1
EXHIBIT 10.1
EXECUTION COPY
$300,000,000
IMPSAT FIBER NETWORKS, INC.
13 3/4% SENIOR NOTES DUE 2005
PLACEMENT AGREEMENT
February 11, 2000
2
February 11, 2000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
IMPSAT Fiber Networks, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to Xxxxxx Xxxxxxx & Co. Incorporated (the
"Placement Agent") $300,000,000 principal amount of its 13 3/4% Senior Notes due
2005 (the "Notes") to be issued pursuant to the provisions of an Indenture to be
dated as of February 16, 2000 (the "Indenture") among the Company, The Bank of
New York, as Trustee, Registrar and Paying Agent and Banque International a
Luxembourg S.A., as Paying Agent and Transfer Agent.
The Notes will be offered without being registered under the
Securities Act of 1933, as amended (the "Securities Act"), to qualified
institutional buyers (as defined in Rule 144A under the Securities Act) in
compliance with the exemption from registration provided by Rule 144A under the
Securities Act ("Rule 144A").
In connection with the sale of the Notes, the Company has prepared
a preliminary offering memorandum (the "Preliminary Memorandum") and will
prepare a final offering memorandum (the "Final Memorandum" and, with the
Preliminary Memorandum, each a "Memorandum") setting forth or including a
description of the terms of the Notes, the terms of the offering and a
description of the Company and its business.
The purchasers of the Notes and their direct and indirect
transferees will be entitled to the benefits of a Registration Rights Agreement
(the "Registration Rights Agreement") dated the date hereof (as defined below).
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, you that as of the date hereof:
(a) The Preliminary Memorandum does not contain and the Final
Memorandum, in the form used by the Placement Agent to confirm sales and
on the Closing Date, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, except that the representations and warranties set forth
in this Section 1(a) do not apply to statements or omissions in either
Memorandum based upon information relating to the Placement Agent
furnished to the Company in writing by the Placement Agent expressly for
use therein.
3
2
(b) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware, United States of America, has the corporate power and authority
to own its property and to conduct its business as described in each
Memorandum and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole. All of the shares of capital stock of the
Company's subsidiaries owned by the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are directly
owned by the Company, free and clear of all liens, encumbrances, equities
or claims.
(c) Each subsidiary of the Company has been duly incorporated
and is validly existing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in each Memorandum and is duly
qualified to transact business in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified
would not have a material adverse effect on such subsidiary. IMPSAT S.A.
("IMPSAT Argentina") is a wholly owned subsidiary of the Company, IMPSAT
S.A. ("IMPSAT Colombia") is a wholly owned subsidiary of the Company,
Impsatel del Ecuador S.A. ("IMPSAT Ecuador") is a wholly owned subsidiary
of the Company, IMPSAT S.A. de C.V. ("IMPSAT Mexico") is a 99.9% owned
subsidiary of the Company, Telecomunicaciones IMPSAT S.A. ("IMPSAT
Venezuela") is a wholly owned subsidiary of the Company and IMPSAT
Comunicacoes Ltda. ("IMPSAT Brazil") is a 99.9% owned subsidiary of the
Company.
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
(e) The Registration Rights Agreement has been duly authorized
and, when executed and delivered by the Company, will be a valid and
binding agreement of the Company enforceable in accordance with its
terms, except as (x) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally, (y) the availability of equitable remedies may be limited by
equitable principles of general applicability and (z) any rights to
indemnity and contribution may be limited by federal and state securities
laws and public policy considerations.
(f) The Notes have been duly authorized and, when executed,
authenticated and delivered in accordance with the terms of the Indenture
and paid for by the Placement Agent in accordance with the terms of this
Agreement, will (x) be valid and binding obligations of the Company
enforceable in accordance with their terms, except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws
4
3
affecting creditors' rights generally and (B) rights of acceleration, if
applicable, and the availability of equitable remedies may be limited by
equitable principles of general applicability and (y) be entitled to the
benefits of the Indenture and the Registration Rights Agreement.
(g) The Indenture has been duly authorized, executed and
delivered by the Company, and is a valid and binding agreement of the
Company, enforceable in accordance with its terms except as (x) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (y) rights of
acceleration, if applicable, and the availability of equitable remedies
may be limited by equitable principles of general applicability.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture, the Registration Rights Agreement, the Notes and the issuance,
sale and delivery of the Notes will not contravene any provision of
applicable law or the certificate of incorporation or bylaws of the
Company, as amended to date, or any agreement or other instrument binding
upon the Company or any of its subsidiaries or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over
the Company or any subsidiary of the Company, and no consent, approval,
authorization or order of, or qualification with, any governmental body
or agency is required for the performance by the Company of its
obligations under this Agreement, the Indenture, the Registration Rights
Agreement or the Notes or the issuance, sale and delivery of the Notes,
except (x) for any consents, approvals, authorizations, orders or
qualifications, the failure to obtain which would not have a material
adverse effect on the ability of the Company to perform its obligations
under this Agreement and (y) such as may be required by the securities or
Blue Sky laws of the various states in connection with the offer and sale
of the Notes.
(i) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Preliminary Memorandum.
(j) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or
to which any of the properties of the Company or any of its subsidiaries
is subject other than proceedings accurately described in all material
respects in each Memorandum and proceedings that would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole, or on the power or ability of the Company to perform its
obligations under this Agreement, the Indenture, the Registration Rights
Agreement or the Notes, to consummate the transactions contemplated by
each such agreement, or to apply the net proceeds of the
5
4
issuance of the Notes as described in the Final Memorandum under the
caption "Use of Proceeds."
(k) Each of the Company and its subsidiaries has all necessary
certificates, orders, permits, licenses, authorizations, consents and
approvals of and from, and has made all declarations and filings with,
all federal, state, local, foreign supranational, national, regional and
other governmental authorities and all courts and tribunals, to own,
lease, license and use its properties and assets and to conduct its
business in the manner described in the Final Memorandum, and neither the
Company nor any of its subsidiaries has received any notice of
proceedings relating to revocation or modification of any such
certificates, orders, permits, licenses, authorizations, consents or
approvals, nor is the Company or any of its subsidiaries in violation of,
or in default under, any federal, state, local, foreign supranational,
national or regional law, regulation, rule, decree, order or judgment
applicable to the Company or any of its subsidiaries the effect of which,
singly or in the aggregate, would have a material adverse effect on the
Company and its subsidiaries, taken as a whole, except as described in
the Final Memorandum.
