UNITED INTERNATIONAL HOLDINGS, INC.
$1,375,000,000 10.75% Senior Secured Discount Notes due 2008
NOTE PURCHASE AGREEMENT
January 30, 1998
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx Xxxx Xxxxxx
XX Securities (USA) Inc.
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
United International Holdings, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation ("DLJ"), Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Xxxxxx Xxxxxxx Xxxx Xxxxxx and TD Securities (USA) Inc. (each, an
"Initial Purchaser" and, collectively, the "Initial Purchasers") an aggregate of
$1,375,000,000 in principal amount at maturity of its 10.75% Senior Secured
Discount Notes due 2008 (the "Senior Notes"), subject to the terms and
conditions set forth herein. The Senior Notes are to be issued pursuant to the
provisions of an indenture (the "Indenture") to be dated as of February 5, 1998
between the Company and Firstar Bank of Minnesota, N.A., as trustee (the
"Trustee"). The Senior Notes will be secured by a first priority lien on (i) all
of the Equity Interests, whether outstanding on the date of the Indenture or
thereafter issued, of United International Properties, Inc. ("UIPI"), which
collateral will be shared ratably with certain holders of the Company's existing
Indebtedness, as described in the Offering Memorandum (defined below), and of
Joint Venture, Inc. ("JVI"), each a Wholly Owned Restricted Subsidiary of the
Company and (ii) all intercompany notes of UIPI, which collateral will be shared
ratably with certain holders of the Company's existing Indebtedness, as
described in the Offering Memorandum, and of JVI, issued from time to time to
the Company (if any), and all proceeds thereof (collectively, the "Collateral")
pursuant to, in the case of UIPI-related collateral, an amended and restated
pledge agreement, dated as of November 22, 1995, as amended by the First
Amendment to be dated as of February 5, 1998, and in the case of JVI-related
collateral, a pledge agreement (collectively, the "Pledge Agreements"), to be
dated as of February 5, 1998, by and between the Company and Xxxxxx Xxxxxxx &
Company Inc., as collateral agent (in such capacity, the "Collateral Agent").
Capitalized terms used herein and not otherwise defined are used
herein as defined in the Offering Memorandum.
1. OFFERING MEMORANDUM. The Senior Notes will be offered and sold to
the Initial Purchasers pursuant to one or more exemptions from the registration
requirements under the Securities Act of 1933, as amended (the "ACT"). The
Company has prepared a preliminary offering memoran dum, dated January 14, 1998
(the "PRELIMINARY OFFERING MEMORANDUM") and a final offering memoran dum, dated
January 30, 1998 (the "OFFERING MEMORANDUM"), relating to the Senior Notes.
Upon original issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the Act, the Senior Notes
(and all securities issued in exchange therefor or in substitution thereof)
shall bear the following legend:
"THIS SENIOR NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE SECOND
SENTENCE HEREOF. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER (1) REPRE SENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT)(A "QIB"), (B) IT IS ACQUIRING THIS SENIOR NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT
OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT (AN "IAI"), (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE
TRANSFER THIS SENIOR NOTE EXCEPT (A) TO THE COMPANY OR ANY OF ITS
SUBSIDIAR IES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF THE
SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144 UNDER THE SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH
TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREE MENTS RELATING TO THE TRANSFER OF THIS
SENIOR NOTE (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND,
IF SUCH TRANS FER IS IN RESPECT OF AN AGGREGATE ACCRETED VALUE OF
SENIOR NOTES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO
THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES
ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
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OTHER APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS SENIOR NOTE OR AN INTEREST HEREIN IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE
THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE
SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS SENIOR NOTE IN
VIOLATION OF THE FOREGOING."
The Initial Purchasers have advised the Company that the Initial
Purchasers will make offers (the "Exempt Resales") of the Senior Notes purchased
hereunder on the terms set forth in the Offering Memorandum, as amended or
supplemented, solely to persons whom the Initial Purchasers reasonably believe
to be "qualified institutional buyers," as defined in Rule 144A under the Act
("QIBs") and to persons permitted to purchase the Senior Notes in offshore
transactions in reliance upon Regulations S under the Act (each a "Regulation S
Purchaser"). The QIBs and Regulation S Purchasers who purchase the Senior Notes
from the Initial Purchasers in the initial placement thereof are referred to
herein as the "Eligible Purchasers." The Initial Purchasers will offer the
Senior Notes to Eligible Purchasers initially at a price equal to 59.069% of the
principal amount at maturity thereof. Such price may be changed by the Initial
Purchasers at any time without notice.
Holders (including subsequent transferees) of the Senior Notes will
have the registration rights set forth in the registration rights agreement (the
"Registration Rights Agreement"), to be dated as of February 5, 1998, in
substantially the form of Exhibit A hereto, for so long as such Senior Notes
constitute "Transfer Restricted Notes" (as defined in the Registration Rights
Agreement). Pursuant to the Registration Rights Agreement, the Company will
agree to file with the Securities and Exchange Commission (the "COMMISSION"),
under the circumstances and on the terms set forth therein, (i) a registration
statement under the Act (the "Exchange Offer Registration Statement") relating
to the Company's Senior Secured Discount Notes due 2008 (the "Exchange Notes"
and together with the Senior Notes, the "Notes"), to be offered in exchange for
the Senior Notes (the "Exchange Offer") and (ii) a shelf registration statement
pursuant to Rule 415 under the Act (the "Shelf Registration Statement" and,
together with the Exchange Offer Registration Statement, the "Registration
Statements") relating to the resale by certain holders of the Senior Notes, and
to use its best efforts to cause such Registration Statements to be declared
effective.
This Purchase Agreement (this "Agreement"), the Supplemental
Indentures to be dated February 5, 1998, to the indentures governing the terms
of the Existing Notes (as defined in the Offering Memorandum), the Indenture,
the Notes, the Pledge Agreements and the Registration Rights Agreement are
hereinafter referred to collectively as the "Transaction Documents."
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell to the Initial
Purchasers, and the Initial Purchasers agree severally and not jointly to
purchase from the Company the principal amounts at maturity of Senior Notes set
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forth opposite the name of such Initial Purchaser on Exhibit B hereto at a
purchase price equal to 57.740% of the principal amount at maturity thereof (the
"Purchase Price").
3. DELIVERY AND PAYMENT. Delivery to the Initial Purchasers of, and
payment for, the Senior Notes shall be made at 9:00 a.m. New York City time, on
February 5, 1998 (the "Closing Date"), at the offices of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP at 000 0xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other
time or place as you and the Company shall designate.
The Senior Notes in global or definitive form shall be registered in
such names and issued in such denominations as you shall request in writing not
later than two full business days prior to the Closing Date, and shall be made
available to the Initial Purchasers for inspection not later than 9:30 A.M., New
York City time, on the business day next preceding the Closing Date. The Senior
Notes shall be delivered to you on the Closing Date with any transfer taxes
payable upon initial issuance thereof duly paid by the Company, for your
respective accounts against payment of the Purchase Price by wire-transfer,
certified or official bank check or checks payable in New York Clearing House or
similar next-day funds to the order of the Company.
4. AGREEMENTS OF THE COMPANY. The Company agrees with the Initial
Purchasers as follows:
a. To advise the Initial Purchasers promptly and, if requested by
the Initial Purchasers, confirm such advice in writing, (i) of the issuance by
any state securities commission of any stop order suspending the qualification
or exemption from qualification of any Senior Notes for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purpose by any state
securities commission or other regulatory authority and (ii) of any change in
the Company's condition (financial or otherwise), business, proposals,
properties, net worth or results of operations or the happening of any event
that makes any statement of a material fact made in the Preliminary Offering
Memorandum or the Offering Memorandum untrue or that requires the making of any
additions to or changes in the Preliminary Offering Memorandum or the Offering
Memorandum in order to make the statements therein, in light of the
circumstances under which they are made, not misleading. The Company shall use
its best efforts to prevent the issuance of any stop order or order suspending
the qualification or exemption of any Senior Notes under any state securities or
Blue Sky laws and, if at any time any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption of any Senior Notes under any state securities or Blue Sky laws, the
Company shall use its best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time.
b. To furnish the Initial Purchasers, without charge, with as many
copies of the Preliminary Offering Memorandum and the Offering Memorandum, and
any amendments or supple ments thereto, as the Initial Purchasers may reasonably
request. The Company consents to the use of the Preliminary Offering Memorandum
and the Offering Memorandum, and any amendments and supplements thereto, by the
Initial Purchaser in connection with offers or sales of the Senior Notes.
c. Not to amend or supplement the Offering Memorandum prior to the
Closing Date, unless you shall previously have been advised thereof and shall
not have objected thereto after being furnished a copy thereof. The Company
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shall promptly prepare, upon your request, any amendment or supplement to the
Offering Memorandum that may be necessary or advisable in connection with Exempt
Resales.
d. If, after the date hereof, any event shall occur as a result of
which, in the reasonable judgment of the Company or in the reasonable judgment
of the Initial Purchasers or their counsel, it becomes necessary to amend or
supplement the Offering Memorandum in order to make the statements therein, in
the light of the circumstances when the Offering Memorandum is delivered to an
Eligible Purchaser, not misleading, or if it is necessary to amend or supplement
the Offering Memorandum to comply with applicable law, forthwith to prepare an
appropriate amendment or supplement to the Offering Memorandum so that the
statements therein as so amended or supplemented will not, in the light of the
circumstances when it is so delivered, be misleading, or so that the Offering
Memorandum will comply with applicable law.
