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Exhibit 1.1
DEALER MANAGER AGREEMENT
December 18, 2002
Bear, Stearns & Co. Inc.
383 Madison Avenue
Eighth Floor
New York, New York 10179
Ladies and Gentlemen:
TRICOM, S.A., a corporation (SOCIEDAD ANONIMA) organized and existing under
the laws of the Dominican Republic ("TRICOM" or the "Company"), proposes to
offer (the "Exchange Offer") to exchange for its outstanding 11(3)/(8)% Senior
Notes due 2004 in the aggregate outstanding principal amount of US$200 million
(the "Old Notes") (a) an aggregate principal amount of up to US$200 million of
new senior notes (the "New Notes") and (b) additional consideration (the
"Exchange Consideration") in, at the option of tendering holders, (i) cash (the
"Cash Consideration") or (ii) warrants (the "Warrants") to purchase shares (the
"Common Shares") of Class A common stock, par value RD$10.00 per share (the
"Common Stock"), of TRICOM to be issued pursuant to that certain warrant
agreement to be dated as of the Closing Date (as defined below) (the "Warrant
Agreement") between TRICOM and a warrant agent to be named. The Common Shares
will be represented by TRICOM's American Depository Shares (the "ADSs"),
evidenced by TRICOM's American Depository Receipts (the "ADRs"), issued pursuant
to a Deposit Agreement (the "Deposit Agreement"), dated May 4, 1998 between
TRICOM and The Bank of New York, as Depositary (the "Depositary"). In addition,
TRICOM proposes to engage in a solicitation of consents (the "Consent
Solicitation") from registered holders (the "Holders") of the Old Notes to
certain proposed amendments (the "Proposed Amendments") to the Indenture dated
as of August 21, 1997 (the "Old Indenture"), among TRICOM, the guarantors named
therein and The Bank of New York, as trustee (the "Old Trustee"), under which
the Old Notes were issued, on terms and subject to the conditions set forth in
the Prospectus (as defined herein) relating to the Exchange Offer and the
accompanying letter of transmittal and consent (the "Letter of Transmittal").
The Old Notes remaining outstanding upon the expiration of the Offer (as
defined below), if any, will be governed by the Old Indenture, as amended,
including as amended by a supplemental indenture (the "Supplemental Indenture")
dated as of the Closing Date among TRICOM, the guarantors named therein and the
Old Trustee which will reflect the Proposed Amendments. The New Notes will be
issued pursuant to an indenture (the "New Indenture") dated as of the Closing
Date among TRICOM, the guarantors named therein and a trustee to be named (the
"New Trustee"). Pursuant to the New Indenture, the obligations of TRICOM under
the New Notes will be jointly and severally guaranteed by those subsidiaries of
TRICOM which are signatories to this Agreement (the "Guarantors") in accordance
with a guarantee to be dated as of the Closing Date and executed by each
Guarantor named therein (the "Guarantee").
The Exchange Offer and the Consent Solicitation collectively are referred
to as the "Offer." The terms of the New Notes, the Warrants, the ADSs, the ADRs,
the Common Stock, the Common Shares and the Offer will be as set forth in the
Prospectus and Letter of Transmittal, each of which will be sent to Holders
following the date when the Registration Statement (as defined below) is
declared effective by the United States Securities and Exchange Commission (the
"Commission").
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The making of the Offer, the exchange of securities and delivery of
consents pursuant thereto, and all related incidental acts and transactions,
including but not limited to the issuance and delivery of the New Notes, the
Guarantee, the Warrants, the Cash Consideration, the ADSs, the ADRs and the
Common Shares, all on terms and subject to the conditions set forth in the
Exchange Offer Materials (as defined herein), are hereinafter referred to
collectively as the "Exchange Offer Transactions." Capitalized terms used herein
without definition shall have their respective meanings set forth in or pursuant
to the Exchange Offer Materials (as defined herein).
TRICOM expressly reserves the right to amend or terminate the Exchange
Offer Transactions at any time following the commencement thereof and not to
accept for exchange any Old Notes not theretofore accepted for exchange, on the
terms specified in the Prospectus under the caption "The Exchange Offer and
Consent Solicitation." TRICOM will give oral (promptly confirmed in writing) or
written notice of any such proposed amendment or termination to the Dealer
Manager (as defined below) as promptly as practicable.
The following sets forth the agreement between TRICOM and the Dealer
Manager.
1. APPOINTMENT AS DEALER MANAGER. By this Dealer Manager Agreement (the
"Agreement"), TRICOM hereby engages and appoints Bear, Stearns & Co. Inc. as the
exclusive Dealer Manager (the "Dealer Manager") for the Exchange Offer
Transactions and authorizes Bear, Stearns & Co. Inc., subject to the terms and
provisions of this Agreement and those of the Compensation and Expense Letter
(as defined herein), to act as such in connection with the Exchange Offer
Transactions.
On the basis of the representations, warranties, covenants and agreements
contained herein and subject to and in accordance with the terms and conditions
hereof and those of the Offer, the Dealer Manager agrees, in accordance with its
customary practice, to perform those services in connection with the Exchange
Offer Transactions as are customarily performed by dealer managers in connection
with exchange offers of like nature, including, but not limited to, (a)
providing certain advice to TRICOM regarding the terms, structure and timing of
the Exchange Offer Transactions and assisting TRICOM in negotiating the terms of
the Offer with holders of the Old Notes, (b) assisting TRICOM in its preparation
of the Exchange Offer Materials to the extent such documents relate to the terms
of the Exchange Offer Transaction, (c) using its commercially reasonable efforts
to identify and contact holders of the Old Notes, solicit tenders of Old Notes
pursuant to the Offer and communicate with brokers, dealers, commercial banks
and trust companies (each individually, a "Dealer" and collectively, "Dealers")
in connection therewith, and (d) otherwise performing the duties of the Dealer
Manager described in the Exchange Offer Materials.
The Dealer Manager shall act as an independent contractor in connection
with the Exchange Offer Transactions with duties solely to TRICOM, and nothing
herein contained shall constitute the Dealer Manager as an agent of TRICOM in
connection with the solicitation of the tender of Old Notes pursuant to and in
accordance with the terms and conditions of the Offer; PROVIDED, HOWEVER, that
TRICOM hereby authorizes the Dealer Manager and/or one or more registered
brokers or dealers chosen by the Dealer Manager to act as TRICOM's agent in
making the Offer to residents of any jurisdiction in which such agent
designation may be necessary to comply with applicable law. The Dealer Manager
agrees that it will not make any representation or warranty or disseminate any
information concerning TRICOM, the Guarantors, their respective businesses or
financial conditions or the Offer, other than as set forth in the Exchange Offer
Materials.
Nothing in this Agreement shall constitute the Dealer Manager a partner or
joint venturer with TRICOM or any of the Guarantors. If the Dealer Manager and
TRICOM mutually agree that the Dealer Manager will provide other services to
TRICOM, including financial advisory or
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investment banking services, the Dealer Manager and TRICOM shall either amend
the terms of this Agreement or enter into a separate agreement covering the
terms and arrangements of such additional engagement.
2. NO LIABILITY FOR ACTS OF DEALERS. Neither the Dealer Manager nor any
of its affiliates shall have any liability (in tort, contract or otherwise) to
TRICOM or any Guarantor or any other person for any losses, claims, damages or
liabilities for or arising from (a) any act or omission, on the part of any
Dealer, or (b) the performance of its obligations as Dealer Manager hereunder or
otherwise in connection with the Exchange Offer Transactions except, in the case
of the losses, claims, damages or liabilities referred to in clause (b) above,
to the extent that such losses, claims, damages or liabilities are finally
judicially determined to have resulted primarily and directly from the Dealer
Manager's bad faith, gross negligence or willful misconduct in performing the
services that are the subject of this Agreement. Notwithstanding the foregoing,
TRICOM shall have exclusive authority to accept or reject any and all tenders of
Old Notes for exchange or deliveries of consents.
