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Exhibit 10.10
EXECUTION COPY
NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT (the "Agreement"), dated as of March 2,
1999 among Telecomunicaciones de Puerto Rico, Inc. (the "Corporation"), a Puerto
Rico corporation, GTE Holdings (Puerto Rico) LLC, a limited liability company
organized under the Laws of Delaware ("Purchaser"), GTE Corporation, a New York
corporation ("GTE"), GTE International Telecommunications Incorporated, a
Delaware corporation and sole shareholder of Purchaser ("Strategic Purchaser"),
Popular, Inc. (together with Purchaser, GTE, and Strategic Purchaser the
"Purchaser Group"), and Puerto Rico Telephone Authority ("PRTA"), a public
corporation and government instrumentality of the Commonwealth of Puerto Rico
("Puerto Rico"), and the Government Development Bank for Puerto Rico ("GDB").
WITNESSETH
WHEREAS, Strategic Purchaser, Purchaser, Puerto Rico Telephone Company,
Inc., a Puerto Rico corporation ("PRTC"), and PRTA have entered into an Amended
and Restated Stock Purchase Agreement, dated as of July 21, 1998 (as amended
from time to time, the "Purchase Agreement"); and
WHEREAS, members of the Purchaser Group and PRTA have substantial
knowledge and expertise in the telecommunications industry and with respect to
the Corporation and its
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subsidiaries and the Strategic Purchaser will obtain ongoing knowledge of the
Corporation and its subsidiaries in connection with the performance of its
obligations under the Management Agreement, dated as of the date hereof, among
the Corporation, PRTC and Strategic Purchaser (the "Management Agreement"); and
WHEREAS, as a condition to Closing, the Purchase Agreement requires the
parties hereto to enter into this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, the parties agree as follows:
1. Definitions.
1.1 General. Unless otherwise defined herein, each capitalized term
used herein and not otherwise defined shall have the meaning set forth in the
Purchase Agreement.
1.2 "Affiliate" means, as to any Person (i) an entity at least a
majority of the voting capital stock of which is owned directly or indirectly by
such Person, (ii) an entity that directly or indirectly owns at least a majority
of the voting capital stock of such Person, and (iii) an entity a majority of
the voting capital stock of which is directly or indirectly owned by an entity
of the type described in clause (ii) above.
2. Non-Compete; Non-Disclosure.
2.1 Restricted Activity. For the purposes of this Agreement,
"Restricted Activity" means the development, acquisition, construction,
management, ownership or operation of
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wireline or wireless telecommunications, data transmission or Internet related
systems and businesses, and all service businesses directly related thereto,
including the application for the development and acquisition of licenses,
permits and authorizations as are necessary or appropriate for any of the
foregoing, and which systems and businesses are primarily for service in or from
Puerto Rico.
2.2 Covenant Not to Compete.
(a) Each member of the Purchaser Group (other than Popular,
Inc. in the case of Section 2.2(a)(i)), GDB and PRTA (each a "Restricted Party")
agree that they shall not:
(i) Until the earlier to occur of the following: (x) the
date when PRTA and any other Puerto Rico Entity ceases to continue to own or
control, in the aggregate, at least 5% of the shares of capital stock of the
Corporation, and (y) the later of (A) seven years and (B) one year after a sale
of Shares by any Puerto Rico Entity in a public offering of Shares on behalf of
any Puerto Rico Entity by the Corporation (the "Non-Competition Expiration
Date"), engage, directly or indirectly, including without limitation through any
Affiliate (other than the Corporation and its subsidiaries), in any manner
(including, without limitation, as a shareholder, owner, investor, partner,
joint venturer, independent contractor, consultant or advisor, or in any other
capacity as principal or
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agent), in any Restricted Activity. Notwithstanding the above, the foregoing
covenant shall not be deemed to prohibit (i) any member of the Purchaser Group
and its Affiliates on the one hand and PRTA and its Affiliates on the other hand
from acquiring as an investment not more than two percent (2%), in the
aggregate, of the capital stock of a corporation engaged, directly or
indirectly, in a Restricted Activity, whose stock is traded on a national
securities exchange or over-the-counter; (ii) activities of GTE or its
subsidiaries, divisions and Affiliates described on Schedule 1; (iii) activities
of Puerto Rico Entities of the nature conducted on the date hereof (including
ownership of interests in Telecomunicaciones Ultramarinas de Puerto Rico, Inc.
and TLD) other than the provision of local telephone service or intra-island,
national or international long distance telecommunication service, which
activities are ancillary to the primary function of such entities; and private
network services and activities among the Puerto Rico Entities; (iv) ownership
of Shares of the Corporation; (v) the provision of services or technology to the
Corporation and its subsidiaries pursuant to the Management Agreement, the U.S.