e. To cooperate with you and your counsel in connection with the
qualification of the Securities under the securities or Blue Sky laws of such
jurisdictions as you may request and to continue such qualification in effect
for as long as may be necessary to complete the distribution of the Exempt
Resales; PROVIDED, HOWEVER, that the Company shall not be required in connection
therewith to register or qualify as a foreign corporation where it is not now so
qualified or to take any action that would subject it to the service of process
in suits or taxation, other than as to matters and transactions relating to the
Exempt Resales, in any jurisdiction where it is not now so subject.
f. Whether or not the transactions contemplated by this Agreement
are consummated or this Agreement becomes effective or is terminated, to pay all
costs, expenses, fees and taxes incident to and in connection with: (i) the
printing, processing, filing, distribution and delivery of the Offering
Memorandum (including, without limitation, financial statements and exhibits)
and all amendments and supplements thereto, (ii) the printing, processing,
execution, distribution and delivery of this Agreement, the other Transaction
Documents, any memoranda describing state securities or Blue Sky laws and all
other agreements, memoranda, correspondence and other documents printed,
distributed and delivered in connection herewith and with the offer or sale of
the Senior Notes, (iii) the issuance and delivery by the Company of the Senior
Notes, (iv) the qualification of the Senior Notes for offer and sale under the
securities or Blue Sky laws of the several states (including, without
limitation, the fees and disbursements of your counsel relating to such
registration or qualification and memoranda relating thereto and any filing fees
in connection therewith), (v) furnishing such copies of the Offering Memorandum,
and all amend ments and supplements thereto, as may be reasonably requested for
use in connection with Exempt Resa1es, (vi) the preparation of certificates for
the Senior Notes (including, without limitation, printing and engraving
thereof), (vii) the fees, disbursements and expenses of the Company's counsel
and accountants, all expenses and listing fees in connection with the
application for quotation of the Senior Notes in the National Association of
Securities Dealers, Inc. ("NASD") Automated Quotation System - PORTAL
("PORTAL"), (ix) all fees and expenses (including fees and expenses of counsel)
of the Company in connection with approval of the Senior Notes by DTC for
"book-entry" transfer, (x) the performance by the Company of its other
obligations under this Agreement and the other Transaction Documents and (xi)
the rating of the Senior Notes by investment rating agencies.
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g. To use the proceeds from the sale of the Senior Notes in the
manner described in the Offering Memorandum under the caption "Use of Proceeds."
h. Not to claim voluntarily, and to resist actively any attempts
to claim, the benefit of any usury laws against the holders of any Senior Notes.
i. To do and perform all things required to be done and performed
under this Agreement by it on, prior to, or after the Closing Date and to use
its best efforts to satisfy all conditions precedent on its part to the delivery
of the Senior Notes.
j. Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Act), other
than the Senior Notes, in a manner that would require the registration under the
Act of the sale to Initial Purchasers or Eligible Purchasers of the Senior
Notes.
k. For so long as any of the Securities remain outstanding and
during any period in which the Company is not subject to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make
available to any holder and any prospective purchaser of such Notes from such
holder, the information required by Rule l 44A(d)(4) under the Act.
l. Except as otherwise permitted under the Act, it will not, and
will not authorize or permit any person acting on its behalf to, solicit any
offer to buy or offer to sell the Notes by means of any form of general
solicitation or general advertising (as such terms are used in Regulation D
under the Act) or in any manner involving a public offering within the meaning
of Section 4(2) of the Act.
m. To use its best efforts to cause the Exchange Offer to be made
on the appropriate form to permit registration of the Exchange Notes to be
offered in exchange for the Senior Notes and to comply with all applicable
Federal and state securities laws in connection with the Exchange Offer.
n. To comply with all of its agreements set forth in the
Transaction Documents, and all agreements set forth in the representation letter
of the Company to DTC relating to the approval of the Senior Notes by DTC for
"book-entry" transfer.
o. To use its best efforts to effect the inclusion of the Senior
Notes in PORTAL.
p. During a period of five years following the date of this
Agreement, to deliver to each of you promptly upon their becoming available,
copies of all current, regular and periodic reports filed by the Company with
the Commission or any securities exchange or with any governmental authority
succeeding to any of the Commission's functions.
q. If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to Section
9 hereof) or if this Agreement shall be terminated by the Initial Purchasers
because of any failure or refusal on the part of the Company to comply with the
terms or fulfill any of the conditions of this Agreement, the Company agrees to
reimburse the Initial Purchasers for all out-of-pocket expenses (including fees
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and expenses of counsel) for those reasonably incurred by the Initial Purchasers
in connection with the matters covered by this Agreement.
5. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to each of the Initial
Purchasers that:
a. The Preliminary Offering Memorandum and the Offering Memorandum
have been prepared in connection with and in contemplation of the Exempt
Resales. The Preliminary Offering Memorandum and the Offering Memorandum do not,
and any supplement or amendment thereto, if any, prepared by the Company 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 under which they were made, not misleading, except that the
representations and warranties contained in this paragraph (i) shall not apply
to statements in or omissions from the Preliminary Offering Memorandum and the
Offering Memorandum (or any supplement or amendment thereto) made in reliance
upon and in confor mity with information relating to you furnished to the
Company in writing by you expressly for use therein. The Company acknowledges
for all purposes under this Agreement that the statements set forth in the last
paragraph on the cover page, the stabilization legend appearing as the bold
paragraph on page 2 and in the third full paragraph and the fourth sentence of
the seventh paragraph, the tenth paragraph and the eleventh paragraph appearing
under the caption "Plan of Distribution" in the Preliminary Offering Memorandum
and the Offering Memorandum constitute the only written information furnished to
the Company by you expressly for use in the Preliminary Offering Memorandum and
the Offering Memorandum (or any amendment or supplement thereto) pertaining to
any arrangement or agreement with respect to any party other than you. No stop
order preventing the use of the Preliminary Offering Memorandum and the Offering
Memorandum, or any amendment or supplement thereto, or any order asserting that
any of the transactions contemplated by this Agreement are subject to the
registration requirements of the Act or the applicable laws of any other
jurisdiction, has been issued.
b. When the Senior Notes are issued and delivered pursuant to this
Agreement, none of the Senior Notes will be of the same class (within the
meaning of Rule 144A under the Act) as securities of the Company that are listed
on a national securities exchange registered pursuant to the Exchange Act or
that are quoted in a United States automated inter dealer quotation system.
c. All the outstanding shares of capital stock of the Company have
been duly authorized and validly issued, are fully paid and nonassessable and
are free of any preemptive or similar rights; the capital stock of the Company
conforms in all material respects to the description thereof in the Preliminary
Offering Memorandum and the Offering Memorandum; and the Company's ownership
interest with respect to each of the corporations and partnerships (including
its Restricted Affiliates) in which the Company has a direct or indirect
investment (each a "Subsidiary" and, collectively, the "Subsidiaries") is in all
material respects as described in the Preliminary Offering Memorandum and the
Offering Memorandum and the descriptions of contracts and agreements set forth
therein are accurate and complete in all material respects.
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d. The Company has all necessary corporate power and authority to
execute and deliver this Agreement and the other Transaction Documents and to
perform its obligations under this Agreement and the other Transaction Documents
and to authorize, issue, sell and deliver the Notes as contemplated by this
Agreement and to perform its obligations thereunder, as applicable.
e. The Indenture and the Supplemental Indentures have been duly
authorized by the Company and, when executed and delivered at the Closing, will
be valid and legally binding agreements of the Company, enforceable against the
Company in accordance with their terms. The Indenture, when executed and
delivered, will conform to the description thereof in the Offering Memorandum.
f. The Senior Notes have been duly authorized by the Company and,
on the Closing Date, will have been duly executed by the Company and will
conform in all materials respects to the descriptions thereof in the Offering
Memorandum. When the Senior Notes are issued, authenti cated and delivered in
accordance with the Indenture and paid for in accordance with the terms of this
Agreement, the Senior Notes will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance with
their terms and entitled to the benefits of the Indenture.
g. The Exchange Notes have been duly and validly authorized for
issuance by the Company, and when issued and authenticated in accordance with
the terms of the Indenture and the Registration Rights Agreement will be valid
and legally binding obligations of the Company, enforceable against the Company
in accordance with their terms and entitled to the benefits of the Indenture.
h. The Registration Rights Agreement has been duly and validly
authorized by the Company and, when duly executed and delivered by the Company,
will be the valid and legally binding obligation of the Company enforceable
against the Company in accordance with its terms. The Registration Rights
Agreement, when executed and delivered, will conform to the description thereof
in the Offering Memorandum.
i. The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware with full
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Preliminary Offering Memorandum and the
Offering Memorandum, and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place where the nature
of its properties or the conduct of its business requires such registration or
qualification, except where the failure to so register or qualify does not have
a material adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of the Company and the
Subsidiaries taken as a whole. Such an effect, either singly or in the
aggregate, is referred to in this Agreement as a "Material Adverse Effect" and
the word "material" shall have a corresponding meaning.
j. The Subsidiaries that were "significant subsidiaries" (as such
term is defined in Rule 1-02(w) of Regulation S-X) as of February 28, 1997 are
listed in the list of subsidiaries included as an exhibit to the Company's
Annual Report on Form 10-K which is incorporated by reference into the Offering
Memorandum. Each Subsidiary is a corporation or other legal entity duly
organized, validly existing and in good standing in the jurisdiction of its
formation, with full power and authority to own, lease and operate its
8
properties and to conduct its business as described in the Offering Memorandum,
and is duly registered and qualified to conduct its business and is in good
standing in each jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or qualification, except
where the failure so to register or qualify does not have a Material Adverse
Effect; except as set forth in the Offering Memorandum, all the outstanding
shares of capital stock or other equity interests of each of the Subsidiaries
have been duly authorized and validly issued, are fully paid and nonassessable,
and are owned by the Company directly or indirectly through one of the other
Subsidiaries, free and clear of any material lien, adverse claim, security
interest, equity or other encumbrance.
