10% Senior Notes due 2016
Guaranteed by the Guarantors Named
Herein
Morgan Stanley
& Co. Incorporated
1585 Broadway
New York, New York 10036
J.P. Morgan
Securities Inc.
270 Park Avenue
New York, New York 10017
NII Capital Corp.,
a Delaware corporation (the “ Company ”),
proposes to issue and sell to the several parties named in
Schedule I hereto (the “ Initial Purchasers
”) $800,000,000 principal amount of its 10% Senior Notes due
2016 (the “ Notes ”) to be issued pursuant to
the provisions of an Indenture to be dated as of August 18,
2009 (the “ Indenture ”) among the Company, NII
Holdings, Inc. (the “ Parent ”) and the entities
listed on Schedule III hereto as guarantors (collectively, and
together with Parent, the “ Guarantors ”) and
Wilmington Trust Company, as trustee (the “ Trustee
”), and jointly and severally guaranteed on a senior
unsecured basis by the Guarantors (the “ Guarantees
,” and, together with the Notes, the “
Securities ”).
The Securities
will be offered without being registered under the Securities Act
of 1933, as amended (the “ Securities Act ”), to
qualified institutional buyers in compliance with the exemption
from registration provided by Rule 144A under the Securities
Act and in offshore transactions in reliance on Regulation S
under the Securities Act (“ Regulation S
”).
The Initial
Purchasers and their direct and indirect transferees will be
entitled to the benefits of a Registration Rights Agreement dated
as of the Closing Date (as defined herein) among the Company, the
Guarantors and the Initial Purchasers (the “ Registration
Rights Agreement ”).
In connection with
the sale of the Securities, the Company and the Guarantors have
prepared a preliminary offering memorandum (the “
Preliminary Memorandum ”) and will prepare a final
offering memorandum (the “ Final Memorandum ”)
including or incorporating by reference a description of the terms
of the Securities, the terms of the offering and a description of
the Company and the Guarantors. For purposes of this Agreement,
“ Additional Written Offering Communication ”
means any written communication (as defined in Rule 405 under
the Securities Act) that constitutes an offer to sell or a
solicitation of an offer to buy the Securities other than the
Preliminary Memorandum or the Final Memorandum, and “ Time
of Sale Memorandum ” means the Preliminary
Memorandum
together with the Additional Written Offering Communications, if
any, each identified in Schedule IV(a) hereto. As used herein,
the terms Preliminary Memorandum, Time of Sale Memorandum and Final
Memorandum shall include the documents, if any, incorporated by
reference therein. For purposes of this Agreement, the term “
Applicable Time ” is 2:43 p.m. on August 13,
2009. The terms “ supplement ,” “
amendment ” and “ amend ” as used
herein with respect to the Preliminary Memorandum, the Time of Sale
Memorandum, the Final Memorandum or any Additional Written Offering
Communications shall include all documents subsequently filed by
the Parent with the Securities and Exchange Commission (the “
Commission ”) pursuant to the Securities Exchange Act
of 1934, as amended (the “ Exchange Act ”), that
are deemed to be incorporated by reference therein.
1.
Representations and Warranties . Each of the Company and the
Guarantors, jointly and severally, represents and warrants to, and
agrees with, you that:
(a) (i) Each
document, if any, filed or to be filed pursuant to the Exchange Act
and incorporated by reference in the Preliminary Memorandum, the
Time of Sale Memorandum or the Final Memorandum complied or will
comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission
thereunder, (ii) the Time of Sale Memorandum does not, and at
the time of each sale of the Securities in connection with the
offering when the Final Memorandum is not yet available to
prospective purchasers and at the Applicable Time and on the
Closing Date (as defined in Section 4), the Time of Sale
Memorandum, as then amended or supplemented by the Parent or the
Company, if applicable, will not, contain any untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading, (iii) none of the
Additional Written Offering Communications, including without
limitation any electronic roadshow, identified in
Schedule IV(b) hereto conflict with the information contained
in the Time of Sale Memorandum or the Final Memorandum and each
such Additional Written Offering Communication, as supplemented by
and taken together with the Time of Sale Memorandum, as of the
Applicable Time, did not include any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, and (iv) the Final Memorandum,
in the form used by the Initial Purchasers to confirm sales and on
the Closing Date (as defined in Section 4), will not contain
any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were
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made, not
misleading, except that the representations and warranties set
forth in this paragraph do not apply to statements or omissions in
the Time of Sale Memorandum or the Final Memorandum based upon
information relating to any Initial Purchaser furnished to the
Company or the Parent in writing by such Initial Purchaser through
you expressly for use therein.
(b) Except for the
Additional Written Offering Communications, if any, identified in
Schedule IV hereto, and electronic roadshows, if any,
furnished to you before first use, the Company and the Guarantors
have not used or referred to, and will not, without your prior
consent, use or refer to, any Additional Written Offering
Communication.
(c) Each of the
Parent and the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as
described in the Time of Sale Memorandum and the Final Memorandum
and is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the
Parent, the Company and the subsidiaries of the Parent listed on
Schedule II (each, a “ Subsidiary ” and
collectively, the “ Subsidiaries ”), taken as a
whole (a “ Material Adverse Effect
”).
(d) Each of the
Subsidiaries has been duly organized, is validly existing as a
corporation or limited liability company, as the case may be, in
good standing under the laws of the jurisdiction of its
incorporation or organization (to the extent that such jurisdiction
recognizes the legal concept of good standing), has the power and
authority to own its property and to conduct its business as
described in the Time of Sale Memorandum and the Final Memorandum
and is duly qualified to transact business and is in good standing
in each jurisdiction (to the extent that such jurisdiction
recognizes the legal concept of good standing) in which the conduct
of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a Material Adverse
Effect. All of the issued shares of capital stock, membership
interests or equity interests, as the case may be, of the Company
and each Subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable (to the extent that such
jurisdiction recognizes the legal concept of non-assessability) and
except as set forth on Schedule II are owned directly or
indirectly by the Parent and, except as described on
Schedule II or in the Time of Sale Memorandum and the Final
Memorandum, are free and clear of all liens, encumbrances, equities
or claims. The Subsidiaries listed on
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Schedule II are all of the subsidiaries of
the Parent other than the Company and inactive
subsidiaries.
