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EXHIBIT 4.2
EXECUTION COPY
TELECOMUNICACIONES DE PUERTO RICO, INC.
$1,000,000,000
$300,000,000 6.15% Senior Notes Due 2002
$400,000,000 6.65% Senior Notes Due 2006
$300,000,000 6.80% Senior Notes Due 2009
Purchase Agreement
New York, New York
May 13, 1999
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxx Securities Inc.
X.X. Xxxxxx Securities Inc.
NationsBanc Xxxxxxxxxx Securities LLC
Popular Securities, Inc.
As Representatives of the Initial Purchasers
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Telecomunicaciones de Puerto Rico, Inc., a corporation organized
under the laws of Puerto Rico (the "Company"), proposes upon the terms and
conditions set forth herein to issue and sell to the several parties named in
Schedule I hereto (the "Initial Purchasers"), for whom you (the
"Representatives") are acting as representatives, $300,000,000 principal amount
of its 6.15% Senior Notes Due 2002, $400,000,000 principal amount of its 6.65%
Senior Notes Due 2006 and $300,000,00 principal amount of its 6.80% Senior
Notes Due 2009 (collectively, the "Securities") each guaranteed by the Puerto
Rico Telephone Company, Inc., a Puerto Rico corporation and wholly owned
subsidiary of the Company and Celulares Telefonica, Inc., a Puerto Rico
corporation and wholly owned subsidiary of the Company (together, the
"Subsidiary Guarantors"). The Securities are to be issued under an indenture
(the "Indenture"), dated as of May 20, 1999, among the Company, the subsidiary
guarantors party thereto (the "Subsidiary Guarantors") and The Bank of New
York, as trustee (the "Trustee"). The Securities have the
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benefit of a Registration Rights Agreement (the "Registration Rights
Agreement"), dated May 13, 1999, among the Company, the Subsidiary Guarantors
and the Initial Purchasers, pursuant to which the Company has agreed to
register the Securities under the Act subject to the terms and conditions
therein specified. To the extent there are no additional parties listed on
Schedule I other than you, the term Representatives as used herein shall mean
you as the Initial Purchasers, and the terms Representatives and Initial
Purchasers shall mean either the singular or plural as the context requires.
The use of the neuter in this Agreement shall include the feminine and
masculine wherever appropriate. Certain terms used herein are defined in
Section 17 hereof.
The sale of the Securities to the Initial Purchasers will be
made without registration of the Securities under the Act in reliance upon
exemptions from the registration requirements of the Act.
In connection with the sale of the Securities, the Company has
prepared a preliminary offering memorandum, dated May 5, 1999 (as amended or
supplemented at the Execution Time, the "Preliminary Memorandum"), and a final
offering memorandum, dated May 13, 1999 (as amended or supplemented at the
Execution Time, the "Final Memorandum"). Each of the Preliminary Memorandum and
the Final Memorandum sets forth certain information concerning the Company and
the Securities. The Company hereby confirms that it has authorized the use of
the Preliminary Memorandum and the Final Memorandum in the manner set forth
herein, and any amendment or supplement thereto, in connection with the offer
and sale of the Securities by the Initial Purchasers.
1. Representations and Warranties. The Company and each of the
Subsidiary Guarantors jointly and severally represent and warrant to each
Initial Purchaser as set forth below in this Section 1.
(1) The Preliminary Memorandum, at the date thereof, did not
contain any untrue statement of a material fact or 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. At the
Execution Time and on the Closing Date (as defined in Section 3
hereof), the Final Memorandum did not, and will not (and any amendment
or supplement thereto, at the date thereof and at the Closing Date will
not), contain any untrue statement of a material fact or 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;
provided, however, that the Company and the Subsidiary Guarantors make
no representation or warranty as to the information contained in or
omitted from the Preliminary Memorandum or the Final Memorandum, or any
amendment or supplement thereto, in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of
the Initial Purchasers through the Representatives specifically for
inclusion therein.
(2) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf (other than the Initial
Purchasers, as to whom the Company and the Subsidiary Guarantors make
no representation) has made offers or sales of any security,
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or solicited offers to buy any security, under circumstances that would
require the registration of the Securities under the Act.
(3) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf (other than the Initial
Purchasers, as to whom the Company and the Subsidiary Guarantors make
no representation) has engaged in any form of general solicitation or
general advertising (within the meaning of Regulation D) in connection
with any offer or sale of the Securities in the United States.
(4) Subject to the compliance by the Initial Purchasers with
the representations and warranties set forth in Section 4 hereof, the
Securities satisfy the eligibility requirements of Rule 144A(d)(3)
under the Act.
(5) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf (other than the Initial
Purchasers, as to whom the Company and the Subsidiary Guarantors make
no representation) has engaged in any directed selling efforts with
respect to the Securities, and each of them (other than the Initial
Purchasers, as to whom the Company and the Subsidiary Guarantors make
no representation) has complied with the offering restrictions
requirements of Regulation S. Terms used in this paragraph have the
meanings given to them by Regulation S.
(6) The Company has been advised by The Portal Market of the
NASD that the Securities have been designated Portal-eligible
securities in accordance with the rules and regulations of the NASD.
(7) The Company is not, and after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Final Memorandum will not be, an
"investment company" within the meaning of the Investment Company Act,
without taking account of any exemption arising out of the number of
holders of the Company's securities.
(8) The Company has not paid or agreed to pay to any person
any compensation for soliciting another to purchase any securities of
the Company (except as contemplated by this Agreement and except in
connection with the privatization of the Company and the transactions
relating thereto).
(9) The Company has not taken, directly or indirectly, any
action designed to cause or result in, or which has constituted or
which might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale
of the Securities.
(10) Each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or
organized with full corporate power and authority to own or lease,
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as the case may be, and to operate its properties and conduct its
business as described in the Final Memorandum, and is duly qualified to
do business as a foreign corporation and is in good standing under the
laws of each jurisdiction in which the conduct of its business as
presently conducted requires such qualification except where the
failure to so qualify or to be in good standing would not have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole.
(11) All the outstanding shares of capital stock of each
subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in the
Final Memorandum, all outstanding shares of capital stock of the
subsidiaries are owned by the Company either directly or through wholly
owned subsidiaries free and clear of any perfected security interest or
any other security interests, claims, liens or encumbrances.
(12) The Company's authorized equity capitalization is as set
forth in the Final Memorandum.
(13) The statements in the Final Memorandum under the
headings "The Acquisition and Related Corporate Restructuring",
"Shareholders and Shareholder Relationships", "Description of Certain
Debt", "Business--Regulatory Environment in Puerto Rico",
"Business--Legal Proceedings", "Certain Tax Considerations",
"Description of Notes" and "Exchange Offer; Registration Rights" fairly
summarize the matters therein described in all material respects.