3. REGISTRATION STATEMENTS, PROSPECTUS AND EXCHANGE OFFER MATERIALS. 3(a)
TRICOM and the Guarantors have prepared and filed with the Commission under the
U.S. Securities Act of 1933, as amended, and the applicable rules and
regulations of the Commission thereunder (the "Securities Act"), a registration
statement on Form F-4 (No. 333--), and a related preliminary prospectus covering
the registration of the New Notes, the Warrants and the Common Shares. Such
registration statement, including the exhibits thereto and any documents
incorporated by reference therein, as amended at the time it becomes effective
or as thereafter amended or supplemented from time to time, is herein called the
"Registration Statement." The final prospectus included in the Registration
Statement (including any documents incorporated in the final prospectus by
reference) is herein called the "Prospectus," except that if the final
prospectus furnished to the Dealer Manager for use in connection with the
Exchange Offer Transactions differs from any prospectus set forth in the
Registration Statement (whether or not such prospectus is required to be filed
pursuant to Rule 424(b) promulgated under the Securities Act), the term
"Prospectus" shall refer to the final prospectus furnished to the Dealer Manager
for such use. The terms "supplement" and "amendment" or "supplemented" and
"amended" as used herein with respect to the Prospectus shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Prospectus and prior to the Closing Date (or
the date on which the Exchange Offer is terminated in accordance with the
provisions hereof) with the Commission pursuant to the U.S. Securities Exchange
Act of 1934, as amended, and the applicable rules and regulations of the
Commission thereunder (the "Exchange Act"). In addition, the Depositary and
TRICOM have prepared, and the Depositary, on behalf of TRICOM, has filed with
the Commission a registration statement on Form F-6 in respect of the ADSs which
will represent the Common Shares (the "F-6 Registration Statement").
3(b) The Registration Statement, the Prospectus and the related
Letter of Transmittal; related letters from the Dealer Manager to Dealers and
other nominees (provided that such letters are approved by TRICOM prior to their
use by the Dealer Manager); letters to beneficial owners of Old Notes, any other
newspaper announcements, press releases and other offering materials and
information TRICOM or the Guarantors may use or approve or authorize for use in
connection with the Offer, are herein collectively referred to as the "Exchange
Offer Materials." TRICOM and the Guarantors authorize the Dealer Manager to use
and agree to furnish to the Dealer Manager, at the expense of TRICOM, as many
copies as the Dealer Manager may reasonably request of the Exchange Offer
Materials in connection with the Exchange Offer Transactions and for such period
of time as any such material is required by law to be delivered in connection
therewith. The Dealer Manager agrees that it shall not (i) use any materials in
connection with the Exchange Offer Transactions other than the Exchange Offer
Materials and such other materials, if any, as TRICOM may approve in writing
(except for materials only for the Dealer Manager's own internal use that are
derived by the Dealer Manager only from the
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Exchange Offer Materials or from filings made by TRICOM pursuant to the Exchange
Act), or (ii) provide any oral information that is not contained in, or based
upon, the Exchange Offer Materials. TRICOM and the Guarantors acknowledge and
agree that the Dealer Manager may use the Exchange Offer Materials without
assuming any responsibility for independent investigation or verification on the
part of the Dealer Manager (except for any information relating to the Dealer
Manager and furnished to TRICOM in writing by the Dealer Manager expressly for
use therein) and represent and warrant to the Dealer Manager that the Dealer
Manager may rely on the accuracy and adequacy of information contained in the
Exchange Offer Materials or delivered by or on behalf of TRICOM and the
Guarantors without assuming any responsibility for independent investigation of
such information (except for any information relating to the Dealer Manager and
furnished to TRICOM in writing by the Dealer Manager expressly for use therein)
or without performing or receiving any appraisal or evaluation of TRICOM's or
any Guarantor's assets or liabilities.
3(c) TRICOM will (i) advise the Dealer Manager promptly of (A) the
occurrence of any event which could cause TRICOM to withdraw, terminate or
substantially modify any portion of the Exchange Offer Transactions or would
cause TRICOM to exercise any right not to exchange the Old Notes tendered
pursuant to the Exchange Offer Transactions or not to issue New Notes, (B) the
occurrence of any event, or the discovery of any fact, the occurrence or
existence of which it believes would require the making of any change in any of
the Exchange Offer Materials then being used or would cause any representation
or warranty contained in this Agreement to be untrue or inaccurate in any
material respect, and (C) any litigation or administrative or governmental
action or threat of any of the foregoing with respect to the Exchange Offer
Transactions and (ii) provide to the Dealer Manager promptly any other
information relating to the Exchange Offer Transactions, the Exchange Offer
Materials or this Agreement which the Dealer Manager may from time to time
reasonably request in the performance of its duties hereunder.
3(d) TRICOM agrees that, a reasonable time prior to using or filing
with the Commission or with any other Federal or other governmental agency,
authority or instrumentality ("Other Agency"), the Registration Statement, any
document to be incorporated by reference in the Registration Statement or any
other Exchange Offer Materials (whether preliminary or otherwise), or any
amendments or supplements to any of the foregoing, TRICOM will submit copies of
such materials to the Dealer Manager and will consult with the Dealer Manager
and give reasonable consideration to the comments of the Dealer Manager and its
counsel, if any, thereon.
3(e) TRICOM agrees that any reference to the Dealer Manager in any
Exchange Offer Materials or in any newspaper announcements or press release or
other public document or communication is subject to the Dealer Manager's prior
consent, which consent shall not be unreasonably withheld.
3(f) TRICOM agrees that the Dealer Manager shall not have any
obligation to cause copies of the Exchange Offer Materials to be transmitted
generally to the Holders.
3(g) TRICOM agrees that at the commencement of the Offer, it shall
cause to be delivered in a timely manner, to each Holder entitled thereto, the
Exchange Offer Materials and any other offering materials prepared expressly for
use by Holders tendering Old Notes in the Exchange Offer or delivering consents
in the Consent Solicitation, together with an envelope, addressed to the
Exchange Agent. Thereafter, until the expiration of the Exchange Offer, TRICOM
shall use its commercially reasonable efforts to cause copies of such materials
and such an envelope to be mailed to each person who becomes, to TRICOM's
knowledge, a holder of any Old Notes.
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4. WITHDRAWAL. If any of TRICOM or the Guarantors (a) use or permit the
use of, or file with the Commission or any Other Agency, any Exchange Offer
Materials (i) which have not been submitted for comments to the Dealer Manager
and its counsel or (ii) which have been so submitted and with respect to which
the Dealer Manager or its counsel has made comments but which comments have not
resulted in a response reasonably satisfactory to the Dealer Manager and its
counsel to reflect such comments or, (b) shall have breached, in any material
respect, any of its representations, warranties, agreements or covenants herein,
then the Dealer Manager shall be entitled to withdraw as Dealer Manager in
connection with the Exchange Offer Transactions without any liability or penalty
to the Dealer Manager (or any other indemnified party referred to in Section 11
hereof) for such withdrawal and without loss of any right to indemnification or
contribution provided in Section 11 or to the payment of all fees and expenses
payable pursuant to Section 5 and Section 6 hereunder which have accrued to the
date of such withdrawal. If the Dealer Manager withdraws as Dealer Manager for
any of the reasons set forth in the preceding sentence, the fees and
reimbursement for the expenses incurred through the date of such withdrawal
shall be paid to the Dealer Manager in accordance with Sections 5 and 6 hereof.
5. COMPENSATION. As compensation for its services in connection with the
Exchange Offer Transactions, TRICOM shall pay or cause its subsidiary TRICOM
USA, Inc., a Delaware corporation ("TRICOM USA"), to pay, the Dealer Manager a
fee, as set forth in that certain letter agreement (the "Compensation and
Expense Letter"), dated as of the date hereof, among the Dealer Manager, TRICOM
and TRICOM USA.