Management Agreement, the Technology Transfer Agreement or similar agreements;
or (vi) exercising any of its rights or complying with any of its obligations
under the Shareholders Agreement or the Option Agreement; provided, however,
that the
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foregoing shall not prohibit the provision of local telephone service or
intra-island, national or international long distance service by TLD or the
ownership of interests therein for so long as the Puerto Rico Entities do not
increase their investment therein or control the management of TLD;
(ii) At any time prior to 180 days after consummation of
the initial public offering or widely disseminated private placement by the
Puerto Rico Entities or the Corporation of Shares, call upon or otherwise
solicit any Person who is, at that time, a director, officer or key employee of
the Corporation or its subsidiaries for the purpose or with the intent of
enticing or otherwise influencing such employee away from or out of the employ
of the Corporation or its subsidiaries other than by solicitations in newspapers
or media made available to the general public.
(b) During the period specified in Section 4.10(b), (i)
Popular, Inc. will comply with the requirements of the Bank Holding Company Act
of 1956 restricting the non-banking activities of bank holding companies and
shall comply with any restrictions imposed in respect of its investments or
activities by applicable law, and (ii) in no event will Popular, Inc. make an
investment in the equity of a company (other than the Corporation) engaged in
providing substantial telecommunications services in Puerto Rico, except for
investments of not more than
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2% of the equity of companies whose stock is traded on a national securities
exchange or over the counter, or control the management of any business (other
than the Corporation) with substantial telecommunications operations in Puerto
Rico.
(c) It is agreed by the parties that the foregoing covenants
in this Section 2 impose a reasonable restraint on each of the parties hereto in
light of the activities and business of the Corporation and/or its Affiliates on
the date of the execution of this Agreement.
2.3 International and National Long Distance. Certain of the parties
and TLD have entered into an Agreement and Release dated August 1, 1998 (the
"Related Agreements"), with respect to the mutual waiver of non-competition
covenants.
2.4 Subsequent Acquisitions. The parties agree that the acquisition
by a party or any of its Affiliates of an interest in any Person that would
cause such party to be in breach of Section 2.2 will not be a breach if (i) such
breach is waived by Purchaser and PRTA or (ii) immediately upon the consummation
of such acquisition such party or Affiliate provides the Corporation with a
written offer to sell the portion of the acquired Person relating to the
Restricted Activity to the Corporation for the same price as the party or
Affiliate paid for such competing business (including any cost of funds for
acquiring such competing business). If the
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Corporation, acting through the disinterested directors of the Board of
Directors of the Corporation, does not accept such offer within 120 days of
receiving the offer and if the Corporation has not arranged the financing
thereof within 180 days of receiving the offer, the acquiring party or its
Affiliate shall, except as provided in the following subsection, (A) promptly
and in any event within one year after the consummation of the acquisition of
such competing business dispose of such competing business to an unaffiliated
third party and (B) during the time prior to the consummation of such sale, not
act in any way that would be materially detrimental to the Corporation, such as
sharing any confidential information of the Corporation or promote, conduct
business or make investments in such competing business in a manner which would
materially strengthen, improve or expand the competing activities of such
competing business.
2.5 Confidentiality.
(a) (i) All non-public documentation and information of the
Purchaser Group (the "GTE Information") made available to the Corporation by the
Purchaser Group in the course of performing their obligations under, or in
connection with entering into, the Purchase Agreement and the documents to be
entered into in connection therewith, shall be treated as strictly confidential
by the Corporation, PRTA, their respective
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Affiliates and their personnel and any other Person who may have access to such
GTE Information, and such GTE Information shall not be disclosed to third
parties without Strategic Purchaser's express written consent.
(ii) All non-public documentation and information of the
Corporation, PRTA and their respective subsidiaries (the "Company Information")
obtained by the Purchaser Group in the course of their performing their
obligations under, or in connection with entering into, the Purchase Agreement
shall be treated as strictly confidential by the Purchaser Group, their
respective Affiliates and their personnel and any other Person who has had
access to such Company Information through the Corporation, and such Company
Information shall not be disclosed to third parties without the Corporation's
and PRTA's express written consent, and all such Company Information shall
continue to be owned by the Corporation; and
(b) In the event that any party or an Affiliate of any party
is requested pursuant to, or required by, applicable law, regulation or legal
process to disclose any GTE Information or Company Information, as the case may
be, the other party shall immediately be informed of the matter in advance. Only
that portion of the GTE Information or Company Information, as the case may be,
that is, upon the advice of
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counsel, legally required shall be furnished, and all reasonable efforts shall
be made to obtain reliable assurance (in the form of a court order or other
reasonable assurance) that, to the maximum extent possible under the
circumstances, confidential treatment will be accorded to such portion of GTE
Information or Company Information, as the case may be, required to be
disclosed.
