers of the Company and any person
controlling the Company within the meaning of Section 15 of the Securities Act.
Nothing in this Agreement is intended or shall be construed to give any person,
other than the persons referred to in this Section 14, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
15. Survival. The respective indemnities, representations,
warranties and agreements of the Company, on the one hand, and the Initial
Purchasers, on the other hand, contained in this Agreement or made by or on
behalf of them, respectively, 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 investigation made by or on behalf of any of them or any
person controlling any of them.
16. Definition of the Term "Business Day." For purposes of this
Agreement, "business day" means any day on which the New York Stock Exchange,
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Inc. is open for trading.
17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
24
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. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
25
If the foregoing correctly sets forth the agreement between the
Company and the Initial Purchasers, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
FACILICOM INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: CFO
Accepted, January 23, 1998
▇▇▇▇▇▇ BROTHERS INC.
Acting severally on behalf of itself
and the other Initial Purchaser
named in Schedule I hereto.
By: ▇▇▇▇▇▇ Brothers Inc.
By:
----------------------------------
Name:
Title:
If the foregoing correctly sets forth the agreement between the
Company and the Initial Purchasers, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
FACILICOM INTERNATIONAL, INC.
By:
---------------------------------
Name:
Title:
Accepted, January 23, 1998
▇▇▇▇▇▇ BROTHERS INC.
Acting severally on behalf of itself
and the other Initial Purchaser
named in Schedule I hereto.
By: ▇▇▇▇▇▇ Brothers Inc.
By: /s/ ▇▇▇▇ Zuidic
------------------------------------
Name: ▇▇▇▇ Zuidic
Title: Managing Director
SCHEDULE I
Principal Amount
of Notes
Initial Purchaser To Be Purchased
----------------- ----------------
▇▇▇▇▇▇ Brothers Inc............................. $195,000,000
BT Alex. ▇▇▇▇▇ Incorporated..................... 105,000,000
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Total.................................... $300,000,000
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