k. There is (A) no legal, regulatory or governmental action, suit
or proceeding before or by any court, arbitrator or governmental agency, body or
official, domestic or foreign, now pending or, to the knowledge of the Company,
threatened or contemplated to which the Company or any of the Subsidiaries is a
party or to which the business or property of the Company or any of the
Subsidiaries is subject, (B) no statute, rule, regulation or order that has been
enacted, adopted or issued by any govern mental agency or that has been proposed
by any governmental body, (C) no injunction, restraining order or order of any
nature by a federal or state court or foreign court of competent jurisdiction to
which the Company or any of the Subsidiaries is subject issued that, in the case
of clauses (A), (B) and (C) above, (x) might, singly or in the aggregate, result
in a Material Adverse Effect, (y) would interfere with or adversely affect the
issuance of the Notes or (z) in any manner draw into question the validity of
this Agreement or the other Transaction Documents.
l. Neither the Company nor any of the Subsidiaries is in violation
of its certificate or articles of incorporation or by-laws or other
organizational documents, or in material violation of any law, ordinance,
administrative or governmental rule or regulation applicable to the Company or
any of the Subsidiaries or of any decree of any court or governmental agency or
body having jurisdiction over the Company or any of the Subsidiaries, or in
default in any material respect in the performance of any obligation, agreement
or condition contained in any bond, debenture, note or any other evidence of
indebtedness or in any material agreement, indenture, lease or other instrument
to which the Company or any of the Subsidiaries is a party or by which any of
them or any of their respective properties may be bound.
m. Neither the issuance and sale of the Notes, the execution and
delivery by the Company of the Transaction Documents, the performance of this
Agreement, the Indenture, the Supplemental Indentures, the Pledge Agreements and
the Registration Rights Agreement by the Company, nor the consummation by the
Company of the transactions contemplated hereby and thereby (i) requires any
consent, approval, authorization or other order of or registration or filing
with, any court, regulatory body, administrative agency or other governmental
body, agency or official except such as have been obtained and made (or, in the
case of the Registration Rights Agreement, will be obtained and made under the
Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
and United States state securities or Blue Sky laws and regulations or such as
may be required by the NASD), (ii) conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, the certificate
or articles of incorporation or bylaws, or other organizational documents, of
the Company or any of the Subsidiaries, (iii) conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, any agreement,
indenture, lease or other instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or any of their respective
9
properties may be bound or (iv) violates or will violate any statute, law,
regulation or filing or judgment, injunction, order or decree applicable to the
Company or any of the Subsidiaries or any of their respective properties, or
will result in the creation or imposition of any lien, charge or encum brance
upon any property or assets of the Company (other than in favor of the Holders)
or any of the Subsidiaries pursuant to the terms of any agreement or instrument
to which any of them is a party or by which any of them may be bound or to which
any of the property or assets of any of them is subject, except in each case
where failure to obtain such consents, approvals, authorizations or orders or
make such registrations or filings or where such conflicts or violations will
not individually or in the aggregate have a Material Adverse Effect.
n. The accountants, Xxxxxx Xxxxxxxx LLP and KPMG Accountants N.V.,
each of which has audited certain of the financial statements that are included
or summarized in the Offering Memorandum, are independent certified public
accountants under Rule 101 of the AICPA's Code of Professional Conduct and its
interpretations and rulings. The financial statements, together with related
schedules and notes, included in the Preliminary Offering Memorandum and the
Offering Memoran dum (and any amendment or supplement thereto) present fairly
the respective financial positions, results of operations and changes in
financial positions of the Company and each Subsidiary, in each case, for which
such financial statements are so included, on the basis stated in the
Preliminary Offering Memorandum and the Offering Memorandum at the respective
dates or for the respective periods to which they apply; such financial
statements and related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved, except as disclosed therein; and the other financial and
statistical information and data included in the Preliminary Offering Memorandum
and the Offering Memorandum (and any amendment or supplement thereto) are
accurately presented in all material respects and prepared on a basis consistent
with such financial statements and the books and records of the Company and the
Subsidiaries.
o. The financial statements, included in the Preliminary Offering
Memorandum and the Offering Memorandum (and any amendment or supplement
thereto), present fairly the respective financial positions, results of
operations and changes in financial positions of (i) the Company and (ii) each
Subsidiary, in each case, for which such financial statements are so included,
on the basis stated in the Preliminary Offering Memorandum and the Offering
Memorandum at the respective dates or for the respective periods to which they
apply; such financial statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; the other financial and statistical information and data included in
the Preliminary Offering Memorandum and the Offering Memorandum (and any
amendment or supplement thereto) are accurately presented in all material
respects and prepared on a basis consistent with such financial statements and
the books and records of the Company and the Subsidiaries; and the pro forma
financial statements and "as adjusted" financial information and the related
notes thereto included in the Preliminary Offering Memorandum and the Offering
Memorandum have been prepared in accordance with the applicable requirement of
the Act (as though the Offering Memorandum were a prospectus included in a
registration statement filed pursuant to the Act) and on the bases described
therein and, in the opinion of the Company, the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred to
therein.
10
p. The execution and delivery of, and the performance by the
Company of its obligations under, this Agreement have been duly and validly
authorized by the Company, and this Agreement has been duly executed and
delivered by the Company and constitutes the valid and legally binding agreement
of the Company, enforceable against the Company in accordance with its terms,
except as rights to indemnity and contribution hereunder or thereunder may be
limited by federal or state securities laws.
q. Except as disclosed in the Preliminary Offering Memorandum or
the Offering Memorandum (or any amendment or supplement thereto), subsequent to
the respective dates as of which such information is given in the Preliminary
Offering Memorandum and the Offering Memoran dum (or any amendment or supplement
thereto), neither the Company nor any of the Subsidiaries has incurred any
liability or obligation, direct or contingent or entered into any transaction,
not in the ordinary course of business, that is material to the Company on a
consolidated basis, and there has not been any change in the capital stock or
material increase in the short-term debt or long-term debt of the Company, any
of the Subsidiaries, or any change or any development that has, or that may
reasonably be expected to have, a Material Adverse Effect, or any discovery of
any change or development that may be reasonably expected to have any such
Material Adverse Effect.
r. Except as is not material, each of the Company and each
Subsidiary has good and marketable title to all property (real and personal)
described in the Preliminary Offering Memoran dum and the Offering Memorandum as
being owned by it, free and clear of all liens, claims, security interests or
other encumbrances (except such as are described in the Preliminary Offering
Memoran dum and the Offering Memorandum and all the property described in the
Prospectus as being held under lease by each of the Company and the Subsidiaries
is held by it under valid, subsisting and enforceable leases).
s. Each of the Company and each Subsidiary has such material
permits, licenses, franchises and authorizations of governmental or regulatory
authorities ("permits") as are necessary to own its respective properties and to
conduct its respective business in the manner described in the Preliminary
Offering Memorandum and the Offering Memorandum, subject to such qualifications
as may be set forth in the Preliminary Offering Memorandum and the Offering
Memorandum; each of the Company and each Subsidiary has fulfilled and performed
all its material obligations with respect to such permits and no event has
occurred that allows, or after notice or lapse of time would allow, revocation
or termination thereof or result in any other material impairment of the rights
of the holder of any such permit, subject in each case to such qualification as
may be set forth in the Preliminary Offering Memorandum and the Offering
Memorandum; and, except as described in the Preliminary Offering Memorandum and
the Offering Memorandum, none of such permits contains any restriction that is
materially burdensome to the Company or any of the Subsidiaries. The
descriptions contained in the Preliminary Offering Memorandum and the Offering
Memorandum of statutes, rules, regulations and other laws applicable to the
Company and the Subsidiaries are accurate and complete in all material respects.
t. The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
11
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
u. No action has been taken and no statute, rule or regulation or
order has been enacted, adopted or issued by any governmental agency that
prevents the issuance of the Notes; no injunction, restraining order or order of
any nature by a federal or state court of competent jurisdiction has been issued
that prevents the issuance of the Notes or suspends the sale of the Notes in any
jurisdiction referred to in Section 4(e) hereof, and no action, suit or
proceeding is pending affecting or, to the knowledge of the Company, threatened
against the Company or any of the Subsidiaries before any court or arbitrator or
any governmental body, agency or official which, if adversely determined, would
prohibit, interfere with or adversely affect the issuance or marketability of
the Notes or in any manner draw into question the validity of any of the
Transaction Documents; and every request of the Company by any securities
authority or agency of any jurisdiction for additional information has been
complied with in all material respects.
v. To the Company's knowledge, neither the Company nor any of its
Subsidiaries nor any employee, agent, co-investor or partner of the Company or
any Subsidiary has made any payment of funds of the Company or any Subsidiary or
received or retained any funds in violation of any law, rule or regulation,
which payment, receipt or retention of funds is of a character required to be
disclosed in the Offering Memorandum.
w. No registration under the Act of the Senior Notes is required
for the sale of the Senior Notes to the Initial Purchasers as contemplated
hereby or for Exempt Resales to the Eligible Purchasers, assuming (A) that the
persons who buy the Senior Notes in the Exempt Resales are Eligible Purchasers
and (B) the accuracy of the Purchaser's representations regarding the absence of
general solicitation in connection with the sale of the Senior Notes to the
Initial Purchasers and the Exempt Resales described herein. No form of general
solicitation or general advertising was used by the Company or any of its
representatives in connection with the offer and sale of any of the Senior Notes
or in connection with Exempt Resales, including, but not limited to, articles,
notices or other communications published in any newspaper, magazine, or similar
medium or broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any general solicitation or general advertising.