(14) This Agreement has been duly authorized, executed and
delivered by the Company and the Subsidiary Guarantors; the Indenture
has been duly authorized and, assuming due authorization, execution and
delivery thereof by the Trustee, when executed and delivered by the
Company and the Subsidiary Guarantors, will constitute a legal, valid
and binding instrument enforceable against the Company and the
Subsidiary Guarantors in accordance with its terms (subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights
generally from time to time in effect and to general principles of
equity and to the extent that rights to indemnity may be limited by
federal or state securities laws or the public policy underlying such
laws); the Securities have been duly authorized, and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Initial Purchasers in accordance with
the terms hereof, will have been duly executed and delivered by the
Company and will constitute the legal, valid and binding obligations of
the Company entitled to the benefits of the Indenture (subject, as to
the enforcement of remedies, to applicable bankruptcy, insolvency,
moratorium or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity and to the
extent that rights to indemnity may be limited by federal or state
securities laws or the public policy underlying such laws); and the
Registration Rights Agreement has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and binding
instrument
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enforceable against the Company in accordance with its terms (subject,
as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity and to the extent that rights to indemnity may be
limited by federal or state securities laws or the public policy
underlying such laws).
(15) No consent, approval, authorization, filing with or
order of any court or governmental agency or body is required to be
obtained by the Company in connection with the performance of its
obligations contemplated herein or in the Indenture or the Registration
Rights Agreement, except such as will be obtained under the Act, the
Exchange Act and the Trust Indenture Act in connection with the
transactions contemplated by the Registration Rights Agreement, such as
may be required under the blue sky laws of any jurisdiction in
connection with the transactions contemplated by this Agreement and the
Registration Rights Agreement.
(16) Neither the execution and delivery of the Indenture,
this Agreement or the Registration Rights Agreement, the issue and sale
of the Securities, nor the consummation of any other of the
transactions herein or therein contemplated, will conflict with, result
in a breach or violation of, or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, (i) the charter or by-laws of the Company or
any of its subsidiaries; (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the
Company or any of its subsidiaries is a party or bound or to which any
of their respective properties is subject; or (iii) any statute, law,
rule, regulation, judgment, order or decree applicable to the Company
or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company, any of its subsidiaries or any of
their respective properties except, in the case of clauses (ii) and
(iii) of this paragraph, for those that could not reasonably be
expected to have a material adverse effect on the condition (financial
or otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries taken as a whole.
(17) The consolidated historical financial statements,
together with the notes thereto of the Company and its consolidated
subsidiaries included in the Final Memorandum present fairly in all
material respects the financial condition, results of operations and
cash flows of the Company as of the dates and for the periods
indicated, comply as to form in all material respects with the
applicable accounting requirements of the Act and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as otherwise
noted therein); the selected financial data set forth under the caption
"Selected Consolidated Financial and Operating Data" in the Final
Memorandum fairly present, on the basis stated in the Final Memorandum,
the information included therein; the pro forma financial information
included in the Final Memorandum fairly presents the information shown
therein and has been compiled on the bases described therein; the
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assumptions used in the preparation thereof are reasonable, and the pro
forma adjustments reflect the proper application of those adjustments
to the historical financial statement amounts in the pro forma
financial information included in the Final Memorandum; the pro forma
financial information included in the Final Memorandum comply as to
form in all material respects with the applicable accounting
requirements of Regulation S-X under the Act; and the pro forma
adjustments have been properly applied to the historical amounts in the
compilation of those statements.
(18) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator to which the
Company or any of its subsidiaries is a party or its or their property
is subject is pending or, to the knowledge of the Company, threatened
that (i) could reasonably be expected to have a material adverse effect
on the performance of this Agreement, the Indenture or the Registration
Rights Agreement, or the consummation of any of the transactions
contemplated hereby or thereby; or (ii) could reasonably be expected to
have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Final Memorandum (exclusive of any amendment or
supplement thereto).
(19) The Company and each of its subsidiaries own or lease
all such properties as are necessary to the conduct of their respective
operations as presently conducted.
(20) Neither the Company nor any subsidiary is in violation
or default of (i) any provision of its charter or bylaws; (ii) the
terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which it is a party or bound or to which its
property is subject; or (iii) any statute, law, governmental rule or
regulation, judgment or court decree to which the Company or any of its
subsidiaries is subject except, in the case of clauses (ii) and (iii)
of this paragraph, for any such default or violation which would not
have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and its subsidiaries taken as a whole.
(21) Deloitte & Touche LLP, who have certified certain
financial statements of the Company and its consolidated subsidiaries
and delivered their report with respect to the audited consolidated
financial statements and schedules included in the Final Memorandum,
are independent public accountants with respect to the Company within
the meaning of the Act and the applicable published rules and
regulations thereunder.
(22) Except as described in the Final Memorandum, there are
no stamp or other issuance or transfer taxes or duties or other similar
fees or charges required to be paid in connection with the execution
and delivery of this Agreement or the issuance or sale by the Company
of the Securities.
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(23) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested
extensions thereof (except in any case in which the failure so to file
would not have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and its subsidiaries, taken as a whole, except as set forth in or
contemplated in the Final Memorandum (exclusive of any amendment or
supplement thereto) and has paid all taxes required to be paid by it
and any other assessment, fine or penalty levied against it, to the
extent that any of the foregoing is due and payable, except for any
such assessment, fine or penalty that is currently being contested in
good faith or as would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
except as set forth in or contemplated in the Final Memorandum
(exclusive of any amendment or supplement thereto).
(24) No labor problem or dispute with the employees of the
Company or any of its subsidiaries exists or is threatened or imminent,
and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or its subsidiaries' that
could reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
except as set forth in or contemplated in the Final Memorandum
(exclusive of any amendment or supplement thereto).
(25) Except as described in the Final Memorandum, the Company
and each of its subsidiaries carry or are covered by insurance in such
amounts and covering such risks as is customary for companies engaged
in similar businesses in similar industries.
(26) No subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on such subsidiary's capital stock, from
repaying to the Company any loans or advances to such subsidiary from
the Company or from transferring any of such subsidiary's property or
assets to the Company or any other subsidiary of the Company, except as
described in or contemplated by the Final Memorandum.
(27) The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the
appropriate federal, state, local or foreign regulatory authorities and
has made all declarations and filings with such authorities, necessary
or required to own, lease, license and use their properties and assets
and to conduct their respective businesses except where the failure to
possess such licenses, certificates, permits and other authorizations
or to make such declarations and filings would not have a material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth or contemplated in the
Final Memorandum (exclusive of any amendment or supplement thereto),
and neither the Company nor any such subsidiary has received any notice
of proceedings relating to the revocation or modification of any such
certificate,
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authorization or permit which could reasonably be expected to have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, except as set forth in or contemplated
in the Final Memorandum (exclusive of any amendment or supplement
thereto).
(28) The Company and its subsidiaries are implementing a
comprehensive, detailed program to analyze and address the risk that
the computer hardware and software used by them may be unable to
recognize and properly execute date-sensitive functions involving
certain dates prior to and any dates after December 31, 1999 (the "Year
2000 Problem") and, except as disclosed in the Final Memorandum,
believes, based on its evaluation of its systems, remedial activities
and readiness plans, that such risk will be substantially remedied on a
timely basis without material expense (except for expenses disclosed in
the Final Memorandum) and will not have a material adverse effect upon
the financial condition and results of operations of the Company and
its subsidiaries, taken as a whole; and the Company believes, after due
inquiry, that each significant supplier, vendor or customer used or
serviced by the Company and its subsidiaries and whose systems,
services and products are important to the operations of the Company
and its subsidiaries, has remedied or will remedy on a timely basis the
Year 2000 Problem, except to the extent that a failure to remedy by any
such supplier, vendor or customer would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole. The
Company is in compliance with the Commission's staff legal bulletin No.