(e) This Agreement
has been duly authorized, executed and delivered by the Company and
the Guarantors.
(f) The Parent has
an authorized capitalization as set forth in the Time of Sale
Memorandum and the Final Memorandum and all of the issued and
outstanding shares of capital stock of the Parent have been duly
authorized and are validly issued, fully paid and
non-assessable.
(g) The Notes have
been duly authorized by the Company and, when executed and
authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Initial Purchasers in
accordance with the terms of this Agreement, will be valid and
binding obligations of the Company, enforceable in accordance with
their terms, subject to the effects of applicable bankruptcy,
insolvency, fraudulent conveyance and similar laws affecting
creditors’ rights generally and equitable principles of
general applicability, and the registered holders of the Securities
will be entitled to the benefits of the Indenture and the
Registration Rights Agreement.
(h) The Guarantee
by each Guarantor set forth in the Indenture has been duly
authorized by such Guarantor and, when the Indenture has been
executed and delivered by the parties thereto as of the Closing
Date and the Securities have been delivered to and paid for by the
Initial Purchasers in accordance with the terms of this Agreement,
will be a valid and binding obligation of such Guarantor,
enforceable in accordance with its terms, subject to the effects of
applicable bankruptcy, insolvency, fraudulent conveyance and
similar laws affecting creditors’ rights generally and
equitable principles of general applicability.
(i) Each of the
Indenture and the Registration Rights Agreement has been duly
authorized by the Company and each Guarantor and, when executed and
delivered by the parties thereto as of the Closing Date (as defined
in Section 4), will be a valid and binding agreement of the
Company and each Guarantor enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance or similar laws affecting creditors’ rights
generally and general principles of equity and except as rights to
indemnification and contribution under the Registration Rights
Agreement may be limited under applicable law.
(j) The execution
and delivery by the Company and each Guarantor of, and the
performance by the Company and each Guarantor of
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their
respective obligations under, this Agreement, the Indenture, the
Registration Rights Agreement and the Securities will not
contravene any provision of (i) applicable law, (ii) the
certificate of incorporation or by-laws of the Company and the
Guarantors or (iii) any agreement or other instrument binding
upon the Parent, the Company or any of the Subsidiaries, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Parent, the Company or any Subsidiary,
except, with respect to clauses (i) and (iii), to the extent
that any contravention would not have a Material Adverse Effect. No
consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the
performance by the Company or the Guarantors of their respective
obligations under this Agreement, the Indenture, the Registration
Rights Agreement or the Securities, except such as have been
obtained or may be required by the securities or Blue Sky laws of
the various states in connection with the offer and sale of the
Securities and by federal and state securities laws with respect to
the Company’s and the Guarantors’ obligations under the
Registration Rights Agreement and as to which the failure to so
obtain would not have a material adverse effect on the ability of
the Company or the Guarantors to perform their respective
obligations under this Agreement, the Indenture, the Securities and
the Registration Rights Agreement.
(k) The
consolidated financial statements, together with the related
schedules and notes, incorporated by reference in the Time of Sale
Memorandum and the Final Memorandum present fairly the financial
position of the Parent and its consolidated subsidiaries at the
dates indicated and the consolidated statements of operations,
changes in stockholders’ equity and cash flows of the Parent
and its consolidated subsidiaries for the periods specified
(subject, in the case of unaudited financial statements, to normal
year-end adjustments); and said financial statements have been
prepared in conformity with United States generally accepted
accounting principles (“ U.S. GAAP ”) applied on
a consistent basis throughout the periods involved.
(l) There has not
occurred any material adverse change, or any development involving
a prospective material adverse change, in the condition, financial
or otherwise, or in the earnings, business or operations of the
Parent, the Company and the Subsidiaries, taken as a whole, from
that set forth in the Time of Sale Memorandum provided to
prospective purchasers of the Securities (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement).
(m) There are no
legal or governmental proceedings pending or, to the Parent’s
knowledge, threatened to which the Parent, the Company
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or any of the
Subsidiaries is a party or to which any of the properties of the
Parent, the Company or any of the Subsidiaries is subject, other
than proceedings accurately described in the Time of Sale
Memorandum, that would have a material adverse effect on the power
or ability of the Company or the Guarantors to perform their
respective obligations under this Agreement, the Indenture, the
Registration Rights Agreement or the Securities or to consummate
the transactions contemplated by the Time of Sale
Memorandum.
(n) The Parent,
the Company and the Subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (“ Environmental Laws
”), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses
or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly
or in the aggregate, have a Material Adverse Effect.
(o) To the
knowledge of the Parent, there are no costs or liabilities
associated with Environmental Laws (including, without limitation,
any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any
permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties) which
would, singly or in the aggregate, have a Material Adverse
Effect.
(p) None of the
Company or any of the Guarantors is, or after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in each of the Time of Sale
Memorandum and the Final Memorandum, will be, required to register
as an “investment company” as such term is defined in
the Investment Company Act of 1940, as amended.
(q) None of the
Parent, the Company or any of the Subsidiaries is in violation of
its certificate of incorporation or by-laws (or comparable
corporate documents) and none of the Parent, the Company or any of
the Subsidiaries is in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which
the Parent, the Company or any of
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the
Subsidiaries is a party or by which it or any of them may be bound,
or to which any of the property or assets of the Parent, the
Company or any Subsidiary is subject, except for such violations or
defaults that are described in the Time of Sale Memorandum or would
not result in a Material Adverse Effect.
(r) Subsequent to
the date as of which information is given in the Time of Sale
Memorandum, (i) none of the Parent, the Company or any of the
Subsidiaries has incurred any material liability or obligation,
direct or contingent, nor entered into any material transaction, in
each case, not in the ordinary course of business or not described
in or contemplated by the Time of Sale Memorandum; (ii) the
Parent has not purchased any of its outstanding capital stock, or
declared, paid or otherwise made any dividend or distribution of
any kind on its capital stock (other than repurchases of unvested
shares of the Parent’s capital stock pursuant to its equity
incentive plans and repurchases described in or contemplated by the
Time of Sale Memorandum); and (iii) there has not been any
material change in the capital stock, short-term debt or long-term
debt of the Company or any Guarantor, except in each case as
described in or contemplated by the Time of Sale
Memorandum.