6. EXPENSES. 6(a) Whether or not any Old Notes are tendered for exchange,
TRICOM shall pay or cause TRICOM USA to pay, all expenses in connection with the
Exchange Offer Transactions, including, without limitation, (i) all fees and
expenses relating to the preparation, printing, filing, mailing, distribution
and publishing of the Exchange Offer Materials and all other documents
pertaining to the Exchange Offer Transactions; (ii) all fees and expenses of the
Old Trustee, the New Trustee, any depositary, the Exchange Agent, the
Information Agent and other agents, accountants, attorneys and other persons
retained by TRICOM in connection with the Exchange Offer Transactions; (iii) the
solicitation fee payable to Dealers as described in the Exchange Offer Materials
and all other fees, if any, payable to Dealers (including the Dealer Manager in
its capacity as a Dealer) as reimbursement for their customary mailing and
handling expenses in forwarding materials related to the Exchange Offer
Transactions to their customers; (iv) all advertising charges (except those
contemplated by Section 14 hereof); (v) all fees, costs and expenses incurred in
connection with (A) the registration or qualification of the New Notes under the
laws of such jurisdictions as the Dealer Manager may designate (including,
without limitation, reasonable fees of counsel for the Dealer Manager and its
reasonable disbursements) and (B) any filing with the National Association of
Securities Dealers, Inc. (the "NASD"); provided, however, that, TRICOM shall not
be obligated to pay (or cause to be paid) any legal fees incurred in connection
with such registrations, qualifications or filings in excess of $25,000; and
(vi) all other fees and expenses incurred by TRICOM or its affiliates in
connection with or relating to the Exchange Offer Transactions. In addition,
TRICOM agrees to reimburse or cause TRICOM USA to reimburse, the Dealer Manager
and its affiliates, promptly upon request, for all out-of-pocket expenses,
including (without limiting the foregoing) the reasonable fees, costs and
expenses of the Dealer Manager's U.S. and Dominican Republic legal counsel in
accordance with the Compensation and Expense Letter (collectively the "Dealer
Manager Expenses").
6(b) All payments to be made by TRICOM or TRICOM USA, as applicable,
pursuant to this Section 6 shall be made promptly after TRICOM's receipt of
invoices in form and substance reasonably satisfactory to TRICOM. TRICOM shall
perform its obligations set forth in Section 6 hereof and in Section 11 hereof
whether or not the Exchange Offer Transactions are commenced or TRICOM acquires
any Old Notes pursuant to the Offer.
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6(c) If the Dealer Manager withdraws pursuant to Section 4 hereof or
terminates this Agreement pursuant to Section 12 hereof, the Dealer Manager
shall nevertheless be entitled to receive payment of all expenses under this
Section 6 which have accrued to the date of such withdrawal or termination, as
the case may be, subject to Section 3 of the Compensation and Expense Agreement.
All reimbursement of expenses pursuant to this Section 6(c) shall be made
promptly after TRICOM's receipt of invoices in form and substance reasonably
satisfactory to TRICOM.
7. SECURITYHOLDER LISTS AND INFORMATION. TRICOM will cause the Dealer
Manager to be provided, to the extent the same is available to TRICOM, with
information regarding (a) the number of Letters of Transmittal that have been
delivered and (b) any cards or lists showing the names and addresses of, and the
number of Old Notes held by, the Holders as of a recent date, and will use its
reasonable best efforts to cause the Dealer Manager to be advised from day to
day during the period of the Offer as to any transfers of record of the Old
Notes known to TRICOM. The Dealer Manager agrees to use such information only in
connection with the Exchange Offer Transactions and not to furnish such
information to any other person except in connection therewith.
TRICOM authorizes the Dealer Manager to communicate with (a) an information
agent (the "Information Agent") to be appointed by TRICOM (and reasonably
satisfactory to the Dealer Manager) to act in such capacity in connection with
the Exchange Offer Transactions pursuant to an information agent agreement to be
entered into on or before the Commencement Date (as defined below) (the
"Information Agent Agreement"), and (b) an exchange agent (the "Exchange Agent")
to be appointed by TRICOM (and reasonably satisfactory to the Dealer Manager) to
act in such capacity in connection with the Exchange Offer pursuant to an
exchange agent agreement to be entered into on or before the Commencement Date
(the Exchange Agent Agreement"). TRICOM will arrange for the Exchange Agent to
advise the Dealer Manager daily as to such matters relating to the Offer as the
Dealer Manager may reasonably request.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF TRICOM AND THE
GUARANTORS. TRICOM and each Guarantor, jointly and severally, represent and
warrant to, and agree with, the Dealer Manager that, as of the Commencement Date
and at all times prior to and as of, the Closing Date:
8(a) The Exchange Offer Materials, including the Registration
Statement and the Prospectus have been prepared by TRICOM in conformity in all
material respects with the requirements of the Securities Act and the
Registration Statement has been declared effective by the Commission; no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
8(b) (i) TRICOM meets the requirements for use of Form F-4 under the
Securities Act for the purposes of the Exchange Offer, (ii) the Exchange Offer
Transactions and Exchange Offer Materials, including the Registration Statement
and the Prospectus, comply and, as amended or supplemented, if applicable, will
comply, in all material respects with (A) the Securities Act, (B) the Exchange
Act, (C) the Trust Indenture Act of 1939, as amended, and the applicable rules
and regulations of the Commission thereunder (the "Trust Indenture Act"), and
(D) the laws, rules and regulations of each jurisdiction where the Offer will be
made; (iii) the Registration Statement, when it became effective, did not
contain, and as amended or supplemented thereafter, if applicable, will not
contain, any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
not misleading; and (iv) none of the Prospectus or other Exchange Offer
Materials contains, and, as amended or supplemented, if applicable, will 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; PROVIDED, HOWEVER, that the
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representations and warranties set forth in this Section 8(b)(ii), (iii) and
(iv) do not apply to any statements or omissions in the Exchange Offer Materials
(including such statements in the Registration Statement and the Prospectus, as
amended or supplemented, as applicable) based upon information relating to the
Dealer Manager furnished to TRICOM in writing by the Dealer Manager expressly
for use therein. There are no other facts in relation to TRICOM or any of the
Guarantors or the laws of the Dominican Republic the omission of which would, in
the context of the Exchange Offer Transactions, make any statement in any of the
Exchange Offer Materials materially misleading, untrue or inaccurate. All
reasonable inquires have been made to ascertain such facts and to verify the
accuracy of all such information and statements; and any opinions and intentions
expressed by TRICOM in the Exchange Offer Materials with respect to TRICOM or
any of the Guarantors and the laws of the Dominican Republic are honestly held
and are based on reasonable assumptions by TRICOM (including, as set forth in
the Exchange Offer Materials, opinions of counsel to TRICOM and the Guarantors
and reports or other information of agencies or other instrumentalities of the
Dominican Republic, Panama, the United Nations or the United States, which
opinions and reports have not been independently verified by TRICOM).
8(c) The Prospectus, as amended or supplemented in relation to the
Exchange Offer, will be filed with the Commission pursuant to Rule 424(b)
promulgated under the Securities Act, if required, within the applicable time
period prescribed for such filing by the rules and regulations under the
Securities Act.
8(d) (i) The F-6 Registration Statement has been filed with the
Commission and is effective pursuant to the Commission's rules and regulations;
(ii) to TRICOM's knowledge, no stop order suspending the effectiveness of the
F-6 Registration Statement has been issued and no proceeding for that purpose
has been instituted or threatened by the Commission; and (iii) the F-6
Registration Statement complies, and as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act.
8(e) Neither TRICOM nor any of its subsidiaries has distributed or
will distribute, prior to the later of the Closing Date and the completion of
the distribution of the New Notes in exchange for the Old Notes pursuant to the
Exchange Offer Transactions, any offering material in connection with the
Exchange Offer Transactions, other than the Exchange Offer Materials.
8(f) TRICOM has taken all necessary action to authorize the exchange
of New Notes for Old Notes pursuant to the Exchange Offer and to authorize the
solicitation of consents pursuant to the Consent Solicitation.
8(g) KPMG (a member firm of KPMG International in the Dominican
Republic), who have certified the financial statements, the notes thereto, and
supporting schedules included in the Registration Statement, are independent
public accountants as required by the Securities Act and the Regulations. The
audited consolidated financial statements of TRICOM included in the Prospectus
including the notes thereto, and supporting schedules fairly present, in all
material respects, the consolidated financial position of TRICOM and its
subsidiaries and the consolidated results of operations and changes in financial
condition as of the dates and for the periods therein specified. Such financial
statements have been prepared in accordance with generally accepted accounting
principles in the United States ("GAAP") consistently applied throughout the
periods involved (except as otherwise noted therein). The other financial and
operating information and statistical data (other than statistical data with
respect to market position) set forth in the Prospectus are prepared on a basis
consistent with the consolidated financial statements included in the
Prospectus.