5 dated January 12, 1998, as amended to date, related to Year 2000
compliance.
Any certificate signed by any officer of the Company or any
Subsidiary Guarantor and delivered to the Representatives or counsel for the
Initial Purchasers in connection with the offering of the Securities shall be
deemed a representation and warranty by the Company or such Subsidiary
Guarantor, as to matters covered thereby, to each Initial Purchaser.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Initial Purchaser, and each Initial Purchaser agrees,
severally and not jointly, to purchase from the Company, (i) at a purchase
price of 99.577% of the principal amount thereof, plus accrued interest, if
any, from May 20, 1999, to the Closing Date, the principal amount of 6.15%
Senior Notes Due 2002, (ii) at a purchase price of 99.338% of the principal
amount thereof, plus accrued interest, if any, from May 20, 1999, to the
Closing Date, the principal amount of 6.65% Senior Notes due 2006 and (iii) at
a purchase price of 99.294% of the principal amount thereof, plus accrued
interest, if any, from May 20, 1999, to the Closing Date, the principal amount
of 6.80% Senior Notes due 2009, in each case as set forth opposite such Initial
Purchaser's name on Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at 10:00 A.M., New York City time, on May 20, 1999,
which date and time may be postponed by agreement between the Representatives
and the Company or as provided in Section 9 hereof (such date and time of
delivery and payment for the Securities being herein
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called the "Closing Date"). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several Initial Purchasers
against payment by the several Initial Purchasers through the Representatives
of the purchase price thereof to or upon the order of the Company by wire
transfer payable in same-day funds to the account specified by the Company.
Delivery of the Securities shall be made through the facilities of The
Depository Trust Company unless the Representatives shall otherwise instruct in
writing.
4. Offering by Initial Purchasers. Each Initial Purchaser,
severally and not jointly, represents and warrants to and agrees with the
Company that:
(1) It has not offered or sold, and will not offer or sell,
any Securities except (i) to those persons it reasonably believes to be
qualified institutional buyers (as defined in Rule 144A under the Act)
and that, in connection with each such sale, it has taken or will take
reasonable steps to ensure that the purchaser of such Securities is
aware that such sale is being made in reliance on Rule 144A; or (ii) in
accordance with the restrictions set forth in Exhibit A hereto.
(2) Neither it nor any person acting on its behalf has made
or will make offers or sales of the Securities in the United States by
means of any form of general solicitation or general advertising
(within the meaning of Regulation D) in the United States.
5. Agreements. The Company and each of the Subsidiary
Guarantors jointly and severally agree with each Initial Purchaser that:
(1) The Company will furnish to each Initial Purchaser and
to counsel for the Initial Purchasers, without charge, during the
period referred to in paragraph (c) below, as many copies of the Final
Memorandum and any amendments and supplements thereto as you may
reasonably request.
(2) The Company will not amend or supplement the Final
Memorandum without the consent of the Representatives.
(3) If at any time prior to the completion of the sale of
the Securities by the Initial Purchasers (as determined by the
Representatives and notified to the Company), any event occurs as a
result of which the Final Memorandum, as then amended or supplemented,
would include any untrue statement of a material fact or 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,
or if it shall be necessary to amend or supplement the Final Memorandum
to comply with applicable law, the Company promptly (i) will notify the
Representatives of any such event; (ii) subject to the requirements of
paragraph (b) of this Section 5, will prepare an amendment or
supplement that will correct such statement or omission or effect such
compliance; and (iii) will supply any supplemented or amended Final
Memorandum to the several Initial Purchasers and counsel for the
Initial Purchasers without charge in such quantities as you may
reasonably request.
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(4) The Company will use its best efforts in cooperation
with the Initial Purchasers to qualify the Securities for offering and
sale under the applicable securities laws of such jurisdictions as the
Representatives may reasonably designate and to maintain such
qualifications in effect as long as required for the sale of the
Securities provided that such period shall not exceed one year;
provided, however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which
it is not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so
subject. The Company will promptly advise the Representatives of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose.
(5) The Company will not, and will not permit any of its
Affiliates (other than the Initial Purchasers as to whom the Company
and the Subsidiary Guarantors make no representation or agreement) to,
resell any Securities which constitute "restricted securities" under
Rule 144 under the Act that have been acquired by any of them.
(6) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf (other than the Initial Purchasers
as to whom the Company and the Subsidiary Guarantors make no
representation or agreement) will, directly or indirectly, make offers
or sales of any security, or solicit offers to buy any security, under
circumstances that would require the registration of the Securities
under the Act.
(7) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf (other than the Initial Purchasers
as to whom the Company and the Subsidiary Guarantors make no
representation or agreement) will engage in any form of general
solicitation or general advertising (within the meaning of Regulation
D) in connection with any offer or sale of the Securities in the United
States.
(8) So long as any of the Securities are "restricted
securities" within the meaning of Rule 144(a)(3) under the Act, the
Company will, during any period in which it is not subject to and in
compliance with Section 13 or 15(d) of the Exchange Act or it is not
exempt from such reporting requirements pursuant to and in compliance
with Rule 12g3-2(b) under the Exchange Act, provide to each holder of
such restricted securities and to each prospective purchaser (as
designated by such holder) of such restricted securities, upon the
request of such holder or prospective purchaser, any information
required to be provided by Rule 144A(d)(4) under the Act. This covenant
is intended to be for the benefit of the holders, and the prospective
purchasers designated by such holders, from time to time of such
restricted securities.
(9) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf (other than the Initial Purchasers
as to whom the Company and the Subsidiary Guarantors make no
representation or agreement) will engage in any directed
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selling efforts with respect to the Securities, and each of them will
comply with the offering restrictions requirements of Regulation S.
Terms used in this paragraph have the meanings given to them by
Regulation S.
(10) The Company will cooperate with the Representatives and
use its best efforts to permit the Securities to be eligible for
clearance and settlement through The Depository Trust Company.
(11) The Company will not offer, sell, contract to sell,
grant any other option to purchase or otherwise dispose of, directly or
indirectly, or announce the offering of, or file a registration
statement for, any (i) debt securities issued or guaranteed by the
Company or any of its direct or indirect subsidiaries or (ii) any
shares of capital stock of any of the Company's direct or indirect
subsidiaries which are preferred as to payment of dividends or as to
distribution upon liquidation over any other class of capital stock, or
enter into any agreement to do any of the foregoing (other than (w) the
Securities and the New Securities (as defined in the Registration
Rights Agreement), (x) issued pursuant to any credit facility or
commercial paper program permitted under the Indenture, (y)
constituting purchase money debt permitted under the Indenture and (z)
Permitted Receivables Financings (as defined in the Indenture)) for a
period of 90 days from the date the Securities are issued without the
prior written consent of Xxxxxxx Xxxxx Xxxxxx Inc.
(12) The Company will not take, directly or indirectly, any
action designed to cause or result in, or which has constituted or
which might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale
of the Securities.
(13) The Company will not, for so long as the Securities are
outstanding, be or become, an open-end investment company, unit
investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company
Act, and will not be or become a closed-end investment company required
to be registered but not registered thereunder.