No securities of the same class as the Senior Notes have been issued and sold by
the Company within the six-month period immediately prior to the date hereof.
x. The Offering Memorandum, as of its date, and each amendment or
supplement thereto, as of its date, contains all the information specified in,
and meets the requirements of; Rule 144A(d)(4) under the Act.
y. Each of the Company and each Subsidiary has filed all material
tax returns required to be filed, which returns are complete and correct in all
material respects, and neither the Company nor any Subsidiary is in default in
the payment of any taxes which were payable pursuant to said returns or any
assessments with respect thereto.
12
z. The Company and the Subsidiaries own or possess all material
patents, trademarks, trademark registrations, service marks, service xxxx
registrations, trade names, copy rights, licenses, inventions, trade secrets and
rights described in the Preliminary Offering Memorandum and the Offering
Memorandum as being owned by them or any of them or necessary for the conduct of
their respective businesses, and the Company is not aware of any claim to the
contrary or any challenge by any other person to the rights of the Company and
the Subsidiaries with respect to the foregoing.
aa. The Company is not now, and after the sale of the Senior Notes
to be sold by it hereunder and the application of the proceeds from such sale as
described in the Offering Memorandum under the caption "Use of Proceeds" will
not be, an "investment company" within the meaning of the Investment Company Act
of 1940, as amended.
bb. The Company has complied with all provisions of Florida H.B.
1771 codified as Section 517.075 of the Florida statutes, and all regulations
promulgated thereunder, relating to issuers doing business with the Government
of Cuba or with any person or any affiliate located in Cuba.
cc. Except as described in the Preliminary Offering Memorandum and
the Offering Memorandum, there are no outstanding options, warrants or other
rights calling for the issuance of, or any commitment, plan or arrangement to
issue, any shares of capital stock of the Company or any security convertible
into or exchangeable or exercisable for capital stock of the Company.
dd. Except as described in the Preliminary Offering Memorandum and
the Offering Memorandum, there is no holder of any security of the Company or
any other person who has the right, contractual or otherwise, to cause the
Company to sell or otherwise issue to them, or to permit them to underwrite the
sale of, the Notes or the right to have any other securities of the Company
included in the registration statement or the right to require registration
under the Act of any securities of the Company because of the execution by the
Company of this Agreement or consummation of the transactions contemplated by
this Agreement or otherwise.
ee. Except as set forth in the Offering Memorandum, the Company
has no commitments to fund entities that do not constitute Subsidiaries.
ff. None of the Company, any Subsidiary or any agent thereof
acting on the behalf of either of them has taken, and none of them will take,
any action that might cause this Agreement or the issuance or sale of the Notes
pursuant to the terms of this Agreement to violate Regulation G (12 C.F.R. Part
207), Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or
Regula tion X (12 C.F.R. Part 224) of the Board of Governors of the Federal
Reserve System, in each case as in effect now or as the same may hereafter be in
effect on the Closing Date.
gg. The Pledge Agreements have been duly authorized, and when
executed and delivered by the Company will be a valid and legally binding
agreements of the Company, enforceable against the Company in accordance with
their terms. The Pledge Agreements, when executed and delivered, will conform in
all material respects to the description thereof in the Preliminary Offering
Memorandum and the Offering Memorandum.
13
hh. The Collateral has been,or on or prior to the Closing Date
will have been, delivered to the Collateral Agent and assuming the Collateral
Agent is holding the certificates and notes representing the Collateral in the
State of New York the Pledge Agreements will create a valid and perfected
security interest in the Collateral in favor of the Collateral Agent, on behalf
and for the benefit of the holders of the Senior Notes, each such security
interest having such priority as to the Collateral as is set forth in the
Offering Memorandum and no filings or recordings are required in order to
perfect the security interest created under the Pledge Agreement in the
Collateral.
ii. The Company owns 100% of the Equity Interests or other
securities evidencing equity ownership of UIPI and JVI, free and clear of any
security interest, claim, lien or encumbrance (except for the pledge pursuant to
the Pledge Agreements as set forth in the Offering Memorandum); and all of such
securities have been duly authorized, validly issued and are fully paid and
nonassess able. There are no outstanding rights, warrants or options to acquire,
or instruments convertible into or exchangeable for, any such shares of capital
stock or other equity interest of UIPI or JVI.
jj. All of the Equity Interests of UIPI and of JVI and all
intercompany notes of UIPI and of JVI issued to the Company are owned by the
Company free and clear of any security interest, claim, lien or encumbrance
(except for the existing pledge pursuant to the Amended and Restated Pledge
Agreement dated November 22, 1995, as amended).
The Company acknowledges that the Initial Purchasers and, for purposes
of the opinions to be delivered to the Initial Purchasers pursuant to Section 7
hereof, counsel to the Company and counsel to the Initial Purchasers, will rely
upon the accuracy and truth of the foregoing representations and hereby consents
to such reliance.
(b) The Initial Purchasers severally represent and warrant to the
Company and agree that:
a. Each of the Initial Purchasers is a QIB, with such knowledge
and experience in financial and business matters as are necessary in order to
evaluate the merits and risks of an invest ment in the Senior Notes.
b. The Initial Purchasers (A) are not acquiring the Senior Notes
with a view to any distribution thereof that would violate the Act or the
securities laws of any state of the United States or any other applicable
jurisdiction and (B) will be reoffering and reselling the Senior Notes only to
Eligible Purchasers that the Initial Purchasers reasonably believe are QIBs in
reliance on the exemption from the registration requirements of the Act and in
offshore transactions in reliance on Regulation S under the Act.
c. No form of general solicitation or general advertising has been
or will be used by the Initial Purchasers or any of its representatives in
connection with the offer and sale of any of the Senior Notes, which would
render unavailable to the Company reliance upon the exemption from the
registration requirements of the Act afforded by Section 4(2) thereof,
including, but not limited to, articles, notices or other communications
published in any newspaper, magazine, or similar medium or broadcast over
television or radio, or any seminar or meeting whose attendees have been invited
by any general solicitation or general advertising.
14
d. Each of the Initial Purchasers agrees that, in connection with
the Exempt Resales, it will solicit offers to buy the Senior Notes only from,
and will offer to sell the Senior Notes only to, Eligible Purchasers. Such
Initial Purchasers further agree (a) that they will offer to sell the Senior
Notes only to, and will solicit offers to buy the Senior Notes only from
Eligible Purchasers that the Initial Purchasers reasonably believe are QIBs and
Regulation S Purchasers in each case, that agree that (x) the Senior Notes
purchased by them may be resold, pledged or otherwise transferred within the
time period referred to under Rule 144(k) (taking into account the provisions of
Rule 144(d) under the Act, if applicable) under the Act, as in effect on the
date of the transfer of such Senior Notes, only (I) to the Company or any of its
subsidiaries, (II) to a person whom the seller reasonably believes is a QIB
purchasing for its own account or for the account of a QIB in a transaction
meeting the requirements of Rule 144A under the Act, (III) in an offshore
transaction (as defined in Rule 902 under the Act) meeting the requirements of
Rule 903 or Rule 904 of the Act, (IV) in a transaction meeting the requirements
of Rule 144 (if available) under the Act, (V) to an institutional "accredited
investor" that, prior to such transfer, furnishes the Trustee a signed letter
containing certain representations and agreements relating to the registration
of transfer of such Senior Note (the form of which is substan tially the same as
ANNEX A to the Offering Memorandum) and, if such transfer is in respect of an
aggregate Accreted Value of Senior Notes less than $250,000, an opinion of
counsel acceptable to the Company that such transfer is in compliance with the
Act, (VI) in accordance with another exemption from the registration
requirements of the Act (and based upon an opinion of counsel acceptable to the
Company) or (VII) pursuant to an effective registration statement and, in each
case, in accordance with the applicable securities laws of any state of the
United States or any other applicable jurisdiction and (y) they will deliver to
each person to whom such Senior Notes or an interest therein is transferred a
notice substantially to the effect of the foregoing.
e. Each Initial Purchaser also understands that the Company and,
for purposes of the opinions to be delivered to you pursuant to Section 7
hereof, counsel to the Company and counsel to the Initial Purchasers will rely
upon the accuracy and truth of the foregoing representations and hereby consents
to such reliance.