(l) Neither the Company nor any affiliate (as defined in Rule
501(b) of Regulation D under the Securities Act, an "Affiliate") of the
Company has directly, or through any agent, (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any
security (as defined in the Securities Act) which is or will be
integrated with the sale of the Notes in a manner that would require the
registration under the Securities Act of the Notes or (ii) engaged in any
form of general solicitation or general advertising in connection with
the offering of the Notes (as those terms are used in Regulation D under
the Securities Act) or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act; provided, however,
that no such representation or warranty is given or made with respect to
the Placement Agent or any of its Affiliates.
(m) The Company is not, and after giving effect to the offering
and sale of the Notes and the application of the proceeds thereof as
described in the Final Memorandum under the caption "Use of Proceeds",
will not be an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
(n) It is not necessary in connection with the offer, sale and
delivery of the Notes to the Placement Agent in the manner contemplated
by this Agreement to register the Notes under the Securities Act or to
qualify the Indenture under the Trust Indenture Act of 1939, as amended.
(o) The Company and its subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to
6
5
conduct their respective businesses and (iii) are in compliance with all
terms and conditions of any such permit, license or approval, except
where such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals would
not, singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(p) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(q) None of the Company, its Affiliates or any person acting on
its or their behalf has engaged in any directed selling efforts (as that
term is defined in Regulation S under the Securities Act ("Regulation
S")) with respect to the Notes; provided, however, that no such
representation or warranty is given or made with respect to the Placement
Agent or any of its Affiliates.
(r) The Company has reviewed its operations and that of its
subsidiaries to evaluate the extent to which the business or operations
of the Company or any of its subsidiaries have been or will be affected
by the Year 2000 Problem (that is, any significant risk that computer
hardware or software applications used by the Company and its
subsidiaries during the time periods occurring after December 31, 1999,
function at least as effectively as in the case of dates or time periods
occurring prior to January 1, 2000); as a result of such review, nothing
has come to the attention of the Company as of the date hereof, after due
inquiry, that any Year 2000 Problems have occurred that (A) could have a
material adverse effect on the condition, financial or otherwise, or on
the earnings, business or operations of the Company and its subsidiaries,
taken as a whole, or result in any material loss or interference with the
business or operations of the Company and its subsidiaries, taken as a
whole or (B) are of a character required to be described or referred to
in the Final Memorandum which have not been accurately described in the
Final Memorandum.
(s) Subsequent to the respective dates as of which information
is given in the Final Memorandum, (1) the Company and its subsidiaries
have not incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction not in the ordinary
course of business; (2) the Company has not purchased any of its
outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock other than
ordinary and customary dividends; and (3) there has not been any material
change in the capital stock, short-term debt or
7
6
long-term debt of the Company and its consolidated subsidiaries, except
in each case as described in the Final Memorandum.
(t) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to
all personal property owned by them which is material to the business of
the Company and its subsidiaries, in each case free and clear of all
liens, encumbrances and defects except such as are described in the Final
Memorandum or such as do not materially affect the value of such property
and do not materially interfere with the use made and proposed to be made
of such property by the Company and its subsidiaries; and any real
property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not materially
interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries, in each case except as
described in the Final Memorandum.
(u) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, all material patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and trade
names currently employed by them in connection with the business now
operated by them, and, except as described in the Final Memorandum,
neither the Company nor any of its subsidiaries has received any notice
of infringement of or conflict with asserted rights of others with
respect to any of the foregoing which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(v) No material labor dispute with the employees of the Company
or any of its subsidiaries exists, except as described in or contemplated
by the Final Memorandum, or, to the knowledge of the Company, is
imminent; and the Company is not aware of any existing, threatened or
imminent labor disturbance by the employees of any of its principal
suppliers, manufacturers or contractors that could have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(w) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as the Company reasonably believes are prudent
and customary in the businesses in which they are engaged; neither the
Company nor any such subsidiary has been refused any insurance coverage
sought or applied for; and neither the Company nor any such subsidiary
has any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a
8
7
material adverse effect on the Company and its subsidiaries, taken as a
whole, except as described in the Final Memorandum.
(x) The Company and each of its subsidiaries keep accurate
books and records reflecting their assets and maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (1) transactions are executed in accordance with management's
general or specific authorizations; (2) transactions are recorded as
necessary to permit preparation of consolidated financial statements in
conformity with generally accepted accounting principles and to maintain
asset accountability; (3) access to assets is permitted only in
accordance with management's general or specific authorization; and (4)
the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(y) The Notes satisfy the requirements set forth in Rule
144A(d)(3) under the Securities Act.
2. Agreements to Sell and Purchase. The Company hereby agrees
to sell to the Placement Agent, and the Placement Agent, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase from the Company $300,000,000 principal
amount of Notes at a purchase price of 98.125% of the principal amount of the
Notes plus accrued interest, if any, to the Closing Date (the "Purchase Price").
The Company hereby agrees that, without the prior written consent
of Xxxxxx Xxxxxxx & Co. Incorporated, as Placement Agent, it will not, during
the period beginning on the date hereof and continuing to and including the
Closing Date, offer, sell, contract to sell or otherwise dispose of any debt of
the Company or warrants to purchase debt of the Company substantially similar to
the Notes (other than the sale of the Notes under this Agreement).
3. Terms of Offering. You have advised the Company that the
Placement Agent will make an offering of the Notes purchased by the Placement
Agent hereunder on the terms to be set forth in the Final Memorandum, as soon as
practicable after this Agreement is entered into as in your judgment is
advisable.
4. Payment and Delivery. Payment for the Notes shall be made
to the account of the Company in Federal or other funds immediately available in
New York City against delivery of such Notes for the account of the Placement
Agent at 10:00 a.m., New York city time, on February 16, 2000, or at such other
time on the same or such other date, not later than February 28, 2000, as shall
be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "Closing Date."
Certificates for the Notes shall be in definitive form or global
form, as specified by you, and registered in such names and in such
denominations as you shall request in writing
9
8
not later than one full business day prior to the Closing Date. The certificates
evidencing the Notes shall be delivered to you on the Closing Date for the
account of the Placement Agent, with any transfer taxes payable in connection
with the transfer of the Notes to the Placement Agent duly paid, against payment
of the Purchase Price therefor.