8(h) The execution and delivery of this Agreement, the New Indenture,
the Supplemental Indenture, the Guarantee, the Warrant Agreement, the Exchange
Agent Agreement,
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the Information Agent Agreement (collectively, the "Transaction Documents") have
been duly and validly authorized by each of TRICOM and the Guarantors party
thereto, as applicable, and each of the Transaction Documents and all related
agreements when executed and delivered will be duly executed and delivered by
each of TRICOM and the Guarantors party thereto, as applicable, and will
constitute the valid and legally binding obligation of each of TRICOM and the
Guarantors party thereto, as applicable, enforceable against such party in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer or conveyance, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights from time to time in
effect and to general principles of equity.
8(i) The New Indenture and the Supplemental Indenture upon execution
and delivery thereof, will have been prepared by TRICOM in conformity with the
requirements of, and will comply in all material respects with, the Trust
Indenture Act.
8(j) The New Notes (i) have been duly and validly authorized by
TRICOM, (ii) when executed and authenticated in accordance with the provisions
of the New Indenture, will be duly executed, authenticated, issued and delivered
and will conform in all material respects to the description thereof contained
in the Prospectus, and (iii) (A) when executed and authenticated in accordance
with the provisions of the New Indenture, the New Notes will constitute valid
and legally binding obligations of TRICOM, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer or conveyance,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights from time to time in effect and to general
principles of equity; (B) the holders of the New Notes will be entitled to the
benefits of the New Indenture; and (C) the New Notes will rank PARI PASSU in
right of payment with all other unsecured and unsubordinated Indebtedness of
TRICOM, including the Old Notes. "Indebtedness" means any indebtedness for money
borrowed or any guarantee of indebtedness for money borrowed.
8(k) Upon the consummation of the Exchange Offer Transactions, (i)
the Old Notes will continue to constitute valid and legally binding obligations
of TRICOM, enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer or conveyance, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
from time to time in effect and to general principles of equity; (ii) the rights
of holders of the Old Notes will be subject to the benefits of the Old
Indenture, as amended to date, including as amended by the Supplemental
Indenture; (iii) the terms of the Old Notes will conform in all material
respects to the description thereof in the Prospectus and (iv) the Old Notes
will rank PARI PASSU in right of payment with all other unsecured and
unsubordinated Indebtedness of TRICOM, including the New Notes.
8(l) The Guarantee (i) has been duly and validly authorized by each
Guarantor, (ii) when executed, issued and delivered in accordance with the
provisions of the New Indenture, will be duly executed, issued and delivered and
will conform in all material respects to the description thereof contained in
the Prospectus, and (iii) (A) when executed, issued and delivered in accordance
with the provisions of the New Indenture, the Guarantee will constitute the
valid and legally binding obligation of each such Guarantor, enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer or conveyance, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights from time to time in
effect and to general principles of equity; and (B) the holders of the New Notes
will be entitled to the benefits of the Guarantee as set forth therein and in
the New Indenture.
8(m) The Warrants (i) have been duly and validly authorized by TRICOM
and (ii) (A) upon issuance and delivery thereof in accordance with the terms of
the Exchange Offer Transactions and the Transaction Documents, will be duly and
validly issued, free and clear of all liens, security interests, pledges,
charges, encumbrances, shareholders' agreements, voting
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trusts, restrictions on transfer or adverse claims (except as created by the
holder of such Warrants or to which such holder or its properties are subject)
and constitute the legal, valid and binding obligations of TRICOM, enforceable
against TRICOM in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer or conveyance, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
from time to time in effect and to general principles of equity, (B) upon the
issuance and delivery thereof, the holders of the Warrants will be entitled to
the rights specified therein and in the Warrant Agreement; and (C) conform in
all material respects to the description thereof contained in the Prospectus.
8(n) The ADSs (i) have been duly and validly authorized by TRICOM and
(ii) upon issuance by the Depositary in accordance with the Deposit Agreement
and the issuance by the Depositary of ADRs evidencing ADSs against the deposit
of Common Shares in respect thereof, (A) will be duly and validly issued; and
(B) will entitle the persons in whose names the ADRs are registered to the
rights specified therein and in the Deposit Agreement. The ADSs and the ADRs
evidencing ADSs conform in all material respects to the descriptions thereof
contained in the Prospectus.
8(o) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as set forth in
the Registration Statement and the Prospectus, there has not occurred any event,
circumstance, change or development that has had or would reasonably be expected
to have a Material Adverse Effect. Since the date of the latest balance sheet
presented in the Registration Statement and the Prospectus, (i) neither TRICOM
nor any of its subsidiaries has incurred or undertaken any liabilities or
obligations, direct or contingent, which are material to TRICOM and its
subsidiaries taken as a whole, except for liabilities or obligations which are
reflected in the Registration Statement and the Prospectus, and (ii) there has
been no dividend or distribution of any kind declared, paid or made by TRICOM on
any class of capital stock of TRICOM.
8(p) The commencement and consummation of the Exchange Offer
Transactions, the execution and delivery by TRICOM and each of the Guarantors,
and the performance by each such party of their respective obligations under the
Transaction Documents and the consummation of the other transactions herein and
therein contemplated, do not and will not (A) require the consent, filing,
approval, authorization, registration or qualification of or with any
governmental authority, except (1) such as have been obtained or completed, (2)
such as may be required under the Securities Act, the Exchange Act and under
state securities or blue sky laws in the United States (the "Blue Sky Laws") and
(3) such filings as are required under the laws of the Dominican Republic in
connection with withholding requirements, if any, applicable to the payment of
the Cash Consideration or the issuance of the Warrants, or (B) conflict with or
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, (1) any indenture, mortgage, deed of trust, lease or
other agreement or instrument to which any of TRICOM or its subsidiaries is a
party or by which any of TRICOM or its subsidiaries or their respective
properties is bound, (2) the charter or by-laws of any of TRICOM or its
subsidiaries, (3) any statute of the Dominican Republic (or other jurisdiction)
or any judgment, decree, order, rule or regulation of any court or governmental
authority (in the Dominican Republic or any other jurisdiction) or any
arbitrator, or (4) the Constitution of the Dominican Republic, which conflict,
breach, violation or default referred to in the foregoing clauses (B) (1), (2),
(3) or (4) would reasonably be expected to have a material adverse effect, on
(i) the condition (financial or otherwise), or the results of operations or
business of TRICOM and its subsidiaries taken together as a whole, whether or
not arising in the ordinary course of business, (ii) the commencement and
consummation of the Exchange Offer Transactions, including issuance of the New
Notes, the Warrants, the Guarantee, the ADSs, the ADRs and the Common Shares on
the terms set forth in the Transaction Documents and the Exchange Offer
Materials, including the Prospectus, or (iii) the ability of the Dealer Manager
to perform its obligations hereunder or the ability of each of
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TRICOM and the Guarantors to consummate the Exchange Offer Transactions (any
such occurrence a "Material Adverse Effect").
8(q) TRICOM is not, and upon the consummation of the Offer, will not
be, an "investment company" as such term is defined in the U.S. Investment
Company Act of 1940, as amended.
8(r) The Transaction Documents, the New Notes, the Warrants, the
Guarantee, the ADSs, the ADRs and the Common Shares, when issued, will be in
proper legal form under the laws of the Dominican Republic and any other
jurisdiction in which any Guarantor is organized or formed (other than the
United States) for enforcement thereof against each of TRICOM and the
Guarantors, as applicable, and to ensure the legality, validity, enforceability
or admissibility into evidence of the Transaction Documents, the Warrants, the
Guarantee, the ADSs and the Common Shares and the New Notes, it is not necessary
that any of the Transaction Documents, the Warrants, the Guarantee, the ADSs and
the Common Shares or the New Notes or any other document to be furnished
hereunder, thereunder or in connection with the Exchange Offer Transactions be
filed or recorded with any court or other authority in the Dominican Republic or
any other jurisdiction in which any Guarantor is organized or formed (other than
the United States and if any such filing or recordation is required, TRICOM will
take commercially reasonable measures in order to effect any such filing or
recordation) or that any tax of any such jurisdiction or any political
subdivision thereof be paid on or in respect of any such document or security.