6. INDEMNIFICATION AND CONTRIBUTION.
a. The Company agrees to indemnify and hold harmless (i) each
Initial Purchaser, (ii) each person, if any, who controls such Initial Purchaser
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
and (iii) the respective officers, directors, partners, employees,
representatives and agents of each Initial Purchaser or any controlling person
(any person referred to in clause (i), (ii) or (iii) may hereinafter be referred
to as an "Indemnified Person") from and against any and all losses, claims,
damages, liabilities and expenses (including reasonable costs of investigation)
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in the Preliminary Offering Memorandum or the Offering
Memorandum or in any amend ment or supplement thereto, or arising out of or
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any untrue statement or omission or
alleged untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with information relating to such
Initial Purchasers furnished to the Company in writing by or on behalf of such
15
Initial Purchaser expressly for use in connection therewith. The foregoing
indemnity agreement shall be in addition to any liability which the Company may
otherwise have.
b. If any action, suit or proceeding shall be brought against any
Indemnified Person with respect to which indemnity may be sought against the
Company, such Indemnified Person shall promptly notify the Company, and the
Company shall assume the defense thereof, including the employment of counsel
and payment of all fees and expenses. Any Indemnified Person shall have the
right to employ separate counsel in any such action, suit or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person, unless (i) the Company has
agreed in writing to pay such fees and expenses, (ii) the Company has failed to
assume the defense and employ counsel, or (iii) the named parties to any such
action, suit or proceeding (including any impeded parties) include both such
Indemnified Person and the Company and such Indemnified Person shall have been
advised by its counsel that representation of such Indemnified Person and the
Company by the same counsel would be inappropriate under applicable standards of
professional conduct (whether or not such representation by the same counsel has
been proposed) due to actual or potential differing interests between them (in
which case the Company shall not have the right to assume the defense of such
action, suit or proceeding on behalf of such Indemni fied Person). It is
understood, however, that the Company shall, in connection with any one such
action, suit or proceeding or separate but substantially similar or related
actions, suits or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for such Indemnified Person not having actual or potential
differing interests with such Indemnified Person or among themselves, which firm
shall be designated in writing by such Indemni fied Person, and that all such
fees and expenses shall be reimbursed as they are incurred. The Company shall
not be liable for any settlement of any such action, suit or proceeding effected
without its written consent, but if settled with such written consent, or if
there be a final judgment for the plaintiff in any such action, suit or
proceeding, the Company agrees to indemnify and hold harmless any Indemnified
Person, to the extent provided in the preceding paragraph, from and against any
loss, claim, damage, liability or expense 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 such indemnified
party for fees and expenses of counsel as incurred, 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
business days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement. The
indemnifying party shall not, without the prior written consent of each
indemnified party, settle or compromise or consent to the entry of judgment in
or otherwise seek to terminate any pending or threatened action, claim,
litigation or proceeding in respect of which indemnification or contribution may
be sought hereunder (whether or not any indemnified party is a party thereto),
unless such settlement, compromise, consent or termination includes an
unconditional release of each indemnified party from all liability arising out
of such action, claim, litigation or proceeding.
c. The Initial Purchasers agree to indemnify and hold harmless the
Company, its directors, its officers and any person who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each
16
Indemnified Person, but only with respect to information relating to such
Indemnified Person furnished in writing by or on behalf of such Indemnified
Person through you expressly for use in the Preliminary Offering Memorandum or
Offering Memorandum, or any amendment or supplement thereto. If any action, suit
or proceeding shall be brought against the Company, any of its directors, any
such officer, or any such controlling person based on the Offering Memorandum,
or any amend ment or supplement thereto, and in respect of which indemnity may
be sought against any Initial Purchasers pursuant to this paragraph c. the
Initial Purchasers shall have the rights and duties given to the Company by
paragraph b. above (except that if the Company shall have assumed the defense
thereof such Initial Purchasers shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such Initial
Purchasers), and the Company, its directors, any such officer, and any such
controlling person shall have the rights and duties given to such Initial
Purchasers by paragraph b. above. The foregoing indemnity agreement shall be in
addition to any liability which such Initial Purchasers may otherwise have.
d. If the indemnification provided for in this Section 6 is
unavailable to an indemnified party under paragraphs a. or c. hereof in respect
of any losses, claims, damages, liabilities or expenses referred to therein,
then an indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Initial Purchaser on the other hand from the
offering of the Senior Notes, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Initial Purchaser
on the other hand in connection with the statements or omissions that resulted
in such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and any Initial Purchaser on the other hand shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by such Initial Purchaser. The relative fault
of the Company on the one hand and any Initial Purchaser 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 on the one hand
or by the Initial Purchaser on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
e. The Company and the Initial Purchasers agree that it would
not be just and equitable if contribution pursuant to this Section 6 were
determined by a 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, liabilities and expenses referred to in paragraph d.
above shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 6, no Initial
Purchaser shall be required to contribute any amount in excess of the amount by
which the total discounts and commissions received by such Initial Purchaser
pursuant to this Agreement exceeds the amount of any damages which the Initial
Purchaser has otherwise been required to pay by reason of such untrue or alleged
17
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
f. Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or contribution under this
Section 6 shall be paid by the indemnify ing party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 6 and the
representations and warranties of the Company and of the Initial Purchasers set
forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of the Initial
Purchasers or any person controlling such Initial Purchasers, the Company, its
directors or officers, or any person controlling the Company, (ii) acceptance of
any Senior Notes and payment therefor hereunder, and (iii) any termination of
this Agreement. A successor to an Initial Purchaser or any person controlling
such Initial Purchaser, or to the Company, its directors or officers, or any
person controlling the Company, shall be entitled to benefits of the indemnity,
contribution, and reimbursement agreements contained in this Section 6.
g. INFORMATION FURNISHED BY THE INITIAL PURCHASERS. The statements
set forth in the paragraph on the cover page, the stabilization legend appearing
as the bold paragraph on page 2 and in the third full paragraph and the fourth
sentence of the seventh paragraph, the tenth paragraph and the eleventh
paragraph appearing under the caption "Plan of Distribution" in the Preliminary
Offering Memorandum and Offering Memorandum constitute the only information
relating to the Initial Purchasers furnished to the Company in writing by or on
behalf of the Initial Purchasers as such information is referred to in Sections
5(b) and 6 hereof.
7. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS. The obligation of
the Initial Purchaser to purchase Senior Notes hereunder is subject to the
following conditions:
a. All of the representations and warranties of the Company
contained in this Agreement shall be true and correct on the date hereof and on
the Closing Date with the same force and effect as if made on and as of the date
hereof and the Closing Date, respectively. The Company shall have performed or
complied with all of the agreements herein contained and required to be
performed or complied with by it at or prior to the Closing Date.
b. The Offering Memorandum shall have been printed and copies
distributed to the Initial Purchasers not later than 10:00 a.m. New York City
time on the first business day after the date of this Agreement or at such later
date and time as to which you may agree, and no stop order suspending the
qualification or exemption from qualification of any of the Senior Notes in any
jurisdiction shall have been issued and no proceeding for that purpose shall
have been commenced or shall be pending or threatened.
c. No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency which would, as of the Closing Date, prevent the issuance or
sale of any of the Senior Notes; no action, suit or proceeding shall be pending
against or affecting or, to the knowledge of the Company, threatened against,
the Company or any of the Subsidiaries before any court or arbitrator or any
18
governmental body, agency or official that, if adversely determined, would
prohibit, interfere with or adversely affect the issuance or sale of the Senior
Notes or would have a Material Adverse Effect or in any manner draw into
question the validity of any of the Transaction Documents; and no stop order,
injunction, restraining order, or order of any nature preventing the use of the
Offering Memorandum, or any amendment or supplement thereto, or any order
asserting that any of the transactions contemplated by this Agreement are
subject to the registration requirements of the Act shall have been issued.
d. Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change, or any development involving a prospective
change, in or affecting the condition (financial or other), business,
properties, net worth, or results of operations of the Company or the
Subsidiaries not contemplated by the Offering Memorandum, which, would
materially adversely affect the market for the Senior Notes or (ii) any event or
development relating to or involving the Company or any officer or director of
the Company which makes any statement made in the Offering Memorandum untrue in
any material respect which, in the opinion of the Company and its counsel or the
Initial Purchaser and their counsel, requires the making of any addition to or
change in the Offering Memorandum in order to make the statements therein not
misleading, if amending or supplementing the Offering Memorandum to reflect such
event or development would in the opinion of the Initial Purchasers, materially
adversely affect the market for the Senior Notes.
e. The Initial Purchasers shall have received on the Closing Date,
an opinion of Holme Xxxxxxx & Xxxx LLP, counsel for the Company, dated the
Closing Date and addressed to you, to the effect that:
i. The Company is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware with full
corporate power and authority to own lease and operate its properties and to
conduct its business as described in the Offering Memorandum, (and any amendment
or supplement thereto) and, based solely on certificates from and correspondence
with public officials, is qualified to do business and is in good standing in
the states Colorado and Delaware;
ii. Each of UIPI and JVI (collectively, the "Designate
Subsidiaries") and each of the corporate Subsidiaries incorporated in the United
States (the "U.S. Subsidiaries") is a corporation duly organized and validly
existing in good standing under the laws of the jurisdiction of its
incorporation, with full power and authority to own, lease, and operate its
properties and to conduct its business as described in the Offering Memorandum
(and any amendment or supplement thereto); and all the outstanding shares of
capital stock of each of the Designated Subsidiaries have been duly authorized
and validly issued, are fully paid and nonassessable and, except as set forth in
the Offering Memorandum, are owned by the Company directly free and clear, to
the best knowledge of such counsel after reasonable inquiry, of any security
interest, lien, adverse claim, equity or other encum brance;
iii. All the outstanding shares of capital stock or other
equity interest of each of the U.S. Subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable and were not issued in
violation of any preemptive or similar rights (whether provided pursuant to
Transaction Documents or, to the best knowledge of such counsel, after due
inquiry, contractually), and, except as set forth in the Offering Memorandum,
19
are owned by the Company directly, or indirectly through one of the U.S.