5. Conditions to the Placement Agent's Obligations. The
obligation of the Placement Agent under this Agreement to purchase the Notes
will be subject to the following conditions:
(a) Subsequent to the date of this Agreement and prior to the
Closing Date,
(i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations, of the Company and its subsidiaries, taken as a whole,
from that set forth in the Final Memorandum (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement) that, in the judgment of Xxxxxx Xxxxxxx & Co.
Incorporated, is material and adverse and that makes it, in the
judgment of Xxxxxx Xxxxxxx & Co. Incorporated, impracticable to
market the Notes on the terms and in the manner contemplated in
the Final Memorandum.
(b) You shall have received on the Closing Date a certificate,
dated the Closing Date and signed by an executive officer of the Company,
to the effect set forth in Section 5(a)(i) above and to the effect that
the representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date and that the
Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or
before the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
(c) The Placement Agent shall have received on the Closing Date
an opinion of Xxxxxx & Xxxxxx, special U.S. counsel for the Company,
dated the Closing Date, to the effect set forth in Exhibit A.
10
9
(d) The Placement Agent shall have received on the Closing Date
an opinion of Xxxxxxxxx & Xxxx, Argentine counsel for the Company and
IMPSAT Argentina, dated the Closing Date, to the effect set forth in
Exhibit B.
(e) The Placement Agent shall have received on the Closing Date
an opinion of S.E. Consultores Asociados Ltda., Colombian counsel for
IMPSAT Colombia, dated the Closing Date, to the effect set forth in
Exhibit C.
(f) The Placement Agent shall have received on the Closing Date
an opinion of Xxxxx Xxxxxxxxxx & Xxxxx, Ecuadoran counsel for IMPSAT
Ecuador, dated the Closing Date, to the effect set forth in Exhibit D.
(g) The Placement Agent shall have received on the Closing Date
an opinion of Xxxxxx, Ringe & Xxxxxx, Mexican counsel for IMPSAT Mexico,
dated the Closing Date, to the effect set forth in Exhibit E.
(h) The Placement Agent shall have received on the Closing Date
an opinion of Xxxxxxxxxx & Xxxxxx, Venezuelan counsel for IMPSAT
Venezuela, dated the Closing Date, to the effect set forth in Exhibit F.
(i) The Placement Agent shall have received on the Closing Date
an opinion of Xxxxxxxx Neto, Brazilian counsel for IMPSAT Brazil, dated
the Closing Date, to the effect set forth in Exhibit G.
(j) The Placement Agent shall have received on the Closing Date
an opinion of Xxxxxx & Xxxxxxx, United States regulatory counsel for the
Company, dated the Closing Date, to the effect set forth in Exhibit H.
Each of the opinions referred to in clauses (c) through (j) shall
be rendered to the Placement Agent at the request of the Company and
shall so state therein.
(k) The Placement Agent shall have received on the Closing Date
an opinion of Shearman & Sterling, United States counsel for the
Placement Agent, dated the Closing Date, with respect to such matters as
you may reasonably request.
(l) The Placement Agent shall have received, on each of the
date hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Placement Agent, from Deloitte & Touche LLP, independent public
accountants for the Company, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Final Memorandum; provided that
the letter delivered on the Closing Date shall use a "cut-off date" not
earlier than the date hereof.
11
10
(m) You shall have received such other documents and
certificates as are reasonably requested by you and your counsel.
6. Covenants of the Company. In further consideration of the
agreements of the Placement Agent contained in this Agreement, the Company
covenants with the Placement Agent as follows:
(a) To furnish to you in New York City, without charge, prior
to 10:00 a.m. New York City time on the business day next succeeding the
date of this Agreement and during the period mentioned in Section 6(c)
below, as many copies of the Final Memorandum and any supplements and
amendments thereto as you may reasonably request.
(b) Before amending or supplementing either Memorandum, to
furnish to you a copy of each such proposed amendment or supplement and
not to use any such proposed amendment or supplement to which you
reasonably object.
(c) If, during such period after the date hereof and prior to
the date on which all of the Notes shall have been sold by the Placement
Agent, any event shall occur or condition exist as a result of which it
is necessary in your judgment to amend or supplement the Final Memorandum
in order to make the statements therein, in the light of the
circumstances when such Memorandum is delivered to a purchaser, not
misleading, or if, in the opinion of United States counsel to the
Placement Agent it is necessary to amend or supplement such Memorandum to
comply with applicable law, forthwith to prepare and furnish, at its own
expense, to the Placement Agent, either amendments or supplements to such
Memorandum so that the statements in such Memorandum as so amended or
supplemented will not, in the light of the circumstances when such
Memorandum is delivered to a purchaser, be misleading or so that such
Memorandum, as so amended or supplemented, will comply with applicable
law.
(d) To endeavor to qualify the Notes for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) Whether or not any sale of the Notes is consummated, to pay
all expenses incident to the performance of its obligations under this
Agreement, including: (i) the preparation of each Memorandum and all
amendments and supplements thereto, (ii) the preparation, issuance and
delivery of the Notes, (iii) the fees and disbursements of the Company's
counsel and accountants and the Trustee and its counsel, (iv) the
qualification of such Notes under securities or Blue Sky laws in
accordance with the provisions of Section 5(d), including filing fees and
the fees and disbursements of counsel for the Placement Agent in
connection therewith and in connection with the preparation of any Blue
Sky or legal investment memoranda, (v) the printing and delivery to the
Placement
12
11
Agent in quantities as hereinabove stated of copies of the Memorandum and
any amendments or supplements thereto, (vi) any fees charged by rating
agencies for the rating of the Notes, (vii) all document production
charges and expenses of counsel to the Placement Agent (but not including
their fees for professional services) in connection with the preparation
of this Agreement, (viii) the fees and expenses, if any, incurred in
connection with the admission of the Notes for trading in any appropriate
market system and (ix) any expenses incurred by the Company in connection
with a "road show" presentation to potential investors.
(f) Neither the Company nor any Affiliate will sell, offer for
sale or solicit offers to buy or otherwise negotiate in respect of any
security (as defined in the Securities Act) which could be integrated
with the sale of the Notes in a manner which would require the
registration under the Securities Act of the Notes.
(g) Not to solicit any offer to buy or offer or sell the Notes
by means of any form of general solicitation or general advertising (as
those terms are used in Regulation D under the Securities Act) or in any
manner involving a public offering within the meaning of Section 4(2) of
the Securities Act.