8(s) It is not necessary under the laws of the Dominican Republic or
any other jurisdiction in which any Guarantor is organized or formed (other than
the United States) (A) to enable the Dealer Manager to enforce its rights under
this Agreement or any other document to be furnished hereunder or to enable any
holder of any of the New Notes, the Warrants, the ADSs or the Common Shares to
enforce its rights or any other document to be furnished or in connection with
the Exchange Offer Transactions, provided that they are not otherwise engaged in
business in the Dominican Republic (or such other country or jurisdiction), or
(B) solely by reason of the execution, delivery and consummation of this
Agreement that the Dealer Manager or any holder of New Notes, the Warrants, the
ADSs or Common Shares be licensed, qualified or entitled to carry out business
in the Dominican Republic (or such other country or jurisdiction).
8(t) No holder of New Notes, Warrants, ADSs, the ADRs or Common
Shares will be deemed resident, domiciled, carrying on business or subject to
taxation in the Dominican Republic or any other jurisdiction in which any
Guarantor is organized or formed (other than the United States) solely by reason
of the execution, delivery, consummation or enforcement of any Transaction
Document or any other document to be furnished hereunder, nor shall the
foregoing be applicable to the Dealer Manager solely by reason of the execution,
delivery, consummation or enforcement of this Agreement.
8(u) Except as set forth in the Prospectus, TRICOM and its
subsidiaries are subject to civil and commercial law, to suit, and to execution
and attachment and process in the nature thereof with respect to its obligations
under the Transaction Documents, the New Notes, the Guarantee, the Warrants, the
ADSs and the Common Shares. Any waiver of immunity contained in the Transaction
Documents, the New Notes, the Guarantee or the Warrants will be valid, binding
and enforceable against TRICOM and each Guarantor, as applicable.
8(v) A complete and correct copy of the Exchange Offer Materials has
been furnished to the Dealer Manager or in each case will be furnished to the
Dealer Manager no later than the Commencement Date.
8(w) On or prior to the Commencement Date, TRICOM will have made
appropriate arrangements, to the extent applicable, with The Depository Trust
Corporation or any
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other "qualified" securities depositary to allow for the book-entry movement of
the Old Notes and New Notes between depositary participants and such securities
depositary.
8(x) The Exchange Offer Transactions conform in all material respects
to the descriptions thereof in the Exchange Offer Materials, including the
Prospectus.
8(y) The statements in the Prospectus under the headings "Description
of the New Notes", "Description of Warrants", "Description of Capital Stock",
"Description of American Depositary Receipts", and "Certain Material Tax
Consequences" fairly summarize in all material respects the matters described
therein.
8(z) Except as described in the Prospectus, no holder of securities
of TRICOM has any rights to the registration of securities of TRICOM because of
the filing of the Registration Statement, or otherwise in connection with the
sale of the New Notes, the Warrants or the Common Shares and the rights so
described in the Prospectus have been waived by the holders thereof.
8(aa) Except as disclosed in the Prospectus, there are not currently
any outstanding subscriptions, rights, warrants, calls, commitments of sale or
options to acquire, or instruments convertible into or exchangeable for, any
capital stock or other equity interest of TRICOM or any of its subsidiaries.
8(bb) TRICOM's authorized equity capitalization is as set forth in the
Prospectus, and the capital stock of TRICOM conforms in all material respects to
the description thereof contained in the Prospectus.
8(cc) The Common Shares are duly authorized and have been reserved for
issuance upon exercise of the Warrants and, when issued upon such exercise in
accordance with the terms of the Warrants and upon payment therefor will be duly
authorized, validly issued, fully paid and nonassessable shares of Common Stock,
free and clear of all liens, security interests, pledges, charges, encumbrances,
shareholders' agreements, voting trusts, restrictions on transfer or adverse
claims (except as created by the holder of such Warrants or to which such holder
or its properties are subject). The Common Shares may be issued by TRICOM
without any restriction and are freely deliverable to the Depositary against
issuance of ADRs evidencing ADSs. Upon the deposit of the Common Shares with the
Depositary pursuant to the Deposit Agreement, all right, title and interest in
such Common Shares, subject to the Deposit Agreement, will be transferred to the
Depositary or its nominees, as the case may be, free and clear of all liens,
security interests, pledges, charges, encumbrances, shareholders' agreements,
voting trusts, restrictions on transfer or adverse claims, and upon the sale and
delivery of the ADSs, good and valid title to such ADSs, free and clear of all
liens, security interests, pledges, charges, encumbrances, shareholders'
agreements, voting trusts, restrictions on transfer or adverse claims, will be
transferred to the holder thereof; and there are no restrictions on subsequent
transfers of the ADSs or on transfers of the Common Shares under the laws of the
Dominican Republic and the United States except as described in the Prospectus.
8(dd) All the outstanding shares of capital stock of each of TRICOM
and each of its subsidiaries have been duly and validly authorized and issued
and are fully paid and nonassessable, and, except as otherwise set forth in the
Prospectus, all outstanding shares of capital stock of each Guarantor are
directly or indirectly (through a subsidiary) owned by TRICOM, free and clear of
any perfected security interest or any other security interests, claims, liens
or encumbrances.
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8(ee) Except as disclosed in the Exchange Offer Materials or as
contemplated by this Agreement, neither TRICOM nor any of its subsidiaries has
paid or agreed to pay any person any compensation for (i) soliciting any person
to exchange or purchase any of TRICOM's securities or (ii) the solicitation of
exchanges or consents by Holders pursuant to the Exchange Offer Transactions.
8(ff) TRICOM is subject to and is reporting in accordance with the
requirements of Section 13 or Section 15(d) of the Exchange Act.
8(gg) Neither TRICOM nor any of its subsidiaries has taken, directly
or indirectly, any action designed to cause or that has constituted or that
might reasonably be expected to cause or result, under the Exchange Act or
otherwise, in the stabilization or manipulation of the price of any of any
securities of TRICOM or any such subsidiary to facilitate the Offer or encourage
tenders or consents by Holders in the Offer.
8(hh) The Exchange Agent Agreement and the Information Agent Agreement
shall be in full force and effect on the Commencement Date.
8(ii) The indemnification and contribution provisions set forth in
Section 11 of this Agreement do not violate the laws of the Dominican Republic
and or any other jurisdiction in which any Guarantor is organized or formed
(except that no representation is made as to the enforceability of
indemnification provisions under United States federal securities laws).
8(jj) The ADSs will be approved for listing, subject to official
notice of issuance, on the New York Stock Exchange.
8(kk) In order for TRICOM to effect the Proposed Amendments and
execute and deliver the Supplemental Indenture holders of at least a majority of
the aggregate principal amount of the Old Notes (the "Required Holder Consent")
outstanding (within the meaning of the Old Indenture) must deliver and not
revoke consents in the Consent Solicitation as provided in the Prospectus.
8(ll) TRICOM and each of its subsidiaries has been duly organized and
is validly existing as a corporation or sociedad anonima in good standing under
the laws of their respective jurisdictions of organization, including those of
the Dominican Republic, the United States or Panama, as the case may be.
8(mm) TRICOM and each of its subsidiaries has full power and authority
to carry on its business as it currently is being conducted and as it is
proposed to be conducted in the Prospectus and to own, lease and operate its
properties as described in the Prospectus; and each of TRICOM and the Guarantors
has full corporate power and authority and has taken all action necessary to
enter into this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby and in the Exchange Offer
Materials.
8(nn) TRICOM and each of its subsidiaries is duly qualified and is in
good standing as a foreign corporation or other entity where the nature of its
business or ownership or leasing of property requires such qualification, except
where the failure to be so qualified or in good standing would not have a
Material Adverse Effect.
8(oo) TRICOM has no "significant subsidiaries", as such term is
defined in Rule 12b of the Exchange Act.
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8(pp) The Concession Contract for the Operation of Telecommunication
Services in the Dominican Republic, dated February 20, 1996 (the "Concession
Agreement"), between TRICOM and the government of the Dominican Republic (the
"Dominican State") has been duly and validly authorized, executed, and delivered
by TRICOM and the Dominican State and is the legal, valid and binding obligation
of TRICOM and the Dominican State, enforceable against TRICOM and the Dominican
State in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or similar laws affecting the
rights of creditors generally and subject to general principles of equity (and
to governmental actions affecting the rights of creditors generally). The
Concession Agreement conforms in all material respects to the description
thereof included in the Prospectus.