(s) The Parent,
the Company and the Subsidiaries own or have the right to use, or
can acquire or obtain the right to use on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, “ Intellectual
Property ”) necessary to carry on the business now
operated by them, except where the failure to own or have the right
to use such Intellectual Property would not, singly or in the
aggregate, have a Material Adverse Effect, or except as described
in the Time of Sale Memorandum. None of the Parent, the Company or
any of the Subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of
others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid
or inadequate to protect the interest of the Parent, the Company or
any of the Subsidiaries therein, and which infringement or conflict
(if the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would result
in a Material Adverse Effect.
(t) Except as
described in the Time of Sale Memorandum, each of the Parent, the
Company and the Subsidiaries (i) has all necessary licenses,
consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings, if
any, with
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all federal,
state and local and foreign governmental, administrative or
regulatory authorities and organizations, to own, lease, license
and use its properties and assets and to conduct its business in
the manner described in the Time of Sale Memorandum, including
providing digital enhanced specialized mobile radio services as
currently conducted by them, except to the extent that the failure
to obtain such licenses, consents, authorizations, approvals,
orders, certificates and permits or make such declarations and
filings, if any, would not have a Material Adverse Effect and
(ii) has not received any notice of proceedings relating to
the violation, revocation or modification of any such license,
consent, authorization, approval, order, certificate or permit
which, singly or in the aggregate, if the subject of any
unfavorable decision, ruling or finding, would reasonably be
expected to result in a Material Adverse Effect.
(u)
PricewaterhouseCoopers LLP, who has issued a report with respect to
the financial statements and supporting schedules for the Parent
incorporated by reference in the Time of Sale Memorandum, is an
independent registered public accounting firm as required by the
Securities Act and the rules and regulations of the Commission
thereunder.
(v) The Parent,
the Company and each of the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with U.S. GAAP
and to maintain asset accountability; (iii) access to assets
is permitted only in accordance with management’s general or
specific authorization; and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(w) Except as
disclosed or incorporated by reference in the Time of Sale
Memorandum, the Parent’s internal control over financial
reporting, as determined in Rule 13a-15(f) of the Exchange
Act, were evaluated for effectiveness by management of the Parent
and were determined to be effective as of December 31, 2008,
and since the date of the latest audited financial statements
included in the Time of Sale Memorandum, there has been no change
in the Parent’s internal control over financial reporting
that has materially adversely affected, or is reasonably likely to
materially adversely affect, the Parent’s internal control
over financial reporting.
(x) Except as
disclosed or incorporated by reference in the Time of Sale
Memorandum, the Parent maintains disclosure controls and
8
procedures (as
such term is defined in Rule 13a-15(e) of the Exchange Act)
that have been designed to ensure that information relating to the
Parent and its subsidiaries that is required to be disclosed by the
Parent in the reports that it files or submits under the Exchange
Act is made known to the Parent’s management, including its
principal executive officer and principal financial officer, and by
others within those entities as appropriate to allow timely
decisions regarding required disclosure; such disclosure controls
and procedures were evaluated for effectiveness by management of
the Parent and were determined to be effective as of
December 31, 2008, and since the date of such evaluation,
there have been no significant changes in the disclosure controls
and procedures that are reasonably likely to materially adversely
affect the disclosure controls and procedures.
(y) Except as
disclosed in the Time of Sale Memorandum, the Parent is in
compliance in all material respects with applicable provisions of
the Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith that are effective as of the
date hereof.
(z) None of the
Parent, the Company or any of the Subsidiaries has committed any
act in violation of the Foreign Corrupt Practices Act, as amended,
that would have a Material Adverse Effect.
(aa) Except as
described in the Time of Sale Memorandum and except for the
Registration Rights Agreement, there are no contracts, agreements
or understandings between the Company or any Guarantor and any
person granting such person the right to require the Company or any
Guarantor to file a registration statement under the Securities Act
with respect to any securities of the Company or any Guarantor or
to require the Company or any Guarantor to include such securities
with the Securities registered pursuant to the Registration
Statement (as defined in the Registration Rights Agreement), if
any.
(bb) None of the
Company, the Guarantors or any affiliate (as defined in Rule 501(b)
of Regulation D under the Securities Act, an “
Affiliate ”) of the Company or any Guarantor has
directly, or through any agent, (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any
security (as defined in the Securities Act) which is or will be
integrated with the sale of the Securities in a manner that would
require the registration under the Securities Act of the Securities
or (ii) offered, solicited offers to buy or sold the
Securities by any form of general solicitation or general
advertising (as those terms are used in Regulation D under the
Securities Act) or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act.
9
(cc) None of the
Company, the Guarantors, their Affiliates or any person acting on
its or their behalf (other than the Initial Purchasers) has engaged
or will engage in any directed selling efforts (within the meaning
of Regulation S) with respect to the Securities and the
Company, the Guarantors and their Affiliates and any person acting
on its or their behalf (other than the Initial Purchasers) have
complied and will comply with the offering restrictions requirement
of Regulation S.
(dd) It is not
necessary in connection with the offer, sale and delivery of the
Securities to the Initial Purchasers on the Closing Date (as
defined in Section 4) in the manner contemplated by this
Agreement to register the Securities under the Securities Act or to
qualify the Indenture under the Trust Indenture Act of 1939, as
amended (the “ TIA ”).
(ee) The
Securities satisfy the requirements set forth in
Rule 144A(d)(3) under the Securities Act.
(ff) The
operations of the Parent, the Company and the Subsidiaries are and
have been conducted at all times in material compliance with all
applicable financial recordkeeping and reporting requirements,
including those of the Bank Secrecy Act, as amended by Title III of
the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA
PATRIOT Act), and the applicable anti-money laundering statutes of
jurisdictions where the Parent, the Company and the Subsidiaries
conduct business, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively,
the “ Anti-Money Laundering Laws ”), and no
action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the the
Parent, the Company or any of the Subsidiaries with respect to the
Anti-Money Laundering Laws is pending or, to the knowledge of the
Parent, threatened.