(h) While any of the Notes remain outstanding, to make
available, upon request, to any seller of such Notes the information
specified in Rule 144A(d)(4) under the Securities Act, unless the Company
is then subject to Section 13 or 15(d) of the Exchange Act.
(i) To use its best efforts to permit the Notes to be
designated PORTAL securities in accordance with the rules and regulations
adopted by the National Association of Securities Dealers, Inc. relating
to trading in the PORTAL Market.
(j) None of the Company, its Affiliates or any person acting on
its or their behalf (other than the Placement Agent) will engage in any
directed selling efforts (as that term is defined in Regulation S) with
respect to the Notes, and the Company and its Affiliates and each person
acting on its or their behalf (other than the Placement Agent) will not
engage in any selling efforts pursuant to Regulation S.
(k) For the sole benefit of the Placement Agent:
(1) prior to the consummation of the Exchange Offer (as defined
in the Registration Rights Agreement) or the effectiveness of a Shelf
Registration Statement if, in the reasonable judgment of the Placement
Agent, the Placement Agent or any of its affiliates (as such term is
defined in the rules and regulations under the Securities Act) is
required to deliver an offering memorandum in connection with sales of,
or market-making activities with respect to, the Notes or the Exchange
Securities (as defined in the Registration Rights Agreement), (A) to
periodically amend or supplement the Final
13
12
Memorandum so that the information contained in the Final Memorandum
complies with the requirements of Rule 144A of the Securities Act, (B) to
amend or supplement the Final Memorandum when necessary to reflect any
material changes in the information provided therein so that the Final
Memorandum will not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in light of the circumstances existing as of the date the Final
Memorandum is so delivered, not misleading and (C) to provide the
Placement Agent with copies of each such amended or supplemental Final
Memorandum, as the Placement Agent may reasonably request;
(2) following the consummation of the Exchange Offer or the
effectiveness of a Shelf Registration Statement and for so long as the
Notes or, the Exchange Securities are outstanding if, in the reasonable
judgment of the Placement Agent, the Placement Agent or any of its
affiliates (as such term is defined in the rules and regulations under
the Securities Act) is required to deliver a prospectus in connection
with sales of, or market-making activities with respect to the Notes or
the Exchange Securities, (A) to periodically amend the applicable
registration statement so that the information contained therein complies
with the requirements of Section 10(a) of the Securities Act, (B) if
requested by the Placement Agent, within 45 days following the end of the
Company's most recent fiscal quarter, file a supplement to the prospectus
included in the applicable registration statement which sets forth the
financial results of the Company for the previous quarter, (C) to amend
the applicable registration statement or supplement the related
prospectus or the documents incorporated therein when necessary to
reflect any material changes in the information provided therein so that
the registration statement and the prospectus will not contain any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in light of the circumstances
existing as of the date the prospectus is so delivered, not misleading
and (D) to provide the Placement Agent with copies of each such amendment
or supplement as the Placement Agent may reasonably request;
(3) notwithstanding clauses (1) and (2) above, (A) prior to
amending the Final Memorandum or to filing any post-effective amendment
to any registration statement or to supplementing any related prospectus,
to furnish to the Placement Agent and its counsel, copies of all such
documents proposed to be amended, filed or supplemented, and (B) it will
not issue any amendment to the Final Memorandum, any post-effective
amendment to a registration statement or any supplement to a prospectus
to which the Placement Agent or its counsel shall reasonably object;
(4) it shall notify the Placement Agent and its counsel and (if
requested by any such person) confirm such advice in writing, (A) when
any amendment to the Final Memorandum has been issued, when any
prospectus supplement or amendment or post-effective amendment has been
filed, and, with respect to any post-effective amendment, when the same
has become effective, (B) of any request by the SEC for any
post-
14
13
effective amendment or supplement to a registration statement, any
supplement or amendment to a prospectus or for additional information,
(C) the issuance by the SEC of any stop order suspending the
effectiveness of a registration statement or the initiation of any
proceedings for that purpose, (D) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Notes or the Exchange Securities for sale in any jurisdiction or the
initiation or threatening of any proceedings for such purpose and (E) of
the happening of any event which makes any statement made in the Final
Memorandum, a registration statement, a prospectus or any amendment or
supplement thereto untrue or which requires the making of any change in
the Final Memorandum, a registration statement, a prospectus or any
amendment or supplement thereto, in order to make the statements therein
not misleading;
(5) it consents to the use of the Final Memorandum and any
prospectus referred to in this paragraph (k) or any amendment or
supplement thereto, by the Placement Agent in connection with the
offering and sale of the Notes or Exchange Securities, as the case may
be;
(6) it will comply with the provisions of this paragraph (k) at
its own expense and will reimburse the Placement Agent for its expenses
associated with this paragraph (k) (including fees of counsel); and
(7) it expressly acknowledges that the indemnification and
contribution provisions of Section 8 of this Agreement shall be
specifically applicable and relate to each offering memorandum,
registration statement, prospectus, amendment or supplement referred to
in this paragraph (k).
(l) to make or cause to be made an application to list the
Notes on the Luxembourg Stock Exchange within 45 days after the Closing
Date and thereafter to use best efforts to obtain such listing.
7. Offering of Notes; Restrictions on Transfer. The Placement
Agent represents and warrants that it is a qualified institutional buyer as
defined in Rule 144A under the Securities Act (a "QIB"). The Placement Agent
agrees with the Company that (i) it will not solicit offers for, or offer or
sell, the Notes by any form of general solicitation or general advertising (as
those terms are used in Regulation D under the Securities Act) or in any manner
involving a public offering within the meaning of Section 4(2) of the Securities
Act and (ii) it will solicit offers for the Notes only from, and will offer the
Notes only to, persons that it reasonably believes to be QIBs that, in
purchasing the Notes are deemed to have represented and agreed as provided in
the Final Memorandum under the caption "Transfer Restrictions."
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless the Placement Agent, and each person, if any, who
controls the Placement Agent within the meaning of either Section 15 of the
Securities Act or Section 20 of the
15
14
Exchange Act, or is under common control with, or is controlled by, the
Placement Agent, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by the Placement Agent or any such controlling or affiliated
person in connection with defending or investigating any such action or claim)
caused by any untrue statement or alleged untrue statement of a material fact
contained in either Memorandum (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact necessary to make the
statements therein in light of the circumstances under which they were made not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to the Placement Agent furnished to the
Company in writing by the Placement Agent through you expressly for use therein.