8(qq) No default exists, and no event has occurred which, (i) with
notice or lapse of time or both, would constitute a default in the due
performance and observance of any term, covenant or condition of any indenture,
mortgage, deed of trust, lease or other agreement or instrument to which TRICOM
or any of its subsidiaries is a party or by which TRICOM or any of its
subsidiaries or any of their respective properties is bound and (ii) reasonably
would be expected to have a Material Adverse Effect. Except as described in the
Prospectus, TRICOM is not engaged in any discussions with creditors with a view
to rescheduling or restructuring any of its Indebtedness other than discussions
that are held in the ordinary course.
8(rr) Except as described in the Prospectus, there are no legal or
government actions, suits or proceedings pending or, to the knowledge of TRICOM,
threatened (i) to which TRICOM or any of its subsidiaries is or may be a party
or to which any property of TRICOM or any of its subsidiaries, is or may be
subject, which if determined adversely to TRICOM or any of its subsidiaries, as
the case may be, could individually or in the aggregate reasonably be expected
to have a Material Adverse Effect, or (ii) against or affecting TRICOM or any of
its subsidiaries, as the case may be, before any court or administrative agency
which challenges the validity or enforceability of any Transaction Document or
the transactions contemplated hereby or thereby including, without limitation,
the Exchange Offer Transactions.
8(ss) Except as described in the Prospectus, TRICOM and each of its
subsidiaries have filed all tax returns (foreign, national, local or other)
required to be filed (except in any case in which the failure so to file would
not have a Material Adverse Effect) and have paid all taxes required to be paid
by them and any other assessment, fine or penalty levied against it, to the
extent that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good faith.
8(tt) No labor problem or dispute with the employees of TRICOM or any
of its subsidiaries exists or, to TRICOM's knowledge, is threatened or imminent,
and neither TRICOM nor any of its subsidiaries is aware of any existing or
imminent labor disturbance by the employees of its principal suppliers,
contractors or customers, except any such problems or disputes which, when taken
together, would not have a Material Adverse Effect.
8(uu) TRICOM and each of its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are
engaged; all policies of insurance and fidelity or surety bonds insuring TRICOM
and such subsidiary or their businesses, assets, employees, officers and
directors are in full force and effect; TRICOM and each of its subsidiaries are
in compliance with the terms of such policies and instruments in all material
respects; and there are no claims by TRICOM or such subsidiary under any such
policy or instrument as to which any insurance company is denying liability or
defending under a reservation of rights clause; neither TRICOM nor any
subsidiary have been refused any insurance coverage sought or applied for; and
neither TRICOM nor any subsidiary has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires
or to obtain
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similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect.
8(vv) Except as described in the Prospectus, TRICOM and each of its
subsidiaries possess all licenses, certificates, permits and other
authorizations issued by the appropriate national, local or foreign regulatory
authorities necessary to conduct their respective businesses, and neither TRICOM
nor any subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect.
8(ww) TRICOM and each of its 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 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.
8(xx) TRICOM and each of its subsidiaries have fulfilled their
respective obligations, if any, under the minimum funding standards of Section
302 of the United States Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and the regulations and published interpretations thereunder
with respect to each "plan" (as defined in Section 3(3) of ERISA and such
regulations and published interpretations) in which employees of TRICOM or any
such subsidiary are eligible to participate and each such plan is in compliance
in all material respects with the presently applicable provisions of ERISA and
such regulations and published interpretations; neither TRICOM nor any
subsidiary have incurred any unpaid liability to the Pension Benefit Guaranty
Corporation (other than for the payment of premiums in the ordinary course) or
to any such plan under Title IV of ERISA.
8(yy) TRICOM and each of its subsidiaries: (i) are in compliance with
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 and are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses; and (iii) have not received notice of any actual or
potential liability for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or contaminants,
except where such non-compliance with Environmental Laws, failure to receive
required permits, licenses or other approvals, or liability would not,
individually or in the aggregate, have a Material Adverse Effect; neither TRICOM
nor any Guarantor has been named as a "potentially responsible party" under the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended.
8(zz) Except as disclosed in the Prospectus, TRICOM and each of its
subsidiaries owns or possesses, or can acquire on reasonable terms, all material
patents, patent rights, licenses, inventions, copyrights, know-how (including
trade secrets and other unpatented and/or patentable proprietary or confidential
information, systems or procedures), trademarks, service marks and trade names
necessary to the conduct of the business as now operated by them, and neither
TRICOM nor any of its subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any of the foregoing
which, singly or in the aggregate, would have a Material Adverse Effect.
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9. CONDITIONS OF OBLIGATIONS. The Dealer Manager's obligation to act as
Dealer Manager with respect to the Exchange Offer Transactions shall at all
times be subject to the conditions that:
9(a) All representations and warranties and other statements of
TRICOM and each Guarantor contained herein, from and including the Commencement
Date and through the date of consummation of the Offer (the "Closing Date")
shall be, true and correct in all material respects (except for any such
representation and warranty which is qualified as to materiality, in which case,
such representation and warranty is and shall be true and correct in all
respects), it being understood that the agreement of the Dealer Manager to act,
or to continue to act, as such at a time when the Dealer Manager knows that any
such representations, warranties or other statements is or may be untrue or
incorrect in a material respect shall be without prejudice to any of the rights
of the Dealer Manager hereunder, including the right subsequently to cease to
act as dealer manager by reason of the Dealer Manager's knowledge of such
untruth or incorrectness.
9(b) TRICOM and each Guarantor, at all times during the period of the
Exchange Offer Transactions, shall have performed all of its obligations
hereunder in all material respects.
9(c) No stop order or restraining order suspending the effectiveness
of the Registration Statement or the F-6 Registration Statement shall have been
issued and no litigation shall have been commenced or, to the knowledge of
TRICOM and each Guarantor, threatened, with respect to or affecting the Exchange
Offer Transactions or with respect to any of the transactions in connection
with, or contemplated by, the Exchange Offer Transactions or this Agreement
before any agency, court or other governmental body of the United States, the
Dominican Republic or any other jurisdiction that the Dealer Manager, in good
faith after consultation with TRICOM believes render it inadvisable for the
Dealer Manager to continue to act hereunder.
9(d) TRICOM shall deliver or cause to be delivered to the Dealer
Manager and the Dealer Manager shall have received:
(i) by no later than the date of the first mailing of the
Exchange Offer Materials to each Holder (the "Commencement Date"), the
Prospectus and any other Exchange Offer Materials, in form and
substance reasonably acceptable to the Dealer Manager;
(ii) on each of the Commencement Date and the Closing Date, the
written opinion, of Sucre, Arias, Castro & Reyes, Panamanian Counsel
to TRICOM in form and substance (and with such limitations)
substantially as set forth in Appendix A-1 attached hereto;
(iii) on each of the Commencement Date and the Closing Date, the
written opinion of Pellerano & Herrera, Dominican counsel to TRICOM in
form and substance (and with such limitations) substantially as set
forth in Appendix A-2 attached hereto;
(iv) on each of the Commencement Date and the Closing Date, the
written opinion of Piper Rudnick LLP, United States counsel to TRICOM
in form and substance (and with such limitations) substantially as set
forth in Appendix A-3 attached hereto; and
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(v) on the Closing Date, evidence satisfactory to the Dealer
Manager that TRICOM has obtained the Required Holder Consent.
9(e) On each of the Commencement Date and the Closing Date, the
Dealer Manager shall have received the opinion of Steel, Hector & Davis LLP,
Dominican Republic counsel to the Dealer Manager, and the opinion of Paul,
Hastings, Janofsky & Walker LLP, United States counsel to the Dealer Manager,
each, as to such matters as the Dealer Manager shall reasonably request.
9(f) On each of the Commencement Date and the Closing Date, the
Dealer Manager shall have received certificates of the Chief Executive Officer
and the Secretary of TRICOM, dated the Commencement Date or the Closing Date, as
the case may be, to the effect that:
(i) as of the Commencement Date or the Closing Date, as the
case may be, the representations and warranties of TRICOM and of each
Guarantor contained herein were and are true and correct in all
material respects;
(ii) no stop order suspending the effectiveness of the
Registration Statement or the F-6 Registration Statement has been
issued and no proceedings for that purpose have been instituted, or,
to their knowledge, threatened;
(iii) as of the Commencement Date or the Closing Date, as the
case may be, the obligations of TRICOM and each Guarantor to be
performed or complied with under this Agreement or any other
Transaction Document on or prior to the Commencement Date or the
Closing Date, as the case may be, have been duly performed or have
been complied with in all material respects;
(iv) as of the Closing Date, a principal amount of Old Notes
equal to or greater than the minimum exchange amount (as set forth in
the Prospectus) has been exchanged as contemplated in the Exchange
Offer Materials; and
(v) (A) the Prospectus does not contain any untrue statement
of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and (B) subsequent to the
execution and delivery of this Agreement or, if earlier, the dates as
of which information is given in the Prospectus (exclusive of any
amendment or supplement thereto), neither TRICOM nor any of its
subsidiaries has sustained any material loss or interference with its
business or properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding, and there has not
occurred any event, circumstance, change or development that has had
or would reasonably be expected to have a Material Adverse Effect.