Subsidiaries, free and clear, to the best knowledge of such counsel after due
inquiry, of any security interest, lien, adverse claim, equity or other
encumbrance.
iv. The authorized and outstanding capital stock of the Company
is as set forth under the caption "Capitalization" in the Offering Memorandum;
and the Company's ownership interest with respect to each of the Designated
Subsidiaries is as described in the Offering Memoran dum.
v. All of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued, and are fully paid and
nonassessable;
vi. The Company has all requisite corporate power and authority
to execute, deliver and perform its obligations under each of the Transaction
Documents and to consummate the transactions contemplated thereby, including,
without limitation, with the corporate power and authority to issue, sell and
deliver the Senior Notes as contemplated by this Agreement and to perform its
obligations hereunder and thereunder.
vii. The Company has the corporate power and authority to enter
into this Agreement and to issue, sell and deliver the Senior Notes to the
Initial Purchasers as provided herein, and this Agreement has been duly
authorized, executed and delivered by the Company and is a valid, legal and
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except as enforcement of rights to indemnity and contribution
hereunder and thereunder may be limited by federal or state securities laws or
principles of public policy and subject to the qualification that the
enforceability of the Company's obligations hereunder and thereunder may be
limited by bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium, and other laws relating to or affecting creditors' rights generally
and by general principles of equity, regardless of whether enforcement is sought
in a proceeding at law or in equity;
viii. The Company has the corporate power and authority to
execute, deliver and perform its respective obligations under the Senior Notes;
ix. The Senior Notes and the Indenture have been duly
authorized, executed and delivered by the Company;
x. The Company has duly and validly authorized, executed and
delivered the Indenture and the Supplemental Indentures and (assuming the due
authorization, execution and delivery thereof by the Trustee) the Indenture and
the Supplemental Indentures are valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their terms, except
(A) as such enforcement may be limited by (y) bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights and remedies generally, or (z) general principles of equity, regardless
of whether enforcement is sought in a proceeding at law or in equity, and (B) to
the extent that a waiver of rights under any usury laws may be unenforceable.
The Indenture and the Supplemental Indentures conform as to legal matters in all
material respects to the summary description thereof in the Offering Memorandum.
20
xi. The Senior Notes have been duly and validly authorized for
issuance and sale to the Initial Purchasers by the Company pursuant to this
Agreement and, when issued and authenti cated in accordance with the terms of
the Indenture and delivered against payment therefor in accordance with the
terms hereof, will be the valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms and entitled to
the benefits of the Indenture, except (A) as such enforcement may be limited by
(y) bankruptcy, fraudulent conveyance, insolvency, reorganiza tion, moratorium
or similar laws affecting creditors' rights and remedies generally, or (z)
general principles of equity, regardless of whether enforcement is sought in a
proceeding at law or in equity, and (B) to the extent that a waiver of rights
under any usury laws may be unenforceable. The Senior Notes, when issued,
authenticated and delivered, will conform as to legal matters in all material
respects to the summary description thereof in the Offering Memorandum.
xii. The Exchange Notes have been duly and validly authorized
for issuance by the Company and, when issued and authenticated in accordance
with the terms of the Indenture and the Registration Rights Agreement, will be
valid and legally binding obligations of the Company, enforceable against the
Company in accordance with their terms and entitled to the benefits of the
Indenture, except (A) as such enforcement may be limited by (y) bankruptcy,
fraudulent conveyance, insolvency, reorganiza tion, moratorium or similar laws
affecting creditors' rights and remedies generally, or (z) general principles of
equity, regardless of whether enforcement is sought in a proceeding at law or in
equity, and (B) to the extent that a waiver of rights under any usury laws may
be unenforceable.
xiii. The Registration Rights Agreement has been duly and
validly authorized, executed and delivered by the Company, and is a valid and
legally binding obligation of the Company, enforceable against the Company in
accordance with its terms, except (A) as such enforcement may be limited by (y)
bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights and remedies generally and (z) general
principles of equity, regardless of whether enforcement is sought in a
proceeding at law or in equity and (B) such counsel need express no opinion as
to the enforceability of the indemnification or contribution provisions
contained in Section 7 of the Registration Rights Agreement. The Registration
Rights Agreement conforms, as to legal matters, in all material respects to the
summary description thereof in the Offering Memorandum.
xiv. When the Senior Notes are issued and delivered pursuant to
this Agreement, none of the Senior Notes will be of the same class (within the
meaning of Rule 144A under the Act) as securities of the Company that are listed
on a national securities exchange registered under Section 6 of the Exchange Act
or that are quoted in a United States automated inter-dealer quotation system.
xv. Neither the Company nor any of the Designated Subsidiaries
nor any U.S. Subsidiary is in violation of its respective certificate or
articles of incorporation or bylaws, or other organization documents, or to the
best knowledge of such counsel after reasonable inquiry, is in material default
ir the performance of any obligation, agreement or condition contained in any
permit or any bond, debenture, note or other evidence of indebtedness, except as
may be disclosed in the Offering Memorandum;
21
xvi. Registration of the Senior Notes under the Act or
qualification of the Indenture under the Trust Indenture Act of 1939, as
amended, is not required in connection with the offer, sale and delivery of the
Senior Notes to the Initial Purchasers or the initial placement of the Senior
Notes by the Purchaser pursuant to the terms of this Agreement, it being
understood that in rendering this opinion such counsel may assume the accuracy
of the representations of the Purchaser and the Company contained herein and
that the offer, sale and delivery of the Senior Notes have been made as
contemplated by this Agreement and the Offering Memorandum.
xvii. The execution, delivery and performance by the Company of
each of the Transaction Documents, the issuance and sale of the Senior Notes,
and the consummation of the transac tions contemplated hereby and thereby, will
not violate, conflict with or constitute a breach of any of the terms or
provisions of, or a default (or an event that with notice or the lapse of time,
or both, would constitute a default) under, or require consent under, or result
in the imposition of a lien or encumbrance on any assets or properties of the
Company or any of its subsidiaries, or an acceleration of indebtedness pursuant
to, (A) the organizational documents of the Company or any of its subsidiaries,
(B) any bond, debenture, note, indenture, mortgage, deed of trust, license or
other agreement or instrument, known to such counsel after reasonable inquiry,
to which the Company or any of its subsidiaries is a party or by which any of
them or their property is or may be bound, (C) any U.S. law, statute, rule or
regulation applicable to the Company, any of the U.S. Subsidiaries or any of
their assets or properties, or (D) any judgment, order or decree of any U.S.
court or governmental agency or U.S. authority, known to such counsel after
reasonable inquiry, having jurisdiction over the Company, any of the U.S.
Subsidiaries or their assets or properties, except such conflicts or violations
as would not individually or in the aggregate be reasonably expected to have a
Material Adverse Effect. No consent, approval, authorization or order of, or
filing, registration, qualification, license or permit of or with, any court or
governmental agency, body or administrative agency in the United States is
required for the execution, delivery and performance of this Agreement or the
other Transaction Documents, except (subject to clause (xvi) above) such as have
been obtained prior to the date hereof (or, in the case of the Registration
Rights Agreement, are planned to be obtained or made under the Act, the Trust
Indenture Act and state securities or Blue Sky laws and regulations or such as
may be required by the NASD). In rendering the opinions required in this clause
(xvii), such counsel may rely on the accuracy of the representations of the
Initial Purchasers and the Company contained in this Agreement. No consents or
waivers from any other person are required for the execution, delivery and
performance of this Agreement and the other Transaction Documents and the
consummation of the transactions contemplated hereby and thereby, other than
such consents and waivers as have been obtained, or except where the failure to
obtain such consents or waivers would not individu ally or in the aggregate be
reasonably expected to have a Material Adverse Effect.
xviii. To the best knowledge of such counsel, after reasonable
inquiry, no action has been taken and no statute, rule or regulation or order
has been enacted, adopted or issued by any U.S. governmental agency that
prevents the issuance of the Senior Notes, no injunction, restraining order or
order of any nature by a United States federal or state court of competent
jurisdiction has been issued that prevents the issuance of the Senior Notes and
no action, suit or proceeding is pending against or affecting or threatened
against the Company or any of the U.S. Subsidiaries before any court or
arbitrator or any governmental body, agency or official which, if adversely
determined, would prohibit, interfere with or adversely affect the issuance or
22
marketability of the Senior Notes or in any manner draw into question the
validity of any Transaction Document.
xix. To the best knowledge of such counsel after reasonable
inquiry, neither the Company nor any of the U.S. Subsidiaries is in violation of
any law, ordinance, administrative or other governmental rule or regulation
applicable to the Company or any of the U.S. Subsidiaries or any of the U.S.
Subsidiaries or of any decree of any court or governmental agency or body having
jurisdiction over the Company or any of the U.S. Subsidiaries or any of the U.S.
Subsidiaries, except for such violations as would not individually or in the
aggregate be reasonably likely to have a Material Adverse Effect.
xx. The statements in the Offering Memorandum, insofar as they
are descriptions of contracts, agreements or other legal documents, or refer to
statements of law or legal conclusions, are accurate and complete in all
material respects and present fairly the information required to be shown, to
the extent governed by the laws of jurisdictions on which such counsel expresses
an opinion;
xxi. Each of the Company and each Designated Subsidiary and
each U.S. Subsidiary has all necessary governmental authorizations, approvals,
orders, licenses, certificates, franchises and permits of and from all
governmental regulatory officials and bodies (except where the failure so to
have any such authorizations, approvals, orders, licenses, certificates,
franchises or permits, individually or in the aggregate, would not have a
Material Adverse Effect), to own its properties and to conduct its businesses as
now being conducted, as described in the Offering Memorandum;
xxii. Neither the Company nor any of its subsidiaries is now,
nor, after the sale of Senior Notes to be sold by it hereunder and the
application of the proceeds from such sales as described in the Offering
Memorandum under the caption "Use of Proceeds," will they be (i) an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act, or (ii) a "holding company" or a "subsidiary
company" or an "affiliate" of a holding company within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
xxiii. There is (A) to the knowledge of such counsel, after
reasonable inquiry, no legal, regulatory or governmental action, suit or
proceeding before or by any court, arbitrator or governmental agency, body or
official, domestic or foreign, now pending or, to the knowledge of such counsel,
threatened or contemplated to which the Company or any of the U.S. Subsidiaries
is a party or to which the business or property of the Company or any of the
U.S. Subsidiaries is subject, (B) no law, statute, rule, regulation or order
that has been enacted, adopted or issued by any governmental agency or that has
been proposed by any governmental body, to the extent governed by the laws of
jurisdictions on which such counsel expresses an opinion, (C) to the knowledge
of such counsel, after reasonable inquiry, no injunction, restraining order or
order of any nature by a federal or state court of competent jurisdiction to
which the Company or any of the U.S. Subsidiaries is subject issued that, in the
case of clauses (A), (B) and (C) above, (x) might, singly or in the aggregate,
result in a Material Adverse Effect, (y) would interfere with or adversely
affect the issuance of the Senior Notes or (z) in any manner draw into question
the validity of this Agreement or the other Transaction Documents.