(14) The Company and the Subsidiary Guarantors agree to pay
the costs and expenses relating to the following matters: (i) the fees
of the Trustee; (ii) the preparation, printing or reproduction of the
Preliminary Memorandum and Final Memorandum and each amendment or
supplement to either of them; (iii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for
counting and packaging) of such copies of the Preliminary Memorandum
and Final Memorandum, and all amendments or supplements to either of
them, as may, in each case, be reasonably requested for use in
connection with the offering and sale of the Securities; (iv) the
preparation, printing, authentication, issuance and delivery of
certificates for the Securities, including any stamp or transfer taxes
in connection with the original issuance and sale of the Securities;
(v) the printing (or reproduction) and delivery of this
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Agreement, any blue sky memorandum and all other agreements or
documents printed (or reproduced) and delivered in connection with the
offering of the Securities; (vi) any registration or qualification of
the Securities for offer and sale under the securities or blue sky laws
of the several states (including filing fees and the reasonable fees
and expenses of counsel for the Initial Purchasers relating to such
registration and qualification); (vii) admitting the Securities for
trading in The Portal Market, if such admission is required; (viii) the
transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective
purchasers of the Securities; and (ix) the fees and expenses of the
Company's accountants and the fees and expenses of counsel (including
local and special counsel) for the Company; and (x) except as set forth
herein, all other costs and expenses incurred by the Company in
connection with its obligations hereunder.
6. Conditions to the Obligations of the Initial Purchasers.
The obligations of the Initial Purchasers to purchase the Securities shall be
subject to the accuracy of the representations and warranties on the part of
the Company and each of the Subsidiary Guarantors contained herein at the
Execution Time and the Closing Date, to the accuracy of the statements of the
Company and each of the Subsidiary Guarantors made in any certificates pursuant
to the provisions hereof, to the performance by the Company and each of the
Subsidiary Guarantors of its obligations hereunder and to the following
additional conditions:
(1) The Company shall have requested and caused Xxxxxx,
Xxxxxx-Xxxxxxx, Colt & Mosle, counsel for the Company, to furnish to
the Representatives its opinion, dated the Closing Date and addressed
to the Representatives, to the effect that:
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(1) assuming due authorization, execution and
delivery thereof by the Company and each Subsidiary Guarantor in
accordance with the laws of Puerto Rico and assuming due
authorization, execution and delivery by the Trustee, the
Indenture constitutes a legal, valid and binding instrument
enforceable against the Company and each Subsidiary Guarantor in
accordance with its terms (subject, as to enforceability, (a) to
bankruptcy, insolvency (including, without limitation, all laws
relating to preferences and fraudulent transfers), suspension of
payments, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equitable principles (including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether enforcement is sought in a
proceeding at law or equity), (b) to the discretion of the court
before which any proceeding therefor may be brought, (c) to the
extent that exculpation provisions and rights to indemnity may
be limited by United States federal or state securities laws or
the public policy underlying such laws, and (d) to the extent
that any waiver of rights or defenses contained in such
agreement or obligation may be limited by applicable law, and
public policy considerations, and of judicial application of
foreign laws or foreign governmental actions affecting
creditors' rights); assuming due authorization, execution and
delivery thereof by the Company in accordance with the laws of
Puerto Rico and when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid
for by the Initial Purchasers under this Agreement, the
Securities will constitute legal, valid and binding obligations
of the Company entitled to the benefits of the Indenture
(subject, as to enforceability, (a) to bankruptcy, insolvency
(including, without limitation, all laws relating to preferences
and fraudulent transfers), suspension of payments,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equitable principles (including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether enforcement is sought in a
proceeding at law or equity), (b) to the discretion of the court
before which any proceeding therefor may be brought, (c) to the
extent that exculpation provisions and rights to indemnity may
be limited by United States federal or state securities laws or
the public policy underlying such laws, and (d) to the extent
that any waiver of rights or defenses contained in such
agreement or obligation may be limited by applicable law, and
public policy considerations, and of judicial application of
foreign laws or foreign governmental actions affecting
creditors' rights); assuming due authorization, execution and
delivery thereof by the Company and each Subsidiary Guarantor in
accordance with the laws of Puerto Rico and assuming due
authorization, execution and delivery by the Initial Purchasers,
the Registration Rights Agreement constitutes a legal, valid and
binding instrument enforceable against the Company and each
Subsidiary Guarantor in accordance with its terms (subject, as
to enforceability, (a) to bankruptcy, insolvency (including,
without limitation, all laws relating to preferences and
fraudulent transfers), suspension of payments, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equitable
principles
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(including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of
whether enforcement is sought in a proceeding at law or equity),
(b) to the discretion of the court before which any proceeding
therefor may be brought, (c) to the extent that exculpation
provisions and rights to indemnity may be limited by United
States federal or state securities laws or the public policy
underlying such laws, and (d) to the extent that any waiver of
rights or defenses contained in such agreement or obligation may
be limited by applicable law, and public policy considerations,
and of judicial application of foreign laws or foreign
governmental actions affecting creditors' rights); and the
statements set forth under the heading "Description of Notes"
and "Exchange Offer; Registration Rights" in the Final
Memorandum, insofar as such statements purport to summarize
certain provisions of the Securities, the Indenture and the
Registration Rights Agreement, fairly summarize such provisions
in all material respects;
(2) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding by or before
any United States federal court located in the State of New York
or any New York State Court or governmental agency, authority or
body or any arbitrator involving the Company or any of its
subsidiaries or its or their property that is not adequately
disclosed in the Final Memorandum, except in each case for such
proceedings that would not reasonably be expected to result in a
material adverse change in the condition (financial or
otherwise), prospects, earnings, business or properties or
results of operations of the Company and its subsidiaries, taken
as a whole; and the statements in the Final Memorandum under the
headings "The Acquisition and Related Corporate Restructuring"
and "Description of Certain Debt" (insofar as they purport to
describe certain agreements governed by New York law relating to
the privatization of the Company and the related financings),
and "Certain Tax Considerations - United States Federal Income
Tax Considerations" fairly summarize the matters therein
described in all material respects;
(3) such counsel has no reason to believe that at the
Execution Time and on the Closing Date the Final Memorandum
contained or contains any untrue statement of a material fact or
omitted or omits to state any material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading (in each case, other than
the financial statements, the schedules and notes thereto, and
other financial, accounting and statistical information and data
contained therein, and the information and data with respect to
the Commonwealth of Puerto Rico contained in Annex A to the
Final Memorandum, as to which such counsel need express no
opinion);
(4) no consent, approval, authorization, filing with
or order of any United States federal court located in the State
of New York or any New York State Court or governmental agency
or body is required to be obtained by the Company or the
Subsidiary Guarantors in connection with the performance of
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their obligations contained herein or in the Indenture and the
Registration Rights Agreement, except such as may be required
under the Act, the Exchange Act and the Trust Indenture Act in
connection with the transactions contemplated by the
Registration Rights Agreement and such as may be required under
the blue sky laws of any jurisdiction in connection with the
transactions contemplated by this Agreement and the Registration
Rights Agreement and such other approvals (specified in such
opinion) as have been obtained;
(5) neither the execution and delivery of the
Indenture, this Agreement or the Registration Rights Agreement,
the issue and sale of the Securities, nor the performance by the
Company and the Subsidiary Guarantors of their obligations
contained herein or therein, nor the fulfillment of the terms
hereof or thereof will conflict with, result in a breach or
violation of, or imposition of any lien, charge or encumbrance
upon any property or asset of the Company or any of its
subsidiaries pursuant to any New York or United States Federal
statute, law, rule, regulation, judgment, order or decree known
to such counsel to be applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company, any of its subsidiaries or any of
their respective properties;
(6) assuming the accuracy of the representations and
warranties and compliance with the agreements contained herein,
no registration of the Securities under the Act, and no
qualification of an indenture under the Trust Indenture Act, is
required for the offer and sale by the Initial Purchasers of the
Securities in the manner contemplated by this Agreement, it
being understood that no opinion is expressed as to any
subsequent reoffer or resale of any Security; and
(7) the Company is not and, after giving effect to
the offering and sale of the Securities and the application of
the proceeds thereof as described in the Final Memorandum, will
not be an "investment company" as defined in the Investment
Company Act without taking account of any exemption arising out
of the number of holders of the Company's securities.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than the
State of New York or the Federal laws of the United States, as applicable, to
the extent they deem proper and specified in such opinion, upon the opinion of
other counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Initial Purchasers; and (B) as to matters of
fact, to the extent they deem proper, on certificates of responsible officers
of the Company and the Subsidiary Guarantors and public officials. References
to the Final Memorandum in this Section 6(a) include any amendment or
supplement thereto at the Closing Date.