(b) The Placement Agent agrees to indemnify and hold harmless
the Company and its directors, officers and each person, if any, who controls
the Company within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Company to the Placement Agent, but only with reference to information
relating to such Placement Agent furnished to the Company in writing by the
Placement Agent through you expressly for use in either Memorandum or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
reasonably satisfactory to the Placement Agent, in the case of parties
indemnified pursuant to Section 8(a) above and reasonably satisfactory to the
Company, in the case of parties indemnified pursuant to Section 8(b) above. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the
16
15
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section
8(a) or 8(b) of this Section 8 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, on the one hand, and the Placement
Agent, on the other hand, from the offering of such Notes or (ii) if the
allocation provided by clause 8(a)(i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause 8(a)(i) above but also the relative fault of the Company,
on the one hand, and the Placement Agent, on the other hand, in connection with
the statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company, on the one hand, and the Placement
Agent, on the other hand, in connection with the offering of such Notes shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of such Notes (before deducting expenses) received by the Company and
the total discounts and commissions received by the Placement Agent in respect
thereof bear to the aggregate offering price of such Notes. The relative fault
of the Company, on the one hand, and of the Placement Agent, on the other hand,
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or by
the Placement Agent and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The Company and the Placement Agent agree that it would not
be just or equitable if contribution pursuant to this Section 8 were determined
by pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to
17
16
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 8, the Placement Agent shall not be required to contribute any amount in
excess of the amount by which the total price at which the Notes resold by it in
the initial placement of such Notes were offered to investors exceeds the amount
of any damages that the Placement Agent has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
indemnity and contribution provisions contained in this Section 8 and the
representations and warranties and other statements of the Company contained in
this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of the Placement Agent or any person controlling the Placement Agent or
by or on behalf of the Company or its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Notes. The remedies provided for in this Section 8 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
9. Termination. This Agreement shall be subject to termination
by notice given by you to the Company, if (a) after the execution and delivery
of this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange or the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses 9(a)(i) through 9(a)(iv), such event, singly or
together with any other such event makes it, in your judgment, impracticable to
market the Notes on the terms and in the manner contemplated in the Final
Memorandum.
10. Effectiveness; Payment of Expenses Upon Termination. This
Agreement shall become effective upon the execution and delivery hereof by the
parties hereto.
If this Agreement shall be terminated by the Placement Agent
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Placement Agent for all out-of-pocket
expenses (including the fees and disbursements of their counsel) reasonably
incurred by the Placement Agent in connection with this Agreement or the
offering contemplated hereunder.
18
17
11. Notices. All notices and other communications under this
Agreement shall be in writing and mailed, delivered or sent by facsimile
transmission to: if sent to the Placement Agent, Xxxxxx Xxxxxxx & Co.
Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: High Yield New
Issues Group, facsimile number (000) 000-0000 and if sent to the Company, to
Xxxxxxx Xxxxxx 000, 0000 Xxxxxx Xxxxx, Xxxxxxxxx, attention: Chief Financial
Officer, facsimile number 000 (000) 000 0000.
12. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
14. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
19
Please confirm your agreement to the foregoing by signing in the
space provided below for that purpose and returning to us a copy hereof,
whereupon this Agreement shall constitute a binding agreement between us.
Very truly yours,
IMPSAT FIBER NETWORKS, INC.
By /s/ XXXXXXX X. XXXXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President and Chief Executive
Officer
By /s/ XXXXXXXXX XXXXX
------------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Chief Financial Officer
Accepted as of the date hereof
XXXXXX XXXXXXX & CO. INCORPORATED
By: Xxxxxx Xxxxxxx & Co. Incorporated
By /s/ XXXX X. XXXXX
-------------------
Name: Xxxx X. Xxxxx
Title: Vice President
20
EXHIBIT A
Opinion of Xxxxxx & Xxxxxx
(A) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of Delaware, and
has the corporate power and authority to own its property and to conduct its
business as described in the Final Memorandum (references herein to the Final
Memorandum being taken to mean the same, as amended or supplemented);
(B) the Placement Agreement has been duly authorized, executed
and delivered by the Company;
(C) the Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms;
(D) the Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms;
(E) the Notes have been duly authorized by the Company, and
when executed, authenticated and delivered in accordance with the terms of the
Indenture and paid for in accordance with the terms of the Placement Agreement,
will constitute valid and binding obligations of the Company enforceable against
the Company in accordance with their terms, and will be entitled to the benefits
of the Indenture and the Registration Rights Agreement;
(F) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Placement Agreement,
the Indenture, the Registration Rights Agreement, the Notes, and the issuance,
sale and delivery of the Notes, will not result in a breach or violation of any
of the terms or provisions of, or constitute a default under, (i) the
certificate of incorporation or bylaws of the Company, as amended to date, (ii)
to such counsel's knowledge, any statute, rule, regulation or order of general
applicability of any United States federal, New York or Delaware governmental
agency, body or court, (iii) to such counsel's knowledge, any judgment, decree
or order of any United States federal, New York or Delaware governmental agency,
body or court or (iv) any of the agreements or instruments listed in Schedule 1
hereto;
(G) no consent, approval, authorization or order of, or
qualification with any court or governmental agency or body of the United
States, New York or Delaware is required for the performance by the Company of
its obligations under the Placement Agreement, the Indenture, the Registration
Rights Agreement, the Notes, or the issuance, sale and delivery of the
21
A-2
Notes, except in each case as may be required by the securities or Blue Sky laws
of the various states in connection with the offer and sale of the Notes;
(H) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened in the United States to which
the Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject other than
proceedings fairly summarized in the Final Memorandum and proceedings which such
counsel believes are not likely to have a material adverse effect on the Company
and its subsidiaries, taken as a whole, or on the power or ability of the
Company to perform its obligations under the Placement Agreement, the Indenture,
the Registration Rights Agreement or the Notes or to consummate the transactions
contemplated by the Placement Agreement, the Indenture, the Registration Rights
Agreement and the Notes;
(I) the Company is not, and after giving effect to the offering
and sale of the Notes and the application of the proceeds thereof as described
in the Final Memorandum under the caption "Use of Proceeds", will not be an
"investment company" within the meaning of the United States Investment Company
Act of 1940, as amended (the "Investment Company Act"), and the offer and sale
of the Notes in the manner contemplated by the Placement Agreement does not
require registration of the Company as an "investment company" under the
Investment Company Act;
(J) the statements set forth in the Final Memorandum under the
captions "Description of the Notes", "Private Placement", "Description of Our
Indebtedness", and "Transfer Restrictions" insofar as such statements constitute
a summary of the legal matters and documents referred to therein, accurately
summarize such matters and documents in all material respects;
(K) the discussion set forth in the Final Memorandum, under the
caption "Certain U.S. Federal Income Tax Considerations" to the extent such
discussion constitutes matters of law or legal conclusions, accurately describes
the material United States federal income tax consequences of an investment in
the Notes;
(L) such counsel believes that (except for financial statements
and other financial data as to which such counsel need not express any belief)
the Final Memorandum when issued did not, and as of the date such opinion is
delivered does not, contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(M) based upon the representations, warranties, and agreements
of the Company in the Placement Agreement and of the Placement Agent in the
Placement Agreement, it is not necessary in connection with the offer, sale and
delivery of the Notes to the Placement Agent under the Placement Agreement or in
connection with the initial resale of such Notes by
22
A-3
the Placement Agent in accordance with the Placement Agreement to register the
Notes under the Securities Act of 1933, it being understood that no opinion is
expressed as to any subsequent resale of any Notes; and
With respect to paragraph (L) above, counsel may state that their
opinion and belief are based upon their participation in the preparation of the
Final Memorandum (and any amendments or supplements thereto) and review and
discussion of the contents thereof, but are without independent check or
verification except with respect to paragraphs (J) and (K) above.