23
xxiv. To the best knowledge of such counsel, there are no
holders of debt securities of the Company who, by reason of the execution by the
Company of this Agreement or any other Transaction Document or the consummation
of the transactions contemplated hereby or thereby, have the right to request or
demand that the Company register debt securities of the Company under the Act or
analogous foreign laws and regulations securities held by them.
xxv. The Offering Memorandum, as of its date, and each
amendment or supplement thereto, if any, as of its date (except for the
financial statements, including the notes thereto, and supporting schedules and
other financial, statistical, and accounting data included therein or omitted
therefrom, as to which no opinion need be expressed), contains all the
information specified in, and meeting all the requirements of, Rule l44A(d)(4)
under the Act.
xxvi. To the best knowledge of such counsel after reasonable
inquiry, except as described in the Offering Memorandum, there are no
outstanding options, warrants or other rights calling for the issuance of, and
such counsel does not know of any commitment, plan or arrangements to issue, any
shares of capital stock of the Company or any security convertible into or
exchangeable or exercisable for capital stock of the Company;
xxvii. Neither the Company nor any of its subsidiaries is now,
nor, after the sale of Senior Notes to be sold by it hereunder and the
application of the proceeds from such sales as described in the Offering
Memorandum under the caption "Use of Proceeds," will they be (i) an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act, or (ii) a "holding company" or a "subsidiary
company" or an "affiliate" of a holding company within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
xxviii. To the best knowledge of such counsel after reasonable
inquiry, except as described in, or incorporated by reference into, the Offering
Memorandum there are no outstanding options, warrants or other rights calling
for the issuance of, and such counsel does not know of any commitment, plan or
arrangement to issue, any shares of capital stock of the Company or any security
convertible into or exchangeable or exercisable for capital stock of the
Company;
xxix. To the best knowledge of such counsel after reasonable
inquiry, except as described in, or incorporated by reference into, the Offering
Memorandum, there is no holder of any security of the Company or any other
person (other than the Initial Purchasers) who has the right, contractual or
otherwise, to cause the Company to sell or otherwise issue to them, or to permit
them to underwrite the sale of, the Notes or the right to have any other
securities of the Company included in the Offering Memorandum or the right, to
require registration under the Act of any securities of the Company;
xxx. The issuance and sale of the Notes pursuant to the terms
of this Agreement will not violate Regulation G (12 C.F.R. Part 207), Regulation
T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or Regulation X (12
C.F.R. Part 224) of the Board of Governors of the Federal Reserve System;
24
xxxi. The statements in the Offering Memorandum under "Risk
Factors -International Tax Risks," and "-Original Issue Discount Consequences"
insofar as they constitute statements of law or legal conclusions are accurate
in all material respects;
xxxii. (A) The Company has the requisite corporate power and
authority to create, deliver and perfect the security interests created under
the Pledge Agreements; (B) the Pledge Agreements have been duly authorized,
executed and delivered by the Company and constitute valid and legally binding
obligations of the Company, enforceable against it in accordance with their
terms, subject to the qualification that the enforceability of the Company's
obligations hereunder and thereunder may be limited by (I) bankruptcy,
fraudulent conveyance, insolvency, reorganization, moratorium, and other laws
relating to or affecting creditors' rights generally and by general equitable
principles, (2) public policy concerns that may render unenforceable the
effectiveness of waivers of trial by jury in the Pledge Agreements or any choice
of jurisdiction or venue provision and (3) other remedial provisions of law that
do not materially interfere with the practical realization of the benefits or
remedies reasonably contemplated by the Pledge Agreements and (C) after giving
effect to, and as a result of, the execution and delivery of the Pledge
Agreements and assuming the Collateral Agent is holding the Collateral including
certificates representing the Collateral in the State of New York, the Pledge
Agreements create a valid and perfected security interest in the Collateral in
favor of the Collateral Agent, on behalf and for the benefit of the holders of
the Notes, subject to no other consensual security interest in favor of any
other person (other than as contemplated by the Offering Memorandum), and no
filings or recordings will be required in order to perfect or maintain the
security interests created under the Pledge Agreement in such Collateral; and
xxxiii. The Company is the owner of record of all of the
outstanding Capital Stock or other securities evidencing equity ownership of
UIPI and JVI, free and clear, to the best knowledge of such counsel after
reasonable inquiry, of any security interest, claim, lien or encum brance
(except for the pledge pursuant to the Pledge Agreement securing obligations
under the Existing Indentures and the Indenture); and all of such securities
have been duly authorized, validly issued and are fully paid and nonassessable.
To the best knowledge of such counsel, there are no outstanding rights, warrants
or options to acquire, or instruments convertible into or exchangeable for, any
such shares of capital stock or other equity interest of UIPI or JVI.
In addition, such counsel shall state that it has generally
reviewed and discussed with certain officers and other representatives of the
Company, representatives of the independent public accountants for the Company,
your representatives and your counsel the preparation of the Offering Memorandum
and the statements contained therein and, although such counsel has not
independently verified the accuracy, completeness or fairness of such statements
(except as indicated above), such counsel advises you that, on the basis of the
foregoing, no facts came to its attention that caused it to believe that the
Offering Memorandum (as amended or supplemented, if applicable) as of the date
of the Offering Memorandum or at the Closing Date, contained or contains an
untrue statement of a material fact or omitted or omits 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. Without limiting the
foregoing, such counsel may further state that they assume no responsibility
for, and have not independently verified, the accuracy, completeness or fairness
25
of, and express no view as to, the financial statements, notes and schedules and
other financial or statistical data included in the Offering Memorandum.
Such opinion may be limited to the federal laws of the United
States and the internal laws of the State of Colorado and the General
Corporation Law of the State of Delaware. In rendering their opinion as
aforesaid, counsel may rely upon an opinion or opinions, each dated the Closing
Date, of other counsel retained by them or the Company as to laws of any
jurisdiction other than the United States or the State of Colorado, provided
that (1) each-such local counsel is acceptable to the Initial Purchasers, (2)
such reliance is expressly authorized by each opinion so relied upon and a copy
of each such opinion is delivered to the Initial Purchasers and is in form and
substance satisfactory to it and its counsel, and (3) counsel shall state in
their opinion that they believe that they and the Initial Purchasers are
justified in relying thereon.
f. The Initial Purchasers shall have received on the Closing Date
the opinions of Stibbe Simont Xxxxxxx Duhot (with respect to UPC,A2000, KTA,
KTH, KTE and the laws of The Netherlands), Heller, Lober, Bahn & Partners (with
regard to the Telekabel Group and the laws of Austria), Stibbe Simont Xxxxxxx
Xxxxx (with regard to Radio Public and the laws of Belgium, Advokatfirmaet
Steestup (with regard to Norkabel and Xxxxx and the laws of Norway), Xxxxxxxx
Hollingdale & Page (with regard to Austar and the laws of Australia), Xxxxx y
Cia Ltda. (with regard to VTR Hipercable and the laws of Chile), each dated the
Closing Date and addressed to the Initial Purchasers, substantially to the
effect that:
i. The statements in the Offering Memorandum, insofar as they
are descriptions of contracts, agreements or other legal documents, or refer to
statements of law or legal conclusions, are accurate and complete in all
material respects and present fairly the information purported to be shown, and
the descriptions of the applicable government regulations in each of such
countries are accurate and complete in all material respects;
ii. Each of UPC, the Telekabel Group companies, Radio Public,
Xxxxxxxx, Xxxxx, XXX, XXX, XXX, X0000, CTV Pty. Ltd. and STV Pty. Ltd
("CTV/STV"), Cablevision, STX and VTR Hipercable (collectively, the "Foreign
Subsidiaries") is a corporation or other legal entity duly organized and validly
existing in good standing under the laws of the jurisdiction of its formation,
with full power and authority to own, lease, and operate its properties and to
conduct its business as described in the Offering Memorandum, (and any amendment
or supplement thereto); and all the outstanding shares of capital stock or other
equity interest of each of the Foreign Subsidiar ies have been duly authorized
and validly issued, are fully paid and nonassessable and, except as set forth in
the Offering Memorandum, are owned by the Company directly, or indirectly
through one of the Subsidiaries, free and clear, to the best knowledge of such
counsel after reasonable inquiry, of any security interest, lien, adverse claim,
equity or other encumbrance;
iii. The Company's ownership interest with respect to each of
the Foreign Subsidiaries is as described in the Offering Memorandum;
26
iv. None of the Foreign Subsidiaries is in violation of its
respective certificate or articles of incorporation or bylaws, or other
organizational documents; to the best knowledge of such counsel after reasonable
inquiry, neither the Company nor any of the Foreign Subsidiaries is in material
default in the performance of any obligation, agreement or condition contained
in any permit or any bond, debenture, note or other evidence of indebtedness,
except as may be disclosed in the Offering Memorandum;
v. Neither the offer, sale or delivery of the Notes, the
execution, delivery or performance of this Agreement, compliance by the Company
with the provisions hereof and consummation by the Company of the transactions
contemplated hereby conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, the certificate or articles of
incorpora tion or bylaws, or other organizational documents, of any of the
Foreign Subsidiaries or any agreement indenture, lease or other instrument to
which the Company or any of the Foreign Subsidiaries is a party or by which any
of them or any of their respective properties is bound that is known to such
counsel after reasonable inquiry, or, to the best knowledge of such counsel
after reasonable inquiry, will result in the creation or imposition of any
material lien charge or encumbrance upon any property or assets of the Company
or any of the Foreign Subsidiaries nor will any such action result in any
violation of any existing law, regulation, ruling (assuming compliance with all
applicable state securities and Blue Sky laws), judgment, injunction, order or
decree known to such counsel after reasonable inquiry, applicable to the Company
or the Foreign Subsidiaries or any of their respective properties, except where
such violation would not have a Material Adverse Effect;
vi. No consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body, administrative agency
or other governmental body, agency, or official is required on the part of the
Company or any Foreign Subsidiary (except as may be required under state
securities or Blue Sky law governing the purchase and distribution of the Notes)
for the valid issuance and sale of the Notes to the Initial Purchasers as
contemplated by this Agreement;
vii. To the best knowledge of such counsel after reasonable
inquiry, neither the Company nor any of the Foreign Subsidiaries is in violation
of any law, ordinance administrative or governmental rule or regulation
applicable to the Company or any of the Foreign Subsidiaries of any decree of
any court or governmental agency or body having jurisdiction over the Company or
any of the Foreign Subsidiaries, except where such violation would no have a
Material Adverse Effect;
viii. Each of the Company and each Foreign Subsidiary has all
necessary governmental authorizations, approvals, orders, licenses,
certificates, franchises and permits of and from all governmental regulatory
officials and bodies (except where the failure so to have any such
authorizations, approvals, orders, licenses, certificates, franchises or
permits, individually or in the aggregate, would not have a Material Adverse
Effect) to own its properties and to conduct its businesses as now being
conducted, as described in the Offering Memorandum; and
ix. Each of the Company and each Foreign Subsidiary owns all
licenses and rights described in the Offering Memorandum as being owned by the
Company or the Foreign Subsidiaries and necessary for the conduct of its
businesses, and such counsel is not aware of any claim to the contrary or any
27
challenge by any other person to the rights of the Company or any Foreign
Subsidiary with respect to the foregoing.