(gg) (i) None
of the Parent, the Company nor any of the Subsidiaries
(collectively, the “ Entity ”) or any director,
officer, employee, agent, affiliate or representative of the
Entity, is an individual or entity (“ Person ”)
that is, or is owned or controlled by a Person that is:
(A) the subject of
any sanctions administered or enforced by the U.S. Department of
Treasury’s Office of Foreign Assets Control (“
OFAC ”) or other relevant sanctions authority
(collectively, “ Sanctions ”), nor
10
(B) located,
organized or resident in a country or territory that is the subject
of Sanctions (including, without limitation, Burma/Myanmar, Cuba,
Iran, North Korea, Sudan and Syria).
(ii) The
Entity represents and covenants that it will not, directly or
indirectly, use the proceeds of the offering, or lend, contribute
or otherwise make available such proceeds to any subsidiary, joint
venture partner or other Person:
(A) to fund or
facilitate any activities or business of or with any Person or in
any country or territory that, at the time of such funding or
facilitation, is the subject of Sanctions; or
(B) in any other
manner that will result in a violation of Sanctions by any Person
(including any Person participating in the offering, whether as
underwriter, advisor, investor or otherwise).
2.
Agreements to Sell and Purchase . Upon the basis of the
representations and warranties of the Initial Purchasers herein
contained, the Company hereby agrees to sell to the several Initial
Purchasers, and each Initial Purchaser, upon the basis of the
representations and warranties of the Company and the Guarantors
herein contained, but subject to the conditions hereinafter stated,
agrees, severally and not jointly, to purchase from the Company the
respective principal amount of Securities set forth in
Schedule I hereto opposite its name at a purchase price of
95.318% of the principal amount thereof (the “ Purchase
Price ”).
3. Terms
of the Offering . You have advised the Company that the Initial
Purchasers will make an offering of the Securities purchased by the
Initial Purchasers hereunder on the terms to be set forth in the
Time of Sale Memorandum as soon as practicable after this Agreement
is entered into as in your judgment is advisable.
4.
Payment and Delivery. Payment for the Securities shall be
made to the Company in Federal or other funds immediately available
in New York City against delivery of such Securities for the
respective accounts of the several Initial Purchasers at
10:00 a.m., New York City time, on August 18, 2009, or at such
other time on the same or such other date, not later than
August 25, 2009, as shall be designated in writing by you. The
time and date of such payment are hereinafter referred to as the
“ Closing Date .”
The Securities
shall be in definitive form or global form, as specified by you,
and registered in such names and in such denominations as you shall
request in writing not later than one full business day prior to
the Closing Date. The Securities shall be delivered to you on the
Closing Date for the respective accounts of the several Initial
Purchasers, with any transfer taxes payable in
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connection with
the transfer of the Securities to the Initial Purchasers duly paid,
against payment of the Purchase Price therefor.
5.
Conditions to the Initial Purchasers’ Obligations. The
several obligations of the Initial Purchasers to purchase and pay
for the Securities on the Closing Date are subject to the following
conditions:
(a) Subsequent to
the execution and delivery of this Agreement and prior to the
Closing Date:
(i) there shall
not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for
a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company’s
or any Guarantor’s securities by any “nationally
recognized statistical rating organization,” as such term is
defined for purposes of Rule 436(g)(2) under the Securities
Act; and
(ii) there shall
not have occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise, or in
the earnings, business or operations of the Parent, the Company and
the Subsidiaries, taken as a whole, from that set forth in the Time
of Sale Memorandum (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) that, in your
judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Securities on the terms and
in the manner contemplated in the Time of Sale
Memorandum.
(b) The Initial
Purchasers shall have received on the Closing Date a certificate
from the Company and each Guarantor, dated the Closing Date and
signed by an executive officer of the Company or such Guarantor, as
applicable, to the effect set forth in Section 5(a)(i) above and to
the effect that the representations and warranties of the Company
or such Guarantor, as applicable, contained in this Agreement are
true and correct as of the Closing Date and that the Company or
such Guarantor, as applicable, has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date. The
officer signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings
threatened.
(c) The Initial
Purchasers shall have received on the Closing Date an opinion of
Williams Mullen, special counsel for the Parent, dated the Closing
Date, in the form set forth in Exhibit A.
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(d) The Initial
Purchasers shall have received on the Closing Date the opinions of
special foreign counsel for the Parent in Argentina, Brazil, Chile,
Mexico and Peru, dated the Closing Date, in the respective forms
set forth in Exhibits B-1, B-2, B-3, B-4 and B-5.
(e) The Initial
Purchasers shall have received on the Closing Date an opinion of
Shearman & Sterling LLP, counsel for the Initial Purchasers,
dated the Closing Date.
(f) The Initial
Purchasers shall have received, on each of the date hereof and the
Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to the
Initial Purchasers, from PricewaterhouseCoopers LLP, independent
registered public accountants, containing statements and
information of the type ordinarily included in accountants’
“comfort letters” to underwriters with respect to the
financial statements and certain financial information contained
and incorporated by reference in the Time of Sale Memorandum and
the Final Memorandum; provided that the letter delivered on
the Closing Date shall use a “cut-off date” not earlier
than the date hereof.
(g) At or prior to
the Closing Date, the Company, the Guarantors and the Trustee shall
have executed and delivered the Indenture, and the Company, the
Guarantors and the Initial Purchasers shall have executed and
delivered the Registration Rights Agreement in the form of
Exhibit D hereto.
(h) The Initial
Purchasers shall have received from the Chief Executive Officer and
the Vice President and Treasurer of the Parent a letter, in form
and substance satisfactory to the Initial Purchasers and dated the
date hereof, relating to certain financial information included or
incorporated by reference in the Time of Sale Memorandum that is
not covered in the “comfort letters” referenced in 5(f)
above.
(i) Counsel for
the Initial Purchasers shall have been furnished with such
documents as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Securities
herein contemplated, or in order to evidence the accuracy of any of
the representations or warranties or the fulfillment of any of the
conditions herein contained.