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(2) The Company shall have requested and caused X'Xxxxx &
Xxxxxx, Puerto Rico counsel for the Company, to furnish to the Representatives
its opinion, dated the Closing Date and addressed to the Representatives, to
the effect that:
(1) each of the Company, Puerto Rico Telephone
Company, Inc. and Celulares Telefonica, Inc. (individually, a
"Subsidiary" and collectively, the "Subsidiaries") has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the Commonwealth of Puerto Rico, with
full corporate power and authority to own or lease, as the case
may be, and to operate its properties and conduct its business
as described in the Final Memorandum;
(2) all the outstanding shares of capital stock of
the Company and each Subsidiary have been duly and validly
authorized and issued and are fully paid and nonassessable, and,
except as otherwise set forth in the Final Memorandum, all
outstanding shares of capital stock of the Subsidiaries are, to
the knowledge of such counsel, owned by the Company either
directly or through wholly owned subsidiaries free and clear of
any security interest, claims, liens or encumbrances;
(3) the Company's authorized equity capitalization is
as set forth in the Final Memorandum;
(4) the Indenture, the Securities and the
Registration Rights Agreement have each been duly authorized,
executed and delivered;
(5) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries or
its or their property that is not adequately disclosed in the
Final Memorandum, except in each case for such proceedings that
would not reasonably be expected to result in a material adverse
change in the condition (financial or otherwise), prospects,
earnings, business or properties or results of operations of the
Company and its subsidiaries, taken as a whole; and the
statements in the Final Memorandum under the headings "The
Acquisition and Related Corporate Restructuring" and
"Description of Certain Debt" (insofar as they purport to
describe certain agreements governed by Puerto Rico law relating
to the privatization of the Company and the related financings),
"Certain Tax Considerations - Puerto Rico Tax Considerations",
and "Business--Regulatory Environment in Puerto Rico--Puerto
Rico Telecommunications Act of 1996" fairly summarize the
matters therein described in all material respects;
(6) such counsel has no reason to believe that at the
Execution Time and on the Closing Date the Final Memorandum
contained or contains any untrue statement of a material fact or
omitted or omits to state any material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading (in each case, other than
the financial statements, the
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schedules and notes thereto, and other financial, accounting and
statistical information and data contained therein, and the
information and data with respect to the Commonwealth of Puerto
Rico contained in Annex A to the Final Memorandum, as to which
such counsel need express no opinion);
(7) this Agreement has been duly authorized, executed
and delivered by the Company and each of the Subsidiary
Guarantors;
(8) no consent, approval, authorization, filing with
or order of any court located in Puerto Rico or any Puerto Rico
court or governmental agency or body is required to be obtained
by the Company or the Subsidiary Guarantors in connection with
the performance of their obligations contained herein or in the
Indenture and the Registration Rights Agreement, except such as
may be required under the blue sky laws of any jurisdiction in
connection with the transactions contemplated by this Agreement
and the Registration Rights Agreement; and
(9) neither the execution and delivery of the
Indenture, this Agreement or the Registration Rights Agreement,
the issue and sale of the Securities, nor the performance by the
Company and the Subsidiary Guarantors of their obligations
contained herein or therein, nor the fulfillment of the terms
hereof or thereof will conflict with, result in a breach or
violation of, or imposition of any lien, charge or encumbrance
upon any property or asset of the Company or any of its
subsidiaries pursuant to, (i) the charter or by-laws of the
Company or any of its subsidiaries; or (ii) any Puerto Rico or
United States Federal statute, law, rule or regulation,
judgment, order or decree known to such counsel to be applicable
to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the
Company, any of its subsidiaries or any of their respective
properties.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than the
Commonwealth of Puerto Rico or the Federal laws of the United States, as
applicable, to the extent they deem proper and specified in such opinion, upon
the opinion of other counsel of good standing whom they believe to be reliable
and who are satisfactory to counsel for the Initial Purchasers; and (B) as to
matters of fact, to the extent they deem proper, on certificates of responsible
officers of the Company and the Subsidiary Guarantors and public officials.
References to the Final Memorandum in this Section 6(b) include any amendment
or supplement thereto at the Closing Date.
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(3) The Company shall have requested and caused Xxxx Xxxxxx,
Esq., Vice-President for Legal and Regulatory Affairs and General
Counsel of the Company, to furnish to the Representatives his opinion,
dated the Closing Date and addressed to the Representatives, to the
effect that:
(i) each of the Company and its subsidiaries is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification;
(ii) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries or
its or their property that is not adequately disclosed in the
Final Memorandum, except in each case for such proceedings that
would not reasonably be expected to result in a material adverse
change in the condition (financial or otherwise), prospects,
earnings, business or properties or results of operations of the
Company and its subsidiaries, taken as a whole; and the
statements in the Final Memorandum under the headings "The
Acquisition and Related Corporate Restructuring", "Shareholders
and Shareholder Relationships", "Description of Certain Debt",
"Certain Tax Considerations", "Business--Regulatory Environment
in Puerto Rico" and "Business--Legal Proceedings" fairly
summarize the matters therein described in all material
respects;
(iii) no consent, approval, authorization, filing with or
order of any court or governmental agency or body is required in
connection with the transactions contemplated herein or in the
Indenture and the Registration Rights Agreement, except such as
may be required under the Act, the Exchange Act and the Trust
Indenture Act in connection with the transactions contemplated
by the Registration Rights Agreement and such as may be required
under the blue sky laws of any jurisdiction in connection with
the transactions contemplated by this Agreement and the
Registration Rights Agreement and such other approvals
(specified in such opinion) as have been obtained;
(iv) such counsel has no reason to believe that at the
Execution Time and on the Closing Date the Final Memorandum
contained or contains any untrue statement of a material fact or
omitted or omits to state any material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading (in each case, other than
the financial statements and other financial information
contained therein, as to which such counsel need express no
opinion); and
(v) neither the execution and delivery of the Indenture,
this Agreement or the Registration Rights Agreement, the issue
and sale of the Securities, nor the consummation of any other of
the transactions herein or therein contemplated, nor the
fulfillment of the terms hereof or thereof will conflict with,
result in a breach
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or violation of, or imposition of any lien, charge or
encumbrance upon any property or asset of the Company or any of
its subsidiaries pursuant to, (i) the charter or by-laws of the
Company or any of its subsidiaries; (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or any of
its subsidiaries is a party or bound or to which any of their
respective properties is subject; or (iii) any statute, law,
rule, regulation, judgment, order or decree applicable to the
Company or any of its subsidiaries of any court, regulatory
body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company, any of its
subsidiaries or any of their respective properties.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than the
Commonwealth of Puerto Rico or the Federal laws of the United States, as
applicable, to the extent he deems proper and specified in such opinion, upon
the opinion of other counsel of good standing whom he believes to be reliable
and who are satisfactory to counsel for the Initial Purchasers; and (B) as to
matters of fact, to the extent he deems proper, on certificates of responsible
officers of the Company and the Subsidiary Guarantors and public officials.