23
EXHIBIT B
Opinion of Xxxxxxxxx & Xxxx
(A) IMPSAT Argentina has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the Republic of
Argentina, has the corporate power and authority to own its property and to
conduct its business as described in the Final Memorandum and is duly qualified
to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries taken as a whole;
(B) all of the shares of capital stock of IMPSAT Argentina
owned by the Company have been duly and validly authorized and issued and are
fully paid and non-assessable and are directly owned by the Company, free and
clear of all liens, encumbrances, equities or claims;
(C) IMPSAT Argentina has all necessary certificates, orders,
permits, licenses, authorizations, consents and approvals of and from, and has
made all declarations and filings with, all Argentine governmental authorities,
courts and tribunals, to own, lease, license and use its properties and assets
and to conduct its business in the manner described in the Final Memorandum, and
IMPSAT Argentina has not received any notice of proceedings relating to
revocation or modification of any such certificates, orders, permits, licenses,
authorizations, consents or approvals, nor is IMPSAT Argentina in violation of,
or in default under, any federal, state, local, foreign supranational, national
or regional law, regulation, rule, decree, order or judgment applicable to
IMPSAT Argentina the effect of which, singly or in the aggregate, would have a
material adverse effect on the prospects, condition, financial or otherwise, or
in the earnings, business or operations of the Company and its subsidiaries,
taken as a whole, except as described in the Final Memorandum;
(D) the statements in the Final Memorandum under the caption
"Risk Factors -- We face regulatory risks and uncertainty with respect to local
laws and regulations", "Business -- Legal Matters" and "Business -- Description
of Country Operations -- IMPSAT Argentina" in each case insofar as such
statements constitute summaries of the Argentine legal matters, documents or
proceedings referred to therein, are accurate in all material respects and
fairly summarize all matters referred to therein;
(E) There are no restrictions (legal, contractual or otherwise)
on the ability IMPSAT Argentina to declare and pay any dividends or make any
payment or transfer of property or assets to its stockholders other than those
referred to in the Final Memorandum (including, without limitation, the
description of withholding taxes contained therein) and any applicable
creditors' rights under Argentine law, and such restrictions as would not have a
material adverse effect on the prospects, condition, financial or otherwise, or
in the earnings,
24
B-2
business or operations of the Company and its subsidiaries, taken as a whole;
and such descriptions, if any, fairly summarize such restrictions, provided
however that such dividends may be delcared (i) out of positive retained
earnings determined in accordance with local generally accepted accounting
principles as reflected in duly approved financial statements of IMPSAT
Argentina and (ii) pursuant to Article 27 of IMPSAT Argentina's by-laws; and
(F) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened in Argentina to which IMPSAT
Argentina is a party or to which any of the properties of IMPSAT Argentina is
subject other than proceedings fairly summarized in the Final Memorandum and
proceedings which such counsel believes are not likely to have a material
adverse effect on the Company and its subsidiaries, taken as a whole, or on the
power or ability of the Company to perform its obligations under this Agreement
or to consummate the transactions contemplated by this Agreement.
25
EXHIBIT C
Opinion of S.E. Consultores Asociados Ltda.
(A) IMPSAT Colombia has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the Republic of
Colombia, has the corporate power and authority to own its property and to
conduct its business as described in the Final Memorandum and is duly qualified
to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries taken as a whole;
(B) all of the shares of capital stock of IMPSAT Colombia owned
by the Company have been duly and validly authorized and issued and are fully
paid and non-assessable and are directly owned by the Company, free and clear of
all liens, encumbrances, equities or claims;
(C) IMPSAT Colombia has all necessary certificates, orders,
permits, licenses, authorizations, consents and approvals of and from, and has
made all declarations and filings with, all Colombian governmental authorities,
courts and tribunals, to own, lease, license and use its properties and assets
and to conduct its business in the manner described in the Final Memorandum, and
IMPSAT Colombia has not received any notice of proceedings relating to
revocation or modification of any such certificates, orders, permits, licenses,
authorizations, consents or approvals, nor is IMPSAT Colombia in violation of,
or in default under, any federal, state, local, foreign supranational, national
or regional law, regulation, rule, decree, order or judgment applicable to
IMPSAT Colombia the effect of which, singly or in the aggregate, would have a
material adverse effect on the prospects, condition, financial or otherwise, or
in the earnings, business or operations of the Company and its subsidiaries,
taken as a whole, except as described in the Final Memorandum;
(D) the statements in the Final Memorandum under the caption
"Business -- Description of Country Operations - IMPSAT Colombia" insofar as
such statements constitute summaries of the Colombian legal matters, documents
or proceedings referred to therein, are accurate in all material respects and
fairly summarize all matters referred to therein;
(E) there are no restrictions (legal, contractual or otherwise)
on the ability of IMPSAT Colombia to declare and pay any dividends or make any
payment or transfer of property or assets to its stockholders other than those
referred to in the Final Memorandum (including, without limitation the
description of withholding taxes described therein) and such restrictions as
would not have a material adverse effect on the prospects, condition, financial
or otherwise, or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole; and such descriptions, if any, fairly summarize
such restrictions; and
26
C-2
(F) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened in Colombia to which IMPSAT
Colombia is a party or to which any of the properties of IMPSAT Colombia is
subject other than proceedings fairly summarized in the Final Memorandum and
proceedings which such counsel believes are not likely to have a material
adverse effect on the Company and its subsidiaries, taken as a whole, or on the
power or ability of the Company to perform its obligations under this Agreement
or to consummate the transactions contemplated by this Agreement.