6.
Covenants of the Company and the Guarantors . In further
consideration of the agreements of the Initial Purchasers contained
in this Agreement, each of the Company and the Guarantors, jointly
and severally, covenants with each Initial Purchaser as
follows:
13
(a) To furnish to
you in New York City, without charge, prior to 10:00 a.m. New
York City time on the business day next succeeding the date of this
Agreement and during the period mentioned in Section 6(d) or (e),
as many copies of the Time of Sale Memorandum, the Final
Memorandum, any documents incorporated by reference therein and any
supplements and amendments thereto as you may reasonably
request.
(b) Before
amending or supplementing the Preliminary Memorandum, the Time of
Sale Memorandum or the Final Memorandum, to furnish to you a copy
of each such proposed amendment or supplement and not to use any
such proposed amendment or supplement to which you reasonably
object.
(c) To furnish to
you a copy of each proposed Additional Written Offering
Communication to be prepared by or on behalf of, used by, or
referred to by the Company or any Guarantor and not to use or refer
to any proposed Additional Written Offering Communication to which
you reasonably object.
(d) If the Time of
Sale Memorandum is being used to solicit offers to buy the
Securities at a time when the Final Memorandum is not yet available
to prospective purchasers and any event shall occur or condition
exist as a result of which it is necessary to amend or supplement
the Time of Sale Memorandum in order to make the statements
therein, in the light of the circumstances, not misleading, or if,
in the opinion of counsel for the Initial Purchasers, it is
necessary to amend or supplement the Time of Sale Memorandum to
comply with applicable law, forthwith to prepare and furnish, at
its own expense, to the Initial Purchasers and to any dealer upon
request, either amendments or supplements to the Time of Sale
Memorandum so that the statements in the Time of Sale Memorandum as
so amended or supplemented will not, in the light of the
circumstances when delivered to a prospective purchaser, be
misleading or so that the Time of Sale Memorandum, as amended or
supplemented, will comply with applicable law.
(e) If, during
such period after the date hereof and prior to the date on which
all of the Securities shall have been sold by the Initial
Purchasers, any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Final Memorandum
in order to make the statements therein, in the light of the
circumstances when the Final Memorandum is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Initial Purchasers, it is necessary to amend or supplement the
Final Memorandum to comply with applicable law, forthwith to
prepare and furnish, at its own expense, to the Initial Purchasers,
either amendments or supplements to the Final Memorandum
14
so that the
statements in the Final Memorandum as so amended or supplemented
will not, in the light of the circumstances when the Final
Memorandum is delivered to a purchaser, be misleading or so that
the Final Memorandum, as amended or supplemented, will comply with
applicable law.
(f) To endeavor to
qualify the Securities for offer and sale under the securities or
Blue Sky laws of such jurisdictions as you shall reasonably
request.
(g) Whether or not
the transactions contemplated in this Agreement are consummated or
this Agreement is terminated, to pay or cause to be paid all
expenses (which shall not include any Initial Purchaser’s
discounts or commissions payable to such Initial Purchaser)
incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses
of the Company’s and the Guarantors’ counsel and the
Parent’s accountants in connection with the issuance and sale
of the Securities and all other fees or expenses in connection with
the preparation of the Preliminary Memorandum, the Time of Sale
Memorandum, the Final Memorandum, any Additional Written Offering
Communication prepared by or on behalf of, used by, or referred to
by the Company or any Guarantor and any amendments and supplements
to any of the foregoing, including all printing costs associated
therewith, and the mailing and delivering of copies thereof to the
Initial Purchasers, in the quantities herein above specified,
(ii) all costs and expenses related to the transfer and
delivery of the Securities to the Initial Purchasers, including any
transfer or other taxes payable thereon, (iii) the cost of
printing or producing any Blue Sky or legal investment memorandum
in connection with the offer and sale of the Securities under state
securities laws and all expenses in connection with the
qualification of the Securities for offer and sale under state
securities laws as provided in Section 6(f) hereof, including
filing fees and the reasonable fees and disbursements of counsel
for the Initial Purchasers in connection with such qualification
and in connection with the Blue Sky or legal investment memorandum,
(iv) any fees charged by rating agencies for the rating of the
Securities, (v) the fees and expenses, if any, incurred in
connection with the admission of the Securities for trading in
PORTAL or any appropriate market system, (vi) the costs and
charges of the Trustee and any transfer agent, registrar, paying
agent or depositary, (vii) the cost of printing certificates
representing the Securities, if printed, (viii) the costs and
expenses of the Company and the Guarantors relating to investor
presentations on any “road show” undertaken in
connection with the marketing of the offering of the Securities,
including, without limitation, expenses associated with the
preparation or dissemination of any
15
electronic road
show, expenses associated with production of road show slides and
graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval
of the Parent, travel and lodging expenses of the representatives
and officers of the Company and the Guarantors and any such
consultants, and the cost of any aircraft chartered in connection
with the road show, (ix) the document production charges and
expenses associated with printing this Agreement, the Indenture and
the Registration Rights Agreement and (x) all other costs and
expenses incident to the performance of the obligations of the
Company and the Guarantors hereunder for which provision is not
otherwise made in this Section. It is understood, however, that
except as provided in this Section, Section 8 entitled
“Indemnity and Contribution,” and the last paragraph of
Section 10 below, the Initial Purchasers will pay all of their
costs and expenses, including fees and disbursements of their
counsel, transfer taxes payable on resale of any of the Securities
by them and any advertising expenses connected with any offers they
may make.
(h) Not to, and to
use their reasonable best efforts to ensure that no Affiliate will,
sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in the Securities
Act) which could be integrated with the sale of the Securities in a
manner which would require the registration under the Securities
Act of the Securities.
(i) Not to solicit
any offer to buy or offer or sell the Securities by means of any
form of general solicitation or general advertising (as those terms
are used in Regulation D under the Securities Act) or in any manner
involving a public offering within the meaning of Section 4(2)
of the Securities Act.