9(g) On the Commencement Date, TRICOM shall have furnished to the
Dealer Manager a "comfort letter" from KPMG (a member of KPMG International in
the Dominican Republic), addressed to the Dealer Manager dated the Commencement
Date, in form and substance satisfactory to the Dealer Manager and its counsel.
In addition, on the Closing Date, the Dealer Manager shall receive a "bring down
comfort letter" from KPMG (a member of KPMG International in the Dominican
Republic), dated as of the Closing Date, addressed to the Dealer Manager and in
form and substance satisfactory to the Dealer Manager and its counsel.
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9(h) On or prior to the Closing Date, the New York Stock Exchange
shall have approved the ADSs for listing.
9(i) There shall not have occurred (i) any general suspension of, or
limitation on prices for, trading in the United States securities or financial
markets, (ii) any significant change in the price of the Old Notes which is
adverse to TRICOM or any of its affiliates, (iii) a material impairment in the
trading market for debt securities, (iv) a declaration of a banking moratorium
or any suspension of payments in respect of banks in the United States, (v) any
limitation (whether or not mandatory) by any United States, Dominican Republic
or Panamanian government or governmental, administrative or regulatory authority
or agency or other event that, in the reasonable judgment of the Dealer Manager,
might affect the extension of credit by banks or other lending institutions,
(vi) any (A) outbreak or escalation of hostilities or acts of terrorism
involving the United States or declaration of a national emergency or war by the
United States or (B) other calamity or crisis or any change in political,
financial or economic conditions, if the effect of any such event described in
subclause (A) or (B), in the Dealer Manager's sole judgment, makes it
impracticable or inadvisable to proceed with the Exchange Offer Transactions, or
(vii) in the case of any of the foregoing existing on the date hereof, a
material acceleration or worsening thereof.
9(j) None of the (A) offering and issuance of the New Notes, the
Warrants, the ADSs, the ADRs or the Common Shares in accordance with the
Exchange Offer Materials, (B) consummation of the Exchange Offer Transactions or
(C) rendering of services by the Dealer Manager in accordance with this
Agreement, shall be prohibited by any statute, order, rule or regulation
promulgated by any legislative or regulatory body or authority of the Dominican
Republic, the United States or any state thereof, other than Blue Sky Laws.
9(k) Subsequent to the execution and delivery of this Agreement or,
if earlier, the dates as of which information is given in the Prospectus
(exclusive of any amendment or supplement thereto), there shall not have
occurred any event, circumstance, change or development which has had or would
reasonably be expected to have a Material Adverse Effect, which, in the Dealer
Manager's sole judgment, makes it impractical or inadvisable to recommend that
Holders participate in the Offer on the terms and in the manner contemplated by
the Prospectus.
9(l) Prior to the date of this Agreement, TRICOM shall have furnished
to the Dealer Manager such further information, certificates, opinions and
documents, as the Dealer Manager may reasonably request, and shall have
furnished to the Dealer Manager's counsel such documents as they may reasonably
request for the purpose of enabling them to render the opinions required
pursuant to this Agreement.
10. COVENANTS OF TRICOM. TRICOM and each Guarantor covenant with the
Dealer Manager:
10(a) To use its reasonable efforts to cause the Registration
Statement to become effective promptly and to notify the Dealer Manager
immediately and, if requested by the Dealer Manager, to confirm the notice in
writing, (i) when any amended or additional Exchange Offer Material shall have
been filed, (ii) of the receipt of any comments from the Commission relating to
the Exchange Offer Transactions, (iii) of any request by the Commission to amend
the Registration Statement or amend or supplement the Prospectus or the other
Exchange Offer Material or for additional information relating to the Exchange
Offer Transactions, (iv) of the issuance by the Commission of any stop order
suspending the use of any Exchange Offer Material or the institution or
threatening of any proceedings for any of such purposes or (v) the occurrence of
any event which could cause TRICOM to withdraw, rescind, terminate or modify the
Exchange Offer Transactions or would permit TRICOM to exercise any right not to
accept New Notes tendered pursuant to the Exchange Offer Transactions. TRICOM
and the Guarantors will use their
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reasonable efforts to prevent the issuance of any such stop order, the issuance
of any order preventing or suspending such use and the suspension of any such
qualification and, if any such order is issued or qualification suspended, to
obtain the lifting of such order or suspension at the earliest practicable time;
10(b) To comply in all material respects with the Securities Act, the
Exchange Act and the Trust Indenture Act in connection with the Exchange Offer
Materials, the Exchange Offer Transactions and the transactions contemplated
hereby and thereby, as applicable. If, at any time when the Prospectus is
required by the Securities Act or the Exchange Act to be delivered in connection
with any solicitation of exchange, any event shall occur or condition shall
exist as a result of which it is necessary, in the opinion of counsel for the
Dealer Manager or counsel for TRICOM, to amend the Registration Statement or
amend or supplement the Prospectus or any other Exchange Offer Materials in
order that the Prospectus or such other Exchange Offer Materials will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements in the Prospectus or such other
Exchange Offer Materials, in light of the circumstances under which they were
made, not misleading or if, in the opinion of either such counsel, it shall be
necessary to amend the Registration Statement or amend or supplement the
Prospectus or any other Exchange Offer Materials to comply in all material
respects with the requirements of the Securities Act or the Exchange Act, TRICOM
will promptly prepare, file with the Commission and furnish, at its own expense,
to the Dealer Manager and to the Dealers (whose names and addresses will be
furnished to TRICOM by the Dealer Manager) to which Old Notes may have been
tendered for exchange, such amendment or supplement as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
or the Prospectus or such other Exchange Offer Materials comply with such
requirements;
10(c) To endeavor, in cooperation with the Dealer Manager, to qualify
the New Notes, the Warrants, the Guarantee, the ADSs, the ADRs and the Common
Shares for offering and issuance in connection with the Exchange Offer
Transactions under the applicable securities or Blue Sky Laws of such
jurisdictions as the Dealer Manger may reasonably request and to maintain such
qualifications in effect for such time as may be required for the consummation
of the Exchange Offer Transactions. In each jurisdiction in which the New Notes,
the Warrants, the Guarantee or the Common Shares have been so qualified, TRICOM
will file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for so long as any of the
New Notes, the Warrants, the Guarantee, the ADSs, the ADRs or the Common Shares
are required to be so qualified;
10(d) To effect the Exchange Offer Transactions in a manner that does
not conflict with the material terms and conditions of the Old Indenture;
10(e) To make generally available to TRICOM's security holders and to
the Dealer Manager as soon as practicable an earnings statement covering a
twelve-month period beginning not later than the first day of TRICOM's fiscal
quarter next following the effective date of the Registration Statement that
satisfies the provisions of Section 11(a) of the Securities Act and the rules
and regulations of the Commission thereunder;
10(f) To use its best efforts to advise, or cause the Exchange Agent
to advise, the Dealer Manager at 5:00 P.M., New York City time, or promptly
thereafter, daily (or more frequently if requested), by telephone, e-mail or
facsimile transmission, with respect to Old Notes tendered as follows: (i) the
aggregate principal amount of Old Notes validly tendered and represented by
certificates physically held by the Exchange Agent or confirmations of receipt
of book-entry transfer of Old Notes pursuant to the procedures set forth in the
Exchange Offer Materials on such day; (ii) any Old Notes properly withdrawn on
such day; and (iii) the cumulative totals of the aggregate principal amount of
Old Notes in categories (i) and (ii) above;
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10(g) To use its best efforts to cause the ADSs to be listed on the
New York Stock Exchange on or prior to the Closing Date;
10(h) To furnish the Dealer Manager and its counsel with all
information concerning TRICOM or its subsidiaries that the Dealer Manager
reasonably deems appropriate and to provide the Dealer Manager with reasonable
access to TRICOM's and such subsidiaries' officers, directors, accountants,
counsel, consultants and other appropriate agents and representatives; and
10(i) To cause all the Old Notes accepted in the Exchange Offer to be
canceled.