(c) The provisions of Sections 2.5(a) and (b) shall not apply
to the provision by Popular, Inc. or its subsidiaries of GTE Information or
Company Information to regulatory authorities having jurisdiction over it or its
subsidiaries, to the extent required by law or regulation.
2.6 Independence of Covenants. Each of the covenants in this Section
2 shall be construed as an agreement independent of any other provision of this
Agreement or the Purchase Agreement, and the existence of any claim or cause of
action by any Restricted Party against the Corporation or any other party
hereto, whether predicated on this Agreement or the Purchase Agreement, or
otherwise, shall not constitute a defense to the enforcement by any other party
of such covenants. The covenants contained in this Section 2 shall not be
affected by any breach of any other provision hereof by any party hereto.
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3. Representations and Warranties.
3.1 Due Authorization, Etc.
(a) Each of the parties hereto represents and warrants to each
other that: (i) it has full right, power and authority to execute, deliver and
perform this Agreement; (ii) all actions necessary or required to be taken by or
on its part to execute, deliver and perform this Agreement have been duly
authorized and approved by all necessary or required corporate action and have
been validly taken; and (iii) this Agreement has been duly executed and
delivered by it and is a valid and binding agreement enforceable in accordance
with its terms, except to the extent that its enforceability may be subject to
applicable bankruptcy, reorganization, insolvency, moratorium and similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity.
(b) PRTA shall not be liable for any independent conduct of
other Puerto Rico Entities (excluding GDB) which violates the terms and
conditions hereof.
3.2 Covenants. Each party agrees to comply with the provisions of
this Agreement and agrees, to the extent within its power, to cause the
Corporation and its subsidiaries to comply with its obligations hereunder.
3.3 Purchaser. Any representation, warranty, covenant or agreement
contained in this Agreement made by
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Purchaser is also made by Strategic Purchaser on behalf of Purchaser.
4. General Provisions.
4.1 Notices. Any notice or other communication under this Agreement
shall be in writing and shall be considered given when delivered in person, sent
by telefax transmission or mailed by certified mail, return receipt requested,
to the parties at the following addresses or telefax numbers (or at such other
address or telefax number as a party may specify by notice to the others):
If to the Corporation at:
Telecomunicaciones de Puerto Rico, Inc.
1515 Xxxxxxxx X. Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxx, Xxxxxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: President
with a copy to:
GTE International Telecommunications Incorporated
0000 Xxxxx X'Xxxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Fares Xxxxxxx
Xxxxxx, Xxxxxx-Xxxxxxx, Colt & Mosle
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx
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If to PRTA, at:
Puerto Rico Telephone Authority
c/o Government Development Bank
for Puerto Rico
Minillas Xxxxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: President
with a copy to:
Xxxxxxxxxxx, Xxxxxx & Xxxxxxx
Banco Popular Center
Xxxxx 0000
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxx, Xxxxxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxxx
Akin, Gump, Strauss, Xxxxx & Xxxx L.L.P.
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Xx.
If to GTE, Purchaser or Strategic Purchaser, at:
GTE International Telecommunications Incorporated
0000 Xxxxx X'Xxxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Fares Xxxxxxx
with a copy to:
Xxxxxx, Xxxxxx-Xxxxxxx, Colt & Mosle
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx
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If to Popular, Inc., at:
000 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxx, Xxxxxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
with a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
4.2 No Waiver. No waiver of any provision of this Agreement in any
instance shall be, or for any purpose be deemed to be, a waiver of the right of
any party hereto to enforce strict compliance with the provisions hereof in any
subsequent instance.
4.3 Agreement to Perform Necessary Acts. Each party hereto and its
successors and assigns shall perform any further acts and execute and deliver
any documents or procure any court order which may reasonably be necessary to
carry out the provisions of this Agreement.
4.4 Modification. No provision of this Agreement may be amended,
modified or waived without the written approval of the parties hereto.
4.5 Counterparts. This Agreement may be executed in multiple
counterparts, subject to the execution of at least one of such counterparts by
each of the parties hereto.