(j) While any of
the Securities remain “restricted securities” within
the meaning of the Securities Act, to make available, upon request,
to any seller of such Securities the information specified in
Rule 144A(d)(4) under the Securities Act, unless the Parent is
then subject to Section 13 or 15(d) of the Exchange
Act.
(k) If requested
by you, to use their reasonable best efforts to permit the
Securities to be designated PORTAL securities in accordance with
the rules and regulations adopted by the Financial Industry
Regulatory Authority, Inc. relating to trading in the PORTAL
Market.
(l) None of the
Parent, the Company, their Affiliates or any person acting on its
or their behalf (other than the Initial Purchasers) will engage in
any directed selling efforts (as that term is defined in
Regulation S) with respect to the Securities, and the Parent,
the Company and their
16
Affiliates and
each person acting on its or their behalf (other than the Initial
Purchasers) will comply with the offering restrictions requirement
of Regulation S.
(m) During the
period of one year after the Closing Date, neither the Parent or
the Company will resell, and will use their best efforts to prevent
their affiliates (as such term is defined in Rule 144 under
the Securities Act) from reselling, any of the Securities which
constitute “restricted securities” under Rule 144
that have been acquired by any of them.
(n) Not to take
any action prohibited by Regulation M under the Exchange Act
in connection with the distribution of the Securities contemplated
hereby.
Each of the Parent
and Company agrees that, without the prior written consent of
Morgan Stanley & Co. Incorporated on behalf of the Initial
Purchasers, it will not, during the period ending 30 days
after the date of the Time of Sale Memorandum, offer, sell,
contract to sell or otherwise dispose of any debt securities of the
Parent or the Company or warrants to purchase debt securities of
the Parent or the Company substantially similar to the Securities
(other than the sale of the Securities under this
Agreement).
7.
Offering of Securities; Restrictions on Transfer .
(a) Each Initial Purchaser, severally and not jointly,
represents and warrants that such Initial Purchaser is a qualified
institutional buyer as defined in Rule 144A under the
Securities Act (a “ QIB ”). Each Initial
Purchaser, severally and not jointly, agrees with the Company and
the Guarantors that (i) it has not solicited and will not
solicit offers for, or offer or sell, such Securities by any form
of general solicitation or general advertising (as those terms are
used in Regulation D under the Securities Act) or in any
manner involving a public offering within the meaning of
Section 4(2) of the Securities Act and (ii) it will
solicit offers for such Securities only from, and will offer such
Securities only to, persons that it reasonably believes to be
(A) in the case of offers inside the United States, QIBs, and
(B) in the case of offers outside the United States, to
persons other than U.S. persons (“ foreign purchasers,
” which term shall include dealers or other professional
fiduciaries in the United States acting on a discretionary basis
for foreign beneficial owners (other than an estate or trust)) in
reliance upon Regulation S under the Securities Act that, in
each case, in purchasing such Securities are deemed to have
represented and agreed as provided in the Final Memorandum under
the caption “Transfer Restrictions” and (iii) it
will not use or refer to, and represents that it has not used or
referred to, any Additional Written Offering Communication without
the Parent’s prior consent other than written communications
that contain the possible terms of the Securities and/or
17
information
that was included (including through incorporation by reference) in
the Time of Sale Memorandum or the Final Memorandum.
(b) Each Initial
Purchaser, severally and not jointly, represents, warrants, and
agrees with respect to offers and sales outside the United States
that:
(i)
such Initial Purchaser understands that no action has been or will
be taken by the Company or any Guarantor that would permit a public
offering of the Securities, or possession or distribution of the
Preliminary Memorandum, the Time of Sale Memorandum, the Final
Memorandum or any other offering or publicity material relating to
the Securities, in any country or jurisdiction where action for
that purpose is required;
(ii)
such Initial Purchaser will comply with all applicable laws and
regulations in each jurisdiction in which it acquires, offers,
sells or delivers Securities or has in its possession or
distributes the Preliminary Memorandum, the Time of Sale
Memorandum, the Final Memorandum or any such other material, in all
cases at its own expense;
(iii)
the Securities have not been registered under the Securities Act
and may not be offered or sold within the United States or to, or
for the account or benefit of, U.S. persons except in accordance
with Rule 144A or Regulation S under the Securities Act
or pursuant to another exemption from the registration requirements
of the Securities Act;
(iv)
such Initial Purchaser has offered the Securities and will offer
and sell the Securities (A) as part of their distribution at
any time and (B) otherwise until 40 days after the later of
the commencement of the offering and the Closing Date, only in
accordance with Rule 903 of Regulation S or as otherwise
permitted in Section 7(a) hereof; accordingly, neither such Initial
Purchaser, its Affiliates nor any persons acting on its or their
behalf have engaged or will engage in any directed selling efforts
(within the meaning of Regulation S) with respect to the
Securities, and any such Initial Purchaser, its Affiliates and any
such persons have complied and will comply with the offering
restrictions requirement of Regulation S;
(v)
such Initial Purchaser, in relation to each Member State of the
European Economic Area which has implemented the Prospectus
Directive (each, a “ Member State ”), has
represented
18
and agreed that
with effect from and including the date on which the Prospectus
Directive is implemented in that Member State it has not made and
will not make an offer of Securities to the public in that Member
State, except that it may, with effect from and including such
date, make an offer of Securities to the public in that Member
State:
(A)
at any time to legal entities which are authorized or regulated to
operate in the financial markets or, if not so authorised or
regulated, whose corporate purpose is solely to invest in
securities;
(B)
at any time to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial year;
(2) a total balance sheet of more than €
43,000,000 and (3) an annual
net turnover of more than €
50,000,000, as shown in its last
annual or consolidated accounts; or
(C)
at any time in any other circumstances which do not require the
publication by us of a prospectus pursuant to Article 3 of the
Prospectus Directive.