27
EXHIBIT D
Opinion of Xxxxx Xxxxxxxxxx & Xxxxx
(A) IMPSAT Ecuador has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the Republic of
Ecuador, has the corporate power and authority to own its property and to
conduct its business as described in the Final Memorandum dated February 11,
2000 (the "Final Memorandum") and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries taken as a whole;
(B) all of the shares of capital stock of IMPSAT Ecuador owned
by the Company have been duly and validly authorized and issued and are fully
paid and non-assessable and are directly owned by the Company, free and clear of
all liens, encumbrances, equities or claims;
(C) IMPSAT Ecuador has all necessary certificates, orders,
permits, licenses, authorizations, consents and approvals of and from, and has
made all declarations and filings with, all Ecuadoran governmental authorities,
courts and tribunals, to own, lease, license and use its properties and assets
and to conduct its business in the manner described in the Final Memorandum, and
IMPSAT Ecuador has not received any notice of proceedings relating to revocation
or modification of any such certificates, orders, permits, licenses,
authorizations, consents or approvals, nor is IMPSAT Ecuador in violation of, or
in default under, any federal, state, local, foreign supranational, national or
regional law, regulation, rule, decree, order or judgment applicable to IMPSAT
Ecuador the effect of which, singly or in the aggregate, would have a material
adverse effect on the prospects, condition, financial or otherwise, or in the
earnings, business or operations of the Company and its subsidiaries, taken as a
whole, except as described in the Final Memorandum;
(D) the statements in the Final Memorandum under the caption
"Business -- Description of Country Operations -- IMPSAT Ecuador" insofar as
such statements constitute summaries of the legal matters of Ecuador, documents
or proceedings referred to therein, are accurate in all material respects and
fairly summarize all matters referred to therein;
(E) There are no restrictions (legal, contractual or otherwise)
on the ability of IMPSAT Ecuador to declare and pay any dividends or make any
payment or transfer of property or assets to its stockholders other than those
referred to in the Final Memorandum (including, without limitation, the
description of withholding taxes contained therein) and such restrictions as
would not have a material adverse effect on the prospects, condition, financial
or otherwise, or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole; and such descriptions, if any, fairly summarize
such restrictions; and
28
D-2
(F) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened in Ecuador to which IMPSAT
Ecuador is a party or to which any of the properties of IMPSAT Ecuador is
subject other than proceedings fairly summarized in the Final Memorandum and
proceedings which such counsel believes are not likely to have a material
adverse effect on the Company and its subsidiaries, taken as a whole, or on the
power or ability of the Company to perform its obligations under this Agreement
or to consummate the transactions contemplated by this Agreement.
29
EXHIBIT E
Opinion of Xxxxxx, Ringe & Xxxxxx
(A) IMPSAT Mexico has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its organization, has the corporate power and authority to own its property and
to conduct its business as described in the Final Memorandum under the caption
"Business -- Description of Country Operations -- IMPSAT Mexico" and is duly
qualified to transact business and is in good standing in each Mexican
jurisdiction in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material adverse effect
on the Company taken as a whole;
(B) all of the shares of capital stock of IMPSAT Mexico owned
by the Company have been duly and validly authorized and issued and are fully
paid and non-assessable and are directly owned by the Company, free and clear of
all liens, encumbrances, equities or claims;
(C) IMPSAT Mexico has all necessary certificates, orders,
permits, licenses, authorizations, consents and approvals of and from, and has
made all declarations and filings with, all Mexican governmental authorities,
all self-regulatory organizations and all courts and tribunals, to own, lease,
license and use its properties and assets and to conduct its business in the
manner described in the Final Memorandum under the caption "Business --
Description of Country Operations -- IMPSAT Mexico" and IMPSAT Mexico has not
received any notice of proceedings relating to revocation or modification of any
such certificates, orders, permits, licenses, authorizations, consents or
approvals, nor is IMPSAT Mexico in violation of, or in default under, any
federal, state, local, foreign supranational, national or regional law,
regulation, rule, decree, order or judgment applicable to IMPSAT Mexico the
effect of which, singly or in the aggregate, would have a material adverse
effect on the prospects, condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a whole,
except as described in the Final Memorandum;
(D) the statements in the Final Memorandum under the caption
"Business -- Description of Country Operations -- IMPSAT Mexico" insofar as such
statements constitute summaries of the Mexican legal matters, documents or
proceedings referred to therein, are accurate in all material respects and
fairly summarize all matters referred to therein;
(E) There are no restrictions (legal, contractual or otherwise)
on the ability of IMPSAT Mexico to declare and pay any dividends or make any
payment or transfer of property or assets to its stockholders other than those
referred to in the Final Memorandum (including without limitation, the
description of withholding taxes contained therein) and such restrictions as
would not have a material adverse effect on the prospects, condition, financial
or otherwise, or
30
E-2
in the earnings, business or operations of the Company and its subsidiaries,
taken as a whole; and such descriptions, if any, fairly summarize such
restrictions; and
(F) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened in Mexico to which IMPSAT
Mexico is a party or to which any of the properties of IMPSAT Mexico is subject
other than proceedings fairly summarized in the Final Memorandum and proceedings
which such counsel believes are not likely to have a material adverse effect on
the Company and its subsidiaries, taken as a whole, or on the power or ability
of the Company to perform its obligations under this Agreement or to consummate
the transactions contemplated by this Agreement.