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4.6 Severability. Every provision of this Agreement is intended to
be severable and if any term or all or part of any provision hereof is held by
judicial decision to be invalid, such invalidity shall not affect the validity
of the remainder of this Agreement.
4.7 Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and understanding with respect to the
subject matter hereof and supersedes any and all prior and contemporary
agreements and understandings. To the extent this Agreement and the Related
Agreements are inconsistent with any provisions of any other agreements entered
into among or between any of the parties hereto, the provisions of this
Agreement and the Related Agreements (as in effect on the date hereof) shall
govern.
4.8 Governing Law. This Agreement shall be construed and interpreted
in accordance with the laws of Puerto Rico.
4.9 Headings. The headings of the several articles and sections of
this Agreement are inserted solely for convenience of reference and are not a
part of and are not intended to govern, limit or aid in the construction of any
term or provision hereof.
4.10 Termination.
(a) This Agreement shall terminate on the first anniversary
after the date on which the Puerto Rico Entities no
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longer continue to own, in the aggregate, 5% of the outstanding Shares of the
Corporation, or, if earlier, on the tenth anniversary of this Agreement. The
provisions of Section 2.5 and this Section 4.10 shall survive for two (2) years
after termination of this Agreement.
(b) The obligations of any party other than the Corporation,
GTE, Strategic Purchaser and Purchaser and GDB shall terminate on the first
anniversary of the date on which such party ceases to own, directly or
indirectly, more than 2% of the outstanding Shares of the Corporation, except
that such party shall continue to be bound by the provisions of Section 2.5
until the first anniversary of the date on which the party ceases to own any
Shares of the Corporation.
4.11 Construction. When necessary, the masculine shall include the
feminine or neuter and the singular shall include the plural and vice versa.
4.12 Binding Effect; Successors and Assigns; Third-Party
Beneficiaries.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns; provided that no party may assign, delegate or transfer by merger or
otherwise any of its rights or obligations under this Agreement without the
written consent of the other parties hereto and compliance with
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applicable laws and regulations; provided, however, that such restriction shall
not prohibit either GTE or Popular, Inc. from engaging in a merger with any
third party; provided further, however, that PRTA may assign its rights
hereunder to GDB and that no such assignment shall have the effect of being a
delegation of duties or an assumption of any obligations of PRTA.
(b) Nothing in this Agreement shall be deemed to create any
right with respect to any Person that is not a party to this Agreement;
provided, that, any subsidiary of the Corporation may enforce the Corporation's
rights hereunder; and provided, further, that, so long as PRTA or any other
Puerto Rico Entity owns or controls at least 10% of the shares of capital stock
of the Corporation, PRTA or such Puerto Rico Entity shall be deemed third-party
beneficiaries of this Agreement and shall be entitled to enforce the provisions
hereof for the benefit of the Corporation, including but not limited to Section
2 hereof, directly, without first making demand upon the Corporation to do so.
4.13 Equitable Relief. Each of the parties hereto acknowledges that
the other parties will be irreparably damaged and will have no adequate remedy
at law in the event of a breach or threatened breach of obligations hereunder
and shall be entitled to such equitable and injunctive relief as may be
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available to restrain a violation of, or threatened violation of, or to
specifically enforce, this Agreement. Nothing herein shall be deemed to preclude
any party from pursuing any other remedies available under this Agreement or
otherwise to such party for such breach or threatened breach, including the
recovery of damages.
4.14 Fees; Expenses. The parties hereto shall pay all of their own
expenses relating to the transactions contemplated by this Agreement, including,
without limitation, the fees and expenses of their respective counsel, financial
advisers and accountants.
4.15 Submission to Jurisdiction; Venue.
(a) Any legal action or proceeding with respect to this
Agreement shall be brought in the United States District Court for the District
of Puerto Rico (by way of summary judgment in lieu of complaint if procedure so
permits) or, if such court lacks subject matter jurisdiction, in the courts of
Puerto Rico situated in San Xxxx. By execution and delivery of this Agreement,
each of the parties hereto hereby irrevocably accepts for itself and in respect
of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. Each of the parties hereto further irrevocably consents to the
service of process out of any of the aforementioned courts in any such action or
proceeding by the delivery of copies thereof
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by private courier or delivery service to such party at its address set forth in
Section 4.1, such service to become effective 5 days after sending such copies.
Nothing herein shall affect the right of any party hereto to serve process in
any other manner permitted by law.