g. The Initial Purchasers shall have received on the Closing Date
an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Initial
Purchasers, dated the Closing Date and addressed to you, in form and substance
reasonably satisfactory to the Initial Purchasers.
h. The Initial Purchasers shall have received letters
addressed to the Initial Purchasers and dated the date hereof and the Closing
Date from Xxxxxx Xxxxxxxx LLP, and KPMG Accountants N.V., and others all of
which are independent public accountants, substantially in the forms heretofore
approved by the Initial Purchasers.
i. (i) There shall not have been any change in the capital stock
of the Company (other than as a result of the issuance of shares of Class A
Common Stock of the Company upon the exercise of outstanding warrants or stock
options or upon conversion of shares of Class B Common Stock of the Company) nor
any material increase in the short-term or long-term debt of the Company (other
than in the ordinary course of business) from that set forth or contemplated in
the Offering Memorandum (or any amendment or supplement thereto); (ii) there
shall not have been, since the respective dates as of which information is given
in the Offering Memorandum, (or any amendment or supplement thereto), except as
may otherwise be stated in the Offering Memorandum (or any amendment or
supplement thereto), any material adverse change in the condition (financial or
other), business, prospects, properties, net worth or results of operations of
the Company and the Subsidiaries taken as a whole; (iii) the Company, the
Subsidiaries shall not have any liabilities or obligations, direct or contingent
(whether or not in the ordinary course of business), that are material to the
Company and the Subsidiaries taken as a whole, other than those reflected in the
Offering Memorandum (or any amendment or supplement thereto); and (iv) all the
representations and warranties of the Company contained in this Agreement shall
be true and correct on and as of the date hereof and on and as of the Closing
Date as if made on and as of the Closing Date, and you shall have received a
certificate, dated the Closing Date and signed by the chief executive officer
and the chief financial officer of the Company (or such other officers as are
acceptable to you), to the effect set forth in this Section 7(i).
j. The Company shall not have failed at or prior to the Closing
Date to have performed or complied with any of its agreements herein contained
and required to be performed or complied with by it hereunder at or prior to the
Closing Date.
k. The Company shall have furnished or caused to be furnished to
you such further certificates and documents as you shall have requested.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to the Initial Purchasers and your counsel.
28
Any certificate or document signed by any officer of the Company and
delivered to the Initial Purchasers, or counsel for the Initial Purchasers,
shall be deemed a representation and warranty by the Company to the Initial
Purchasers as to the statements made therein.
8. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become effective
upon the execution hereof.
9. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in the absolute discretion of the Initial Purchasers, without
liability on the part of the Initial Purchaser to the Company, by notice to the
Company, if prior the Closing Date, (i) trading in securities generally on the
New York Stock Exchange, American Stock Exchange or Nasdaq National Market shall
have been suspended or materially limited, (ii) general moratorium on commercial
banking activities in New York or Colorado shall have been declared by either
federal or state authorities, or (iii) there shall have occurred any outbreak or
escalation of hostile or other international or domestic calamity, crisis or
change in political, financial or economic condition the effect of which on the
financial markets of the United States is such as to make it, in the judgement
of the Initial Purchasers impracticable or inadvisable to commence or continue
the offering of the Senior Notes at the offering price set forth on the cover
page of the Offering Memorandum, or to enforce contracts for the resale of the
Notes by the Initial Purchasers. Notice of such termination may be given to the
Company by telegram, telecopy telephone and shall be subsequently confirmed by
letter.
If on the Closing Date any one or more of the Initial Purchasers shall
fail or refuse to purchase the Senior Notes which it or they have agreed to
purchase hereunder on such date and the aggregate number of Senior Notes which
such defaulting Initial Purchaser or Initial Purchasers, as the case may be,
agreed but failed or refused to purchase is not more than one-tenth of the total
number of Senior Notes to be purchased on such date by all Initial Purchasers,
each non-defaulting Initial Purchaser shall be obligated severally, in the
proportion which the number of Senior Notes set forth opposite its name in
Exhibit B bears to the total number of Senior Notes which all the non-defaulting
Initial Purchasers, as the case may be, have agreed to purchase, or in such
other proportion as the Initial Purchasers may specify, to purchase the Senior
Notes which such defaulting Initial Purchaser or Initial Purchasers, as the case
may be, agreed but failed or refused to purchase on such date; PROVIDED that in
no event shall the number of Senior Notes which any Initial Purchaser has agreed
to purchase pursuant to Section 2 hereof be increased pursuant to this Section 9
by an amount in excess of one-ninth of such number of Senior Notes without the
written consent of such Initial Purchaser. If on the Closing Date any Initial
Purchaser or Initial Purchasers shall fail or refuse to purchase Senior Notes
and the aggregate number of Senior Notes with respect to which such default
occurs is more than one-tenth of the aggregate number of Senior Notes to be
purchased on such date by all Initial Purchasers, and arrangements satisfactory
to the Initial Purchasers and the Company for purchase of such Senior Notes are
not made within 48 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Initial Purchasers and the
Company. In any such case which does not result in termination of this
Agreement, either the Initial Purchasers or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Offering Memorandum or any other
documents or arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Initial Purchaser from liability in respect of
any such Initial Purchaser under this Agreement.
29
10. MISCELLANEOUS. Except as otherwise provided in Sections 4 and 9
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to Company, at the office of the Company
at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, Attention: Chief Financial
Officer; or (ii) if to the Initial Purchasers, care of Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
This Agreement has been and is made solely for the benefit of the
Initial Purchasers, the Company, its directors and officers, and the other
controlling persons referred to in Section 6 hereof and the respective
successors and assigns, to the extent provided herein, and no other person shall
acquire or have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from the Initial Purchasers of any of the Senior Notes
in his status as such purchaser.
11. APPLICABLE LAW: COUNTERPARTS. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AS APPLIED TO
CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, EXCLUDING
(TO THE GREATEST EXTENT PERMISSIBLE BY LAW) ANY RULE OF LAW THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY NEW
YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR
ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN
RESPECT OF ANY SUIT, ACTION OR PROCEEDING RELATED TO THIS AGREEMENT OR ANY OF
THE MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF
PERSONAL JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY
SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. THE
COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY
CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
30
Please confirm that the foregoing correctly sets forth the agreement
between the Company the Initial Purchasers.
Very truly yours,
UNITED INTERNATIONAL HOLDINGS, INC.
By: /s/ J. Xxxxxxx Xxxxx
-------------------------------------
Name: J. Xxxxxxx Xxxxx
Title: Chief Financial Officer
The foregoing Note Purchase Agreement is hereby
confirmed and accepted as of the date first
above mentioned.
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
XXXXXX XXXXXXX XXXX XXXXXX
XX SECURITIES (USA) INC.
By: XXXXXXXXX,LUFKIN & XXXXXXXX
SECURITIES CORPORATION
BY: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Sr Vice President
31
EXHIBIT A
Registration Rights Agreement
32
EXHIBIT B
INITIAL PURCHASER PRINCIPAL AMOUNT AT MATURITY
----------------- ----------------------------
Xxxxxxxxx Lufkin & Xxxxxxxx
Securities Corporation $ 756,250,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated $ 206,250,000
Xxxxxx Xxxxxxx Xxxx Xxxxxx $ 206,250,000
TD Securities (USA) Inc. $ 206,250,000
TOTAL $1,375,000,000
33