References to the Final Memorandum in this Section 6(c) include any amendment
or supplement thereto at the Closing Date.
(4) The Company shall have requested and caused Xxxx Xxxxxx,
Esq., Vice-President for Legal and Regulatory Affairs and General
Counsel of the Company, to furnish to the Representatives his opinion,
dated the Closing Date and addressed to the Representatives, to the
effect that:
(1) the Company and its subsidiaries possess all
licenses, certificates, permits and authorizations required by
the Federal Communications Commission ("FCC") and comparable
regulatory agencies with direct regulatory jurisdiction over
telecommunications matters in the states and United States
territories, including the Commonwealth of Puerto Rico, in which
the Company and its subsidiaries provide telecommunications
services (the "Regulatory Agencies") for the provision of
telecommunications services by the Company and its subsidiaries,
where the failure to obtain or hold such license, certificate,
permit or authorization would have a material adverse effect on
the ability of the Company or its subsidiaries to provide such
services, and none of the Company or any subsidiary has received
any notice of proceedings relating to the revocation or
modification of any such license, certificate, permit or
authorization which could reasonably be expected to have a
material adverse effect on the Company or such subsidiary, in
connection with the provision of such services;
(2) to the knowledge of such counsel, neither the
Company nor any of its subsidiaries is subject to any pending or
threatened proceeding, complaint or investigation before the FCC
or any Regulatory Agency based on any alleged violation by the
Company or its subsidiaries in connection with the provision of
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or failure to provide telecommunications services, of a
character that would be required to be disclosed in the Final
Memorandum, which is not adequately disclosed in the Final
Memorandum;
(3) the statements included in the Final Memorandum
under the headings "Risk Factors--We Face a Significant Increase
in Competition" and "Risk Factors--The Local and Long Distance
Industries are Subject to Significant Government Regulation", to
the extent such statements relate to regulatory matters, fairly
summarize the matters therein described in all material
respects;
(4) no consent, approval, authorization, license,
certificate, permit or order of the FCC or any Regulatory Agency
is required for the issuance and sale of the Securities or in
connection with the transactions contemplated herein or in the
Indenture and the Registration Rights Agreement;
(5) the execution and delivery of this Agreement,
the Indenture and the Registration Rights Agreement, the
issuance and sale of the Securities, the consummation of any
other of the transactions herein or therein contemplated and the
fulfillment of the terms hereof or thereof will not conflict
with or result in a breach or violation of the Communications
Act of 1934, as amended, the Puerto Rico Telecommunications Act
of 1996, any order or regulation of the FCC or any Regulatory
Agency applicable to the Company or any of its subsidiaries or
cause the suspension, revocation, impairment, forfeiture,
nonrenewal or termination of any FCC license or other
authorization of the FCC; and
(6) such counsel has no reason to believe that at
the Execution Time and on the Closing Date the Final Memorandum
contained or contains any untrue statement of a material fact or
omitted or omits to state any material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
Such counsel's opinions may be based solely on the
Communications Act of 1934, as amended, the Puerto Rico Telecommunications Act
of 1996, decisions of the FCC and FCC rules and regulations, comparable state
statutes governing telecommunications, and the rules and regulations of the
Regulatory Agencies. References to the Final Memorandum in this Section 6(d)
include any amendment or supplement thereto at the Closing Date.
(5) The Representatives shall have received from
Cravath, Swaine & Xxxxx, counsel for the Initial Purchasers, such
opinion or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the
Securities, the Indenture, the Registration Rights Agreement, the Final
Memorandum (as amended or supplemented at the Closing Date) and other
related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such
matters.
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(6) The Company shall have furnished to the Representatives
a certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Final Memorandum, any amendment
or supplement to the Final Memorandum and this Agreement and that to
their knowledge:
(1) the representations and warranties of the Company
and each Subsidiary Guarantor in this Agreement are true
and correct in all material respects on and as of the Closing
Date with the same effect as if made on the Closing Date, and
the Company and each Subsidiary Guarantor has complied with all
the agreements and satisfied all the conditions on its part to
be performed or satisfied hereunder at or prior to the Closing
Date; and
(2) since the date of the most recent financial
statements included in the Final Memorandum (exclusive
of any amendment or supplement thereto), there has been no
material adverse change in the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated by the Final Memorandum
(exclusive of any amendment or supplement thereto).
(7) At the Execution Time and at the Closing Date, the
Company shall have requested and caused Deloitte & Touche LLP to
furnish to the Representatives letters, dated respectively as of the
Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable rules and regulations adopted by the
Commission thereunder, that they have performed a review of the
unaudited interim financial information of the Company for the three
month period ended March 31, 1999 and as at March 31, 1999, and stating
in effect that:
(1) in their opinion the audited financial
statements and financial statement schedules and any pro forma
financial statements included in the Final Memorandum and
reported on by them comply as to form in all material respects
with the applicable accounting requirements of the Exchange Act
and the related rules and regulations adopted by the Commission
thereunder that would apply to the Final Memorandum if the Final
Memorandum were a prospectus included in a registration
statement on Form S-1 under the Act;
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(2) on the basis of a reading of the latest
unaudited financial statements made available by the Company and
its subsidiaries; their limited review, in accordance with the
standards established under Statement on Auditing Standards No.
71, of the unaudited interim financial information for the three
month period ended March 31, 1999 , and as at March 31, 1999, as
indicated in their reports included in the Final Memorandum;
carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the
directors of the Company and the Subsidiaries; and inquiries of
certain officials of the Company who have responsibility for
financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to
December 31, 1998, nothing came to their attention which caused
them to believe that:
(1) any unaudited financial statements
included in the Final Memorandum do not comply in form in
all material respects with applicable accounting
requirements and with the related rules and regulations
adopted by the Commission with respect to financial
statements included or incorporated in quarterly reports
on Form 10-Q under the Exchange Act; and said unaudited
financial statements are not in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited
financial statements included in the Final Memorandum;
(2) with respect to the period subsequent
to March 31, 1999, there were any changes, at a specified
date not more than five days prior to the date of the
letter, in the long-term debt of the Company and its
subsidiaries or capital stock of the Company or decreases
in the stockholders' equity of the Company as compared
with the amounts shown on the March 31, 1999 consolidated
balance sheet included in the Final Memorandum, or for
the period from April 1, 1999 to such specified date
there were any decreases, as compared with the
corresponding period in the preceding year in net
revenues, sales, operating income, EBITDA, or in total or
per share amounts of net income of the Company and its
subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said
explanation is not deemed necessary by the
Representatives;
(3) the information included in response to
Regulation S-K, Item 301 (Selected Financial Data) and
Item 503(d) (Ratio of Earnings to Fixed Charges) is not
in conformity with the disclosure requirements of
Regulation S-K; or
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(3) they have performed certain other
specified procedures as a result of which they determined that
certain information of an accounting, financial or statistical
nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Final Memorandum,
including the information set forth under the captions
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" and "Business" in the Final Memorandum,
agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation;
(4) on the basis of a reading of the
unaudited pro forma financial statements (the "pro forma
financial statements") included in the Final Memorandum;
carrying out certain specified procedures; inquiries of certain
officials of the Company who have responsibility for financial
and accounting matters; and proving the arithmetic accuracy of
the application of the pro forma adjustments to the historical
amounts in the pro forma financial statements, nothing came to
their attention which caused them to believe that the pro forma
financial statements do not comply in form in all material
respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X or that the pro forma adjustments have
not been properly applied to the historical amounts in the
compilation of such statements.