For the
purposes of the above, the expression an “offer of Securities
to the public” in relation to any Securities in any Member
State means the communication in any form and by any means of
sufficient information on the terms of the offer and the Securities
to be offered so as to enable an investor to decide to purchase or
subscribe the Securities, as the same may be varied in that Member
State by any measure implementing the Prospectus Directive in that
Member State and the expression Prospectus Directive means
Directive 2003/71/EC and includes any relevant implementing measure
in that Member State;
(vi) such Initial
Purchaser has represented and agreed that it has only communicated
or caused to be communicated and will only communicate or cause to
be communicated an invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the Financial
Services and Markets Act 2000) in connection with the issue or sale
of the Securities in circumstances in which Section 21(1) of
such Act does not apply to us and it has complied and will comply
with all applicable provisions of such Act with respect to anything
done by it in relation to any Securities in, from or otherwise
involving the United Kingdom; and
19
(vii) such Initial
Purchaser agrees that, at or prior to confirmation of sales of the
Securities, it will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that
purchases Securities from it during the restricted period a
confirmation or notice to substantially the following
effect:
“The
Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the “Securities Act”) and may
not be offered and sold within the United States or to, or for the
account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days
after the later of the commencement of the offering and the Closing
Date, except in either case in accordance with Regulation S
(or Rule 144A if available) under the Securities Act. Terms
used above have the meaning given to them by
Regulation S.”
Terms used in
this Section 7(b) have the meanings given to them by
Regulation S.
(c) The
Company and the Guarantors agree that the Initial Purchasers may
provide copies of the Preliminary Memorandum, the Time of Sale
Memorandum, the Final Memorandum and any other agreements or
documents relating thereto, including without limitation, the
Indenture and the Registration Rights Agreement, to Xtract Research
LLC (“Xtract”), following completion of the offering,
for inclusion in an online research service sponsored by Xtract,
access to which shall be restricted by Xtract to QIBs.
8.
Indemnity and Contribution . (a) Each of the Company
and the Guarantors agrees to indemnify and hold harmless each
Initial Purchaser, each person, if any, who controls any Initial
Purchaser within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, and each
affiliate of any Initial Purchaser within the meaning of
Rule 405 under the Securities Act, from and against any and
all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or
claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Preliminary Memorandum, the
Time of Sale Memorandum, any Additional Written Offering
Communication prepared by or on behalf of, used by, or referred to
by the Company or any Guarantor, or the Final Memorandum or any
amendment or supplement thereto, or caused by any omission or
alleged omission to state therein a material fact necessary to make
the statements therein in the light of the circumstances under
which they were made not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such
untrue
20
statement or
omission or alleged untrue statement or omission based upon
information relating to any Initial Purchaser furnished to the
Company or any Guarantor in writing by such Initial Purchaser
through you expressly for use therein.
(b) Each
Initial Purchaser agrees, severally and not jointly, to indemnify
and hold harmless the Company, each Guarantor, the directors of the
Company and the Guarantors, the officers of the Company and the
Guarantors and each person, if any, who controls the Company or any
Guarantor within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company and the
Guarantors to such Initial Purchaser, but only with reference to
information relating to such Initial Purchaser furnished to the
Company or any Guarantor in writing by or on behalf of such Initial
Purchaser through you expressly for use in the Preliminary
Memorandum, the Time of Sale Memorandum, any Additional Written
Offering Communication prepared by or on behalf of, used by or
referred to by the Company or any Guarantor, or the Final
Memorandum or any amendment or supplement thereto.
(c) In
case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Section 8(a) or 8(b), such
person (the “ indemnified party ”) shall
promptly notify the person against whom such indemnity may be
sought (the “ indemnifying party ”) in writing
and the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay
the reasonable fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that
the indemnifying party shall not, in respect of the legal expenses
of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to
any local counsel) for all such indemnified parties and that all
such fees and expenses shall be reimbursed as they are incurred.
Such firm shall be designated in writing by Morgan Stanley &
Co. Incorporated, in the case of parties indemnified pursuant to
Section 8(a), and by the Parent, in the case of parties
indemnified pursuant to Section 8(b). The indemnifying party
shall not be liable for any
21
settlement of
any proceeding effected without its written consent, but if settled
with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason
of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified
party, unless such settlement (i) includes an unconditional
release of such indemnified party from all liability on claims that
are the subject matter of such proceeding and (ii) requires no
performance or payment obligations on the part of the indemnified
party.
(d) To
the extent the indemnification provided for in Section 8(a) or 8(b)
is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein,
then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of
such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company and the Guarantors on the one hand and the
Initial Purchasers on the other hand from the offering of the
Securities or (ii) if the allocation provided by clause
8(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative
benefits referred to in clause 8(d)(i) above but also the relative
fault of the Company and the Guarantors on the one hand and of the
Initial Purchasers on the other hand in connection with the
statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and
the Guarantors on the one hand and the Initial Purchasers on the
other hand in connection with the offering of the Securities shall
be deemed to be in the same respective proportions as the net
proceeds from the offering of the Securities (before deducting
expenses) received by the Company and the total discounts and
commissions received by the Initial Purchasers bear to the
aggregate offering price of the Securities. The relative fault of
the Company and the Guarantors on the one hand and of the Initial
Purchasers on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or any
Guarantor or by the Initial Purchasers and the parties’
relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Initial
Purchasers’ respective obligations to contribute pursuant to
this Section 8 are several in proportion to the respective
principal amount of Securities they have purchased hereunder, and
not joint.
22
(e) The
Company, the Guarantors and the Initial Purchasers agree that it
would not be just or equitable if contribution pursuant to this
Section 8 were determined by pro rata allocation (even
if the Initial Purchasers were treated as one entity for such
purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in
Section 8(d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities
referred to in Section 8(d) 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 or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no Initial
Purchaser shall be required to contribute any amount in excess of
the amount by which the total price at which the Securities resold
by it in the initial placement of such Securities were offered to
investors exceeds the amount of any damages that such Initial
Purchaser has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this
Section 8 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party
at law or in equity.
(f) The
indemnity and contribution provisions contained in this
Section 8 and the representations, warranties and other
statements of the Company and the Guarantors and the Initial
Purchasers contained in this Agreement shall remain operative and
in full force and effect regardless of (i) any termination of
this Agreement, (ii) any investigation made by or on behalf of
any Initial Purchaser, any person controlling any Initial Purchaser
or any affiliate of any Initial Purchaser or by or on behalf of the
Company or any Gurantor, their respective officers or directors or
any person controlling the Company or any Guarantor and
(iii) acceptance of and payment for any of the
Securities.