(b) Each of the parties hereby irrevocably waives any
objection that it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Agreement brought in the courts referred to in clause (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been brought in
an inconvenient forum.
(c) Neither PRTA nor GDB are entitled to sovereign immunity in
connection with any dispute under this Agreement, including but not limited to
sovereign immunity from process, suit, jurisdiction, judgment and execution,
with the exception of immunity from prejudgment attachment. PRTA shall provide
to the Corporation an opinion of counsel reasonably satisfactory to the
Corporation as to such status.
4.16 Right to Enforce. This Agreement shall be enforceable by (i)
the Corporation, (ii) the Purchaser on behalf of the Purchaser Group, and (iii)
PRTA and GDB on behalf of the Puerto Rico Entities.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
TELECOMUNICACIONES DE PUERTO RICO,
INC.
By:
-----------------------------------------
Name:
Title:
GTE HOLDINGS (PUERTO RICO) LLC
By:
-----------------------------------------
Name:
Title:
By:
-----------------------------------------
Name:
Title:
GTE INTERNATIONAL
TELECOMMUNICATIONS INCORPORATED
By:
-----------------------------------------
Name:
Title:
By:
-----------------------------------------
Name:
Title:
GTE CORPORATION
By:
-----------------------------------------
Name:
Title:
By:
-----------------------------------------
Name:
Title:
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POPULAR, INC.
By:
-----------------------------------------
Name:
Title:
GOVERNMENT DEVELOPMENT BANK FOR
PUERTO RICO
By:
-----------------------------------------
Name:
Title:
PUERTO RICO TELEPHONE AUTHORITY
By:
-----------------------------------------
Name:
Title:
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SCHEDULE 1
PUERTO RICO
EXISTING OPERATIONS AND EXCLUDED ACTIVITIES
1. Provision of air to ground and ground to air communications services by
GTE Airfone(R) and other related services provided pursuant to any
agreement or alliance between GTE Airfone (or its successors and assigns)
and any airline.
2. Sales and services to U.S. government and U.S. governmental agencies,
including U.S. military authorities.
3. Technical, engineering, supply and other services, including network
monitoring, provided by subsidiaries, divisions and Affiliates of GTE
Corporation, including without limitation GTE Government Systems, GTE
Intelligent Network Systems, GTE Supply, GTE Laboratories and BCT.Telus
Communications, Inc.
4. Data processing, systems sales, installation and related services provided
by subsidiaries, divisions and Affiliates of GTE Corporation, including
without limitation GTE Network Systems, GTE Communications Corporation and
GTE Data Systems, excluding data transmission.
5. Provision of call delivery roaming services, roamer administration
services, fraud identification and control services, anti-cloning and
related services incidental to the operation of wireless communications
systems including without limitation by GTE Telecommunication Services
Incorporated, but not operating a wireless business.
6. Performance of obligations relating to cable television broadcasting and
content under contracts with Americast, DIRECTV and USSB as in effect on
the date of the Purchase Agreement.
7. Internet service offered by GTE's subsidiaries, divisions and Affiliates,
including without limitation GTE Internetworking and its Affiliates,
including dial up service (excluding dial up service for businesses and
residences located in Puerto Rico), Web-hosting, network security, virtual
private networks and other value-added services related to the Internet.
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8. Continuation, to the extent of scope and size on the date of the Stock
Purchase Agreement of CODETEL business activities in Puerto Rico.
9. Investment in, and provision of services to and by, a joint venture of the
Corporation (or PRTC), VNU World Directories and GTE Directories to
publish yellow pages and white pages directories.
10. Delivery of long distance calls to Puerto Rico by GTE Corporation and its
subsidiaries, divisions and Affiliates, including without limitation,
CODETEL (Dominican Republic), CANTV (Venezuela), CTI Holdings S.A.
(Argentina) and BC TEL and Quebec Telephone (Canada) and BCT.Telus
Communications, Inc.'s Affiliate Stentor.
11. Card services, including prepaid calling cards and affinity credit cards
provided by GTE Corporation, its subsidiaries, divisions and Affiliates
and not targeted specifically or exclusively to Puerto Rico.
12. Ownership of shares of the Corporation or its Affiliates in pension
trusts.
13. The rendering of any international or national long distance services in
order to meet the needs of a residential or business customer seeking
services from Puerto Rico or global network services so long as such
activities are initiated only upon the specific request of such customer
and are rendered exclusively to such customer and GTE Corporation has made
commercially reasonable efforts to encourage such customer to utilize the
Company.
14. Such other activities as may be mutually agreed by Purchaser and PRTA.
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