References to the Final Memorandum in this Section 6(g) include
any amendment or supplement thereto at the date of the applicable
letter.
(8) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Final Memorandum
(exclusive of any amendment or supplement thereto), there shall not
have been (i) any change or decrease specified in the letter or letters
referred to in paragraph (g) of this Section 6; or (ii) any change, or
any development involving a prospective change, in or affecting the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
except as set forth in or contemplated in the Final Memorandum
(exclusive of any amendment or supplement thereto) the effect of which,
in any case referred to in clause (i) or (ii) above, is, in the sole
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to market the Securities as contemplated by
the Final Memorandum (exclusive of any amendment or supplement
thereto).
(9) The Securities shall be eligible for clearance and
settlement through The Depository Trust Company.
(10) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), any notice given of
any intended or potential decrease in any such rating (including notice
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of an adverse change in the outlook for such rating) or of a possible
change in any such rating that does not indicate the direction of the
possible change.
(11) In connection with the closing of the purchase and sale
of the Securities, the net proceeds therefrom will be applied to reduce
borrowings under the 364-day Credit Agreement dated as of March 2,
1999, among the Company, the Subsidiary Guarantors and the lenders and
agents named therein.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Initial Purchasers, this Agreement and all obligations of the Initial
Purchasers hereunder may be canceled at, or at any time prior to, the Closing
Date by the Representatives. Notice of such cancelation shall be given to the
Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 will be
delivered at the office of counsel for the Initial Purchasers, at Cravath,
Swaine & Xxxxx, 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
7. Reimbursement of Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Initial Purchasers set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company or any Subsidiary
Guarantor to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Initial Purchasers, the Company
and the Subsidiary Guarantors will reimburse the Initial Purchasers severally
through Xxxxxxx Xxxxx Barney Inc. on demand for all reasonable and duly
documented out-of-pocket expenses (including reasonable fees and disbursements
of counsel) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company and each of
the Subsidiary Guarantors jointly and severally agree to indemnify and hold
harmless each Initial Purchaser, the directors, officers, employees and agents
of each Initial Purchaser and each person who controls any Initial Purchaser
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Preliminary Memorandum, the Final Memorandum (or
in any supplement or amendment thereto) or any information provided by the
Company to any holder or prospective purchaser of Securities pursuant to
Section 5(h), or in any amendment thereof or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
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the statements therein, in the light of the circumstances under which they were
made, not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company and the Subsidiary
Guarantors will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made in
the Preliminary Memorandum or the Final Memorandum, or in any amendment thereof
or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Initial Purchasers
through the Representatives specifically for inclusion therein and provided
further, however, that with respect to any untrue statement or omission of a
material fact made in the Preliminary Memorandum, the indemnity agreement
contained in this Section 8(a) shall not inure to the benefit of any Initial
Purchaser from whom the person asserting any such loss, claim, damage or
liability purchased the Securities concerned in any initial resale of the
Securities by the Initial Purchaser, to the extent that any such loss, claim,
damage or liability of such Initial Purchaser occurs under the circumstance
where it shall have been determined by a court of competent jurisdiction by
final and nonappealable judgment that (i) the untrue statement or omission of a
material fact contained in the Preliminary Memorandum was corrected in the
Final Memorandum, (ii) the Company previously furnished copies of the Final
Memorandum to the Initial Purchasers and (iii) such loss, claim, damage or
liability results from the fact that there was not sent or given to such person
at or prior to the written confirmation of the sale of such Securities to such
person, a copy of the Final Memorandum. This indemnity agreement will be in
addition to any liability that the Company and the Subsidiary Guarantors may
otherwise have.
(b) Each Initial Purchaser severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Initial Purchaser, but only with reference to written
information relating to such Initial Purchaser furnished to the Company by or
on behalf of such Initial Purchaser through the Representatives specifically
for inclusion in the Preliminary Memorandum or the Final Memorandum (or in any
amendment or supplement thereto). This indemnity agreement will be in addition
to any liability which any Initial Purchaser may otherwise have. The Company
acknowledges that the statements set forth in the last paragraph of the cover
page regarding the delivery of the Securities and, under the heading "Plan of
Distribution", (i) the list of Initial Purchasers and their respective
participation in the sale of the Securities; (ii) the sentences related to
concessions and reallowances; and (iii) the paragraph related to stabilization,
syndicate covering transactions and penalty bids in the Preliminary Memorandum
and the Final Memorandum, constitute the only information furnished in writing
by or on behalf of the Initial Purchasers for inclusion in the Preliminary
Memorandum or the Final Memorandum (or in any amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will
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not relieve it from liability under paragraph (a) or (b) above unless and to
the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses;
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be
entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ one firm of separate counsel (in addition to local
counsel), and the indemnifying party shall bear the reasonable fees, costs and
expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest; (ii) the actual or potential defendants
in, or targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party; (iii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action; or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, 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.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party although within the scope thereof, the Company, each
Subsidiary Guarantor and the Initial Purchasers severally agree to contribute to
the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the Initial
Purchasers may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Subsidiary Guarantors on the
one hand and by the Initial Purchasers on the other from the offering of the
Securities; provided, however, that in no case shall any Initial Purchaser
(except as may be provided in any agreement among the Initial Purchasers
relating to the offering of the Securities) be responsible for any amount in
excess of the purchase discount or commission applicable to the Securities
purchased by such Initial Purchaser hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company, each
Subsidiary Guarantor and the Initial Purchasers severally shall contribute in
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company and the Subsidiary Guarantors on the one
hand and of the Initial Purchasers on the
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other in connection with the statements or omissions which resulted in such
Losses, as well as any other relevant equitable considerations. Benefits
received by the Company and the Subsidiary Guarantors shall be deemed to be
equal to the total net proceeds from the offering (before deducting expenses)
received by the Company, and benefits received by the Initial Purchasers shall
be deemed to be equal to the total purchase discounts and commissions in each
case set forth on the cover of the Final Memorandum. Relative fault shall be
determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the Company on the
one hand or the Initial Purchasers 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, each Subsidiary
Guarantor and the Initial Purchasers agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls an Initial Purchaser within the meaning of either the
Act or the Exchange Act and each director, officer, employee and agent of an
Initial Purchaser shall have the same rights to contribution as such Initial
Purchaser, and each person who controls the Company within the meaning of either
the Act or the Exchange Act and each officer and director of the Company shall
have the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. Default by an Initial Purchaser. If any one or more Initial
Purchasers shall fail to purchase and pay for any of the Securities agreed to
be purchased by such Initial Purchaser hereunder and such failure to purchase
shall constitute a default in the performance of its or their obligations under
this Agreement, the remaining Initial Purchasers shall be obligated severally
to take up and pay for (in the respective proportions which the principal
amount of Securities set forth opposite their names on Schedule I hereto bears
to the aggregate principal amount of Securities set forth opposite the names of
all the remaining Initial Purchasers) the Securities which the defaulting
Initial Purchaser or Initial Purchasers agreed but failed to purchase;
provided, however, that in the event that the aggregate principal amount of
Securities which the defaulting Initial Purchaser or Initial Purchasers agreed
but failed to purchase shall exceed 10% of the aggregate principal amount of
Securities set forth on Schedule I hereto, the remaining Initial Purchasers
shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if such nondefaulting Initial Purchasers
do not purchase all the Securities, this Agreement will terminate without
liability to any nondefaulting Initial Purchaser or the Company. In the event
of a default by any Initial Purchaser as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding five Business
Days, as the Representatives shall determine in order that the required changes
in the Final Memorandum or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any defaulting
Initial Purchaser of its liability, if any, to the Company or any nondefaulting
Initial Purchaser for damages occasioned by its default hereunder.