31
EXHIBIT F
Opinion of Xxxxxxxxxx & Xxxxxx
(A) IMPSAT Venezuela has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its organization, has the corporate power and authority to own its property and
to conduct its business as described in the Final Memorandum and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries taken as a whole;
(B) all of the shares of capital stock of IMPSAT Venezuela
owned by the Company have been duly and validly authorized and issued and are
fully paid and non-assessable and are directly owned by the Company, free and
clear of all liens, encumbrances, equities or claims;
(C) IMPSAT Venezuela has no subsidiaries;
(D) IMPSAT Venezuela, to our better knowledge, has all
necessary certificates, orders, permits, licenses, authorizations, consents and
approvals of and from, and has made all declarations and filings with, all
Venezuelan governmental authorities, all self-regulatory organizations and all
courts and tribunals, to own, lease, license and use its properties and assets
and to conduct its business in the manner described in the Final Memorandum. Up
to this date, IMPSAT Venezuela has not received any notice of proceedings
relating to revocation or modification of any such certificates, orders,
permits, licenses, authorizations, consents or approvals, nor is IMPSAT
Venezuela in violation of, or in default under, any federal, state, local,
foreign supranational, national or regional law, regulation, rule, decree, order
or judgment applicable to IMPSAT Venezuela the effect of which, singly or in the
aggregate, would have a material adverse effect on the prospects, condition,
financial or otherwise, or in the earnings, business or operations of the
Company, taken as a whole, except as described in the Final Memorandum;
(E) the statements in the Final Memorandum under the captions
(including, without limitation, the description of withholding taxes contained
therein) "Business -- Description of Country Operations -- IMPSAT Venezuela"
insofar as such statements constitute summaries of the Venezuelan legal matters,
documents or proceedings referred to therein, are accurate in all material
respects and fairly summarize all matters referred to therein;
(F) There are no restrictions (legal, contractual or otherwise)
on the ability of IMPSAT Venezuela to declare and pay any dividends or make any
payment or transfer of property or assets to its stockholders other than those
referred to in the Final Memorandum (including without limitation the
description of withholding taxes contained therein) and such
32
F-2
restrictions as would not have a material adverse effect on the prospects,
condition, financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole; and such descriptions, if
any, fairly summarize such restrictions; and
(G) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened in Venezuela to which IMPSAT
Venezuela is a party or to which any of the properties of IMPSAT Venezuela is
subject other than proceedings fairly summarized in the Final Memorandum and
proceedings which such counsel believes are not likely to have a material
adverse effect on the Company and its subsidiaries, taken as a whole, or on the
power or ability of the Company to perform its obligations under this Agreement
or to consummate the transactions contemplated by this Agreement.
33
EXHIBIT G
Opinion of Xxxxxxxx Neto
(A) IMPSAT Comunicacoes Ltda. ("IMPSAT Brazil") has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of Brazil, has the corporate power and authority to own its property and to
conduct its business as described in the Final Memorandum and is duly qualified
to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries as a whole;
(B) all of the shares of capital stock of IMPSAT Brazil owned
by the Company have been duly and validly authorized and issued and are fully
paid and non-assessable and are directly owned by the Company, free and clear of
all liens, encumbrances, equities or claims;
(C) IMPSAT Brazil has all necessary certificates, orders,
permits, licenses, authorizations, consents and approvals of and from, and has
made all declarations and filings with, all Brazilian governmental authorities,
courts and tribunals, to own, lease, license and use its properties and assets
and to conduct its business in the manner described in the Final Memorandum, and
IMPSAT Brazil has not received any notice of proceedings relating to revocation
or modification of any such certificates, orders, permits, licenses,
authorizations, consents or approvals, nor is IMPSAT Brazil in violation of, or
in default under, any federal, state, local, foreign supranational, national or
regional law, regulation, rule, decree, order or judgment applicable to IMPSAT
Brazil the effect of which, singly or in the aggregate, would have a material
adverse effect on the prospects, condition, financial or otherwise, or in the
earnings, business or operation of the Company and its subsidiaries, taken as a
whole, except as described in the Final Memorandum;
(D) the statements in the Final Memorandum under the caption
"Business -- Description of Country Operations -- IMPSAT Brazil" insofar as such
statements constitute summaries of the Brazil legal matters, documents or
proceedings referred to therein, are accurate in all material respects and
fairly summarize all matters referred to therein;
(E) there are no restrictions (legal, contractual or otherwise)
on the ability of IMPSAT Brazil to declare and pay any dividends or make any
payment or transfer of property or assets to its stockholders other than those
referred to in the Final Memorandum (including, without limitation, the
description of withholding taxes contained therein) and such restrictions as
would not have a material adverse effect on the prospects, condition, financial
or otherwise, or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole; and such descriptions, if any, fairly summarize
such restrictions; and
34
G-2
(F) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened in Brazil to which IMPSAT
Brazil is a party or to which any of the properties of IMPSAT Brazil is subject
other than proceedings fairly summarized in the Final Memorandum and proceedings
which such counsel believes are not likely to have a material adverse effect on
the Company and its subsidiaries, taken as a whole, or on the power or ability
of the Company to perform its obligations under this Agreement or to consummate
the transactions contemplated by this Agreement.
35
EXHIBIT H
Opinion of Xxxxxx & Xxxxxxx
(A) the execution and delivery by the Company of the Placement
Agreement, the Indenture, the Registration Rights Agreement and the Notes, and
the performance by the Company of its obligations thereunder in accordance with
the terms thereof, (i) do not require any consent, approval, authorization or
other order of the Federal Communications Commission ("FCC") and (ii) do not
violate the Federal Communications Act of 1934, as amended (the "Communications
Act") or the rules, regulations and published policies of the FCC;
(B) IMPSAT USA, Inc. holds the FCC licenses, permits and
authorizations set forth in Attachment 1 (the "FCC Licenses"). The FCC Licenses
are in full force and effect. The FCC Licenses are not subject to any conditions
outside the ordinary course;
(C) based on such counsel's review of the FCC files relating to
the Company and IMPSAT USA, Inc., publicly available on February 15, 2000, and
informal and non binding statements and representations of members of staff of
the FCC, and to the best of such counsel's knowledge, there is no pending
threatened proceeding or action by or before the FCC to revoke, cancel, rescind
or adversely modify any of the FCC Licenses, except for proceedings affecting
the telecommunications or satellite industries generally;
(D) the statements in the Final Memorandum under the caption
"Business -- Description of Country Operations -- IMPSAT USA" insofar as such
statements constitute summaries relating to U.S. federal telecommunications
legal matters, and the licenses held by IMPSAT USA, Inc., referred to therein,
are accurate in all material respects.