9.
Termination . The Initial Purchasers may terminate this
Agreement by notice given by you to the Parent, if after the
execution and delivery of this Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or materially
limited on, or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the Nasdaq Stock Market, the
Chicago Board Options Exchange, the Chicago Mercantile Exchange or
the Chicago Board of Trade, (ii) trading of any securities of the
Parent shall have been suspended on any exchange or in any
over-the-counter market, (iii) a material disruption in
securities settlement, payment or clearance services in the United
States shall have occurred, (iv) any moratorium on commercial
banking activities shall have been declared by Federal or New York
State authorities or (v) there shall have occurred any
outbreak or escalation of hostilities, or any change
23
in financial
markets, currency exchange rates or controls or any calamity or
crisis that, in your judgment, is material and adverse and which,
singly or together with any other event specified in this clause
(v), makes it, in your judgment, impracticable or inadvisable to
proceed with the offer, sale or delivery of the Securities on the
terms and in the manner contemplated in the Time of Sale Memorandum
or the Final Memorandum.
10.
Effectiveness; Defaulting Initial Purchasers . This
Agreement shall become effective upon the execution and delivery
hereof by the parties hereto.
If, on the Closing
Date, any one or more of the Initial Purchasers shall fail or
refuse to purchase Securities that it or they have agreed to
purchase hereunder on such date, and the aggregate principal amount
of Securities which such defaulting Initial Purchaser or Initial
Purchasers agreed but failed or refused to purchase is not more
than one-tenth of the aggregate principal amount of Securities to
be purchased on such date, the other Initial Purchasers shall be
obligated severally in the proportions that the principal amount of
Securities set forth opposite their respective names in
Schedule I bears to the aggregate principal amount of
Securities set forth opposite the names of all such non-defaulting
Initial Purchasers, or in such other proportions as you may
specify, to purchase the Securities which such defaulting Initial
Purchaser or Initial Purchasers agreed but failed or refused to
purchase on such date; provided that in no event shall the
principal amount of Securities that any Initial Purchaser has
agreed to purchase pursuant to this Agreement be increased pursuant
to this Section 10 by an amount in excess of one-ninth of such
principal amount of Securities 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 Securities
which it or they have agreed to purchase hereunder on such date and
the aggregate principal amount of Securities with respect to which
such default occurs is more than one-tenth of the aggregate
principal amount of Securities to be purchased on such date, and
arrangements satisfactory to you and the Parent for the purchase of
such Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Initial Purchaser or of the Company or any
Guarantor. In any such case either you or the Parent, on behalf of
the Company and the other Guarantors, 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 Time of
Sale Memorandum, the Final Memorandum or in 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 default of such Initial Purchaser under this
Agreement.
If this Agreement
shall be terminated by the Initial Purchasers, or any of them,
because of any failure or refusal on the part of the Company or any
Guarantor to comply with the terms or to fulfill any of the
conditions of this
24
Agreement, or
if for any reason the Company or any Guarantor shall be unable to
perform its obligations under this Agreement, the Company and the
Guarantors will reimburse the Initial Purchasers or such Initial
Purchasers as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including
the fees and disbursements of their counsel) reasonably incurred by
such Initial Purchasers in connection with this Agreement or the
offering contemplated hereunder.
11
. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon
the same instrument.
12
. Applicable Law. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of
New York.
13
. Headings. The headings of the sections of this
Agreement have been inserted for convenience of reference only and
shall not be deemed a part of this Agreement.
14
. Absence of Fiduciary Relationship. Each of the
Company and the Guarantors acknowledges and agrees that
(a) the purchase and sale of the Securities pursuant to this
Agreement is an arm’s-length commercial transaction between
the Company and the Guarantors, on the one hand, and the Initial
Purchasers, on the other, (b) in connection therewith and with
the process leading to such transaction the Initial Purchasers are
acting solely as principals and not the agents or fiduciaries of
the Company or any Guarantor, (c) the Initial Purchasers have
not assumed an advisory or fiduciary responsibility in favor of the
Company or any Guarantor with respect to the offering contemplated
hereby or the process leading thereto (irrespective of whether the
Initial Purchasers have advised or are currently advising the
Company on other matters) or any other obligation to the Company or
any Guarantor except the obligations expressly set forth in this
Agreement and (d) the Company and each Guarantor has consulted
its own legal and financial advisors to the extent it deemed
appropriate. Each of the Company and the Guarantors agrees that it
will not claim that the Initial Purchasers have acted in any
capacity other than as initial purchasers pursuant to this
Agreement, or owe any fiduciary duty to the Company or any
Guarantor, in connection with the offering, purchase or sale of the
Securities or the process leading thereto.
15
. Entire Agreement. This Agreement supersedes all prior
agreements and understandings (whether written or oral) among the
Company, the Guarantors and the Initial Purchasers with respect to
the subject matter hereof.
16
. Waiver of Jury Trial. The Company, each Guarantor and
the Initial Purchasers hereby irrevocably waive, to the fullest
extent permitted by applicable
25
law, any and
all right to trial by jury in any legal proceeding arising out of
or relating to this Agreement or the transactions contemplated
hereby.
17
. Notices. All communications hereunder shall be in
writing and effective only upon receipt and if to the Initial
Purchasers shall be delivered, mailed or sent to you in care of
Morgan Stanley & Co. Incorporated, 1585 Broadway, New York, New
York 10036, Attention: High Yield Syndicate Desk, with a copy to
the Legal Department, and J.P. Morgan Secruities Inc., 270 Park
Avenue, New York, New York 10017, Attention: Jessica Kearns, and
with a copy to Shearman & Sterling LLP, 599 Lexington Avenue,
New York, New York 10022, Attention: Andrew Schleider, Esq.; and if
to the Company or any Guarantor shall be delivered, mailed or sent
to c/o NII Holdings, Inc., 1875 Explorer Street, 10
th Floor, Reston, Virginia 20190, Attention:
General Counsel, with a copy to Williams Mullen, 1021 East Cary
Street, Richmond, Virginia 23219, At
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