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10. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Representatives, by notice given to the
Company prior to delivery of and payment for the Securities, if at any time
prior to such time (i) trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum prices shall have been
established on such Exchange; (ii) a banking moratorium shall have been
declared either by Federal or New York State authorities; or (iii) there shall
have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war or other calamity or crisis the
effect of which on financial markets of the United States is such as to make
it, in the sole judgment of the Representatives, impracticable or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Final Memorandum (exclusive of any amendment or supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers and of the Initial Purchasers set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of the Initial Purchasers or the Company
or any of the officers, directors, employees, agents or controlling persons
referred to in Section 8 hereof, and will survive delivery of and payment for
the Securities. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancelation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the Xxxxxxx Xxxxx Xxxxxx Inc. General Counsel (fax
no. (000) 000-0000) and confirmed to the General Counsel, Xxxxxxx Xxxxx Barney
Inc. at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General
Counsel; or, if sent to the Company, will be mailed, delivered or telefaxed to
Xxxx Xxxxxx, Esq., Vice-President of Legal and Regulatory Affairs and General
Counsel of the Company (fax no. (000) 000-0000) and confirmed to it at
Telecomunicaciones de Puerto Rico, Inc., 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxx Xxxx 00000, Attention: General Counsel.
13. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and, except as expressly set forth in Section 5(h) hereof, no
other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
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17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Affiliate" shall have the meaning specified in Rule 501(b) of
Regulation D.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in The City of New York.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Investment Company Act" shall mean the Investment Company Act
of 1940, as amended, and the rules and regulations of the Commission
promulgated thereunder.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Regulation D" shall mean Regulation D under the Act.
"Regulation S" shall mean Regulation S under the Act.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission promulgated
thereunder.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this Agreement and your acceptance shall represent a binding
agreement between the Company, the Subsidiary Guarantors and the several
Initial Purchasers.
Very truly yours,
Telecomunicaciones de Puerto Rico, Inc.
by
----------------------------------
Name:
Title:
Puerto Rico Telephone Company, Inc.,
by
----------------------------------
Name:
Title:
Celulares Telefonica, Inc.,
by
----------------------------------
Name:
Title:
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The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxx Securities Inc.
X.X. Xxxxxx Securities Inc.
NationsBanc Xxxxxxxxxx Securities LLC
Popular Securities, Inc.
By: Xxxxxxx Xxxxx Barney Inc.
by
----------------------
Name:
Title:
For themselves and the other several Initial
Purchasers named in Schedule I to
the foregoing Agreement.
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SCHEDULE I
Principal Principal Principal
Amount of Amount of Amount of
6.15% Senior 6.65% Senior 6.80% Senior
Notes Due Notes Due Notes Due
2002 to be 2006 to be 2009 to be
Initial Purchasers Purchased Purchased Purchased
------------------
Xxxxxxx Xxxxx Xxxxxx Inc.................... $147,000,000 $196,000,000 $147,000,000
Chase Securities Inc........................ $49,500,00 $66,000,000 $49,5000,00
X.X. Xxxxxx Securities Inc............... $49,500,000 $66,000,000 $49,500,000
NationsBanc Xxxxxxxxxx Securities LLC $49,500,000 $66,000,000 $49,500,000
Popular Securities, Inc..................... $4,500,000 $6,000,000 $4,500,000
-------- -------- --------
Total....................................... $300,000,000 $400,000,000 $300,000,000
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EXHIBIT A
Selling Restrictions for Offers and
Sales outside the United States
(1)(a) The Securities have not been and will not be registered
under the 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 Act or pursuant to an exemption from the registration
requirements of the Act. Each Initial Purchaser represents and agrees that,
except as otherwise permitted by Section 4(a)(i) of the Agreement to which this
is an exhibit, it has offered and sold the Securities, and will offer and sell
the Securities, (i) as part of their distribution at any time; and (ii)
otherwise until 40 days after the later of the commencement of the offering and
the Closing Date, only in accordance with Rule 903 of Regulation S under the
Act. Accordingly, each Initial Purchaser represents and agrees that neither it,
nor any of its Affiliates nor any person acting on its or their behalf has
engaged or will engage in any directed selling efforts with respect to the
Securities, and that it and they have complied and will comply with the
offering restrictions requirement of Regulation S. Each Initial Purchaser
agrees that, at or prior to the confirmation of sale of Securities (other than
a sale of Securities pursuant to Section 4(a)(i) of the Agreement to which this
is an exhibit), it shall have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that purchases
Securities from it during the distribution compliance period a confirmation or
notice to substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Act") and may not be
offered or sold within the United States or to, or for the
account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after
the later of the commencement of the offering and May 20, 1999,
except in either case in accordance with Regulation S or Rule
144A under the Act. Terms used above have the meanings given to
them by Regulation S."
(b) Each Initial Purchaser also represents and agrees that it
has not entered and will not enter into any contractual arrangement
with any distributor with respect to the distribution of the
Securities, except with its Affiliates or with the prior written
consent of the Company.
(c) Terms used in this section have the meanings given to them
by Regulation S.
(2) Each Initial Purchaser represents and agrees that (i) it has
not offered or sold, and will not offer or sell, any Securities in the United
Kingdom, by means of any document, other than to persons whose ordinary
business it is to buy, hold, manage or dispose of investments, whether as
principal or as agent, for the purpose of their businesses or in circumstances
which do not constitute an offer to the public within the meaning of the
Companies Xxx 0000 of Great Britain; (ii) it has complied and will comply with
all applicable
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provisions of the Financial Services Xxx 0000 of the United Kingdom with
respect to anything done by it in relation to the Securities in, from or
otherwise involving the United Kingdom; and (iii) it has 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 issue of the Securities to a person who is of a
kind described in Article 9(3) of the Financial Services Xxx 0000 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom the document may
otherwise lawfully be issued or passed on.
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