11. INDEMNIFICATION AND CONTRIBUTION. 11(a) TRICOM and each Guarantor,
jointly and severally, agree to indemnify and hold harmless to the fullest
extent permitted by law, the Dealer Manager, and its affiliated entities,
directors, officers, employees, legal counsel, agents and each person, if any,
who controls the Dealer Manager, or its directors, officers and employees within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act from and against any and all losses, claims, damages, obligations,
penalties, judgments, awards, liabilities, costs, expenses and disbursements
(and any all actions, suits, proceedings and investigations in respect thereof
and any and all reasonable legal and other costs, expenses or disbursements in
giving testimony or furnishing documents in response to a subpoena or otherwise)
including, without limitation, the reasonable costs, expenses and disbursements,
as and when incurred, of investigating, preparing or defending any such actions,
suit, proceeding or investigation (whether or not in connection with litigation
in which the Dealer Manager is a party) directly or indirectly (collectively,
"Losses") caused by, relating to, based upon, arising out of or in connection
with (i) the Dealer Manager's acting for TRICOM, including, without limitation,
any act or omission by the Dealer Manager in connection with its acceptance of
or the performance or non-performance of its obligations under this Agreement as
it may be amended from time to time, (ii) any untrue statement or alleged untrue
statement of a material fact contained in the Exchange Offer Materials (or any
amendment or supplement thereto), or the omission or alleged omission therefrom
of a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, (iii) any withdrawal
or termination by TRICOM of, or failure by TRICOM to make or consummate, the
Exchange Offer Transactions, (iv) any breach by TRICOM or any Guarantor of any
representation or warranty or failure to comply with any of its respective
agreements contained herein or in the Compensation and Expense Letter or (v) the
Offer or any other transaction relating thereto or contemplated herein or any
other Transaction Document or the engagement of the Dealer Manager for the
services contemplated hereby; PROVIDED, HOWEVER, this indemnity agreement shall
not apply to any Losses to the extent it is finally, judicially determined that
such Losses arise primarily and directly from (A) any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with information concerning the Dealer Manager that was prepared by
the Dealer Manager and furnished to TRICOM by or on behalf of the Dealer Manager
in writing expressly for use in the Exchange Offer Materials or (B) the Dealer
Manager's bad faith, gross negligence or willful misconduct in performing the
services that are the subject of this Agreement. This indemnity shall be in
addition to any indemnity that such indemnified persons may otherwise have.
11(b) Each indemnified party shall promptly give notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement, unless and to the
extent the indemnifying party did not otherwise learn of such action and such
failure results in the indemnifying party being materially prejudiced thereby.
In the case of any such action, proceeding or investigation, TRICOM shall be
entitled to
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participate therein or, at its option, assume the defense thereof, with counsel
satisfactory to the indemnified party. Upon assumption by TRICOM of the defense
of such action, proceeding or investigation, the indemnified party shall have
the right to participate in the defense of any such action and to retain its own
counsel at its own expense, unless (i) TRICOM has failed to employ counsel
satisfactory to the indemnified party within a reasonable period of time or (ii)
the indemnified party shall have been advised by counsel that there are actual
or potential conflicting interests between the indemnifying party and the
indemnified party, in which case the indemnifying party shall be liable for the
expenses of counsel to the indemnified party. In no event shall the indemnifying
party be liable for fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances; such counsel shall, to the extent
consistent with its professional responsibilities, cooperate with TRICOM and any
counsel designated by TRICOM. An indemnifying party shall be liable for any
settlement of any claim against an indemnified party made with the indemnifying
party's written consent which consent shall not be unreasonably withheld. No
indemnifying party shall, without the prior written consent of the Dealer
Manager, settle or compromise any claim, or permit a default or consent to the
entry of any judgment in respect thereof, unless such settlement, compromise or
consent includes, as an unconditional term thereof, the giving by the claimant
to the Dealer Manager of an unconditional and irrevocable release from all
liability in respect of such claim and does not include a statement as to an
admission of fault, culpability or failure to act, by or on behalf of the Dealer
Manager.
11(c) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 11 is for
any reason held to be unenforceable by the indemnified parties or otherwise
unavailable although applicable in accordance with its terms, TRICOM and each
Guarantor on the one hand, and the Dealer Manager on the other, shall contribute
to the aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by TRICOM and each Guarantor
on the one hand, and the Dealer Manager on the other, as incurred, in accordance
with (a) the relative benefits received by TRICOM and each Guarantor on the one
hand, and the Dealer Manager on the other hand; or (b) if the allocation
provided by clause (a) above is not permitted by applicable law, in accordance
with the relative fault of TRICOM and each Guarantor, on the one hand, and the
Dealer Manager, on the other hand, in connection with the statements, acts or
omissions which results in such losses, claims, damages, obligations, penalties,
judgments, awards, liabilities, costs, expenses and disbursements and (c) other
relevant equitable considerations; PROVIDED, HOWEVER, that 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
found liable of such fraudulent misrepresentation. The relative benefits
received by TRICOM and each Guarantor, on the one hand, and the Dealer Manager,
on the other hand, shall be deemed to be in the same proportion as the sum of
the outstanding aggregate principal amount of the New Notes bears to the fees
received by the Dealer Manager hereunder. The relative fault of TRICOM and each
Guarantor, and the Dealer Manager on the other hand, shall be determined with
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
related to information supplied by TRICOM or the Dealer Manager and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. Notwithstanding the foregoing, the Dealer
Manager shall not be obligated to contribute any amount hereunder that exceeds
the amount of the fees received by the Dealer Manager pursuant to this
Agreement. For purposes of this Section 11, each director, officer and employee
of the Dealer Manager, TRICOM or any of the Guarantors and each person, if any,
who controls the Dealer Manager on the one hand or TRICOM or any of the
Guarantors on the other hand, within the meaning of Section 15 of the Securities
Act, shall have the same rights to contribution
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as the Dealer Manager on the one hand or TRICOM or any of the Guarantors on the
other hand, as the case may be.
12. TERMINATION. This Agreement may be terminated (a) by the Dealer
Manager immediately at any time (i) upon the consummation of the Exchange Offer
Transactions or (ii) upon notice of withdrawal and termination to TRICOM if (A)
TRICOM's representations and warranties in this Agreement are incorrect in any
material respect, (B) TRICOM or any Guarantor fails to perform its obligations
under this Agreement in any material respect, (C) TRICOM or any Guarantor shall
mail or propose to mail any amendment or supplement to the Exchange Offer
Materials to which the Dealer Manager shall reasonably object, or (D) any of the
conditions specified in Section 9 of this Agreement have not been met or
fulfilled as of the time any such condition is required to have been met or
fulfilled, or (b) by TRICOM, on the one hand, or the Dealer Manager, on the
other hand, upon notice to the other party hereto (i) at any time that the
Exchange Offer Transactions are terminated or withdrawn by TRICOM for any reason
or (ii) if there is a good faith disagreement between the Dealer Manager, on the
one hand, and TRICOM, on the other hand, with respect to a material term or
condition of the Offer or the Exchange Offer Materials. Notwithstanding any
termination of this Agreement, TRICOM and the Guarantors shall remain liable for
payment and performance of their indemnification obligations in Section 11
hereof and the fees and expenses payable pursuant to Section 5 and Section 6
hereof, respectively.
13. SECURITIES POSITIONS. TRICOM acknowledges that it has no objection to
the fact that, in the course of trading activities, the Dealer Manager and its
affiliates may from time to time have positions in, and buy and sell securities
of TRICOM and its affiliates.
14. TOMBSTONE. The Dealer Manager after the expiration of the Exchange
Offer Transactions may, after obtaining written approval by TRICOM, place an
announcement in such newspapers and periodicals as it may choose, stating that
the Dealer Manager has acted as dealer manager to TRICOM in connection with the
Exchange Offer Transactions. Any such announcement shall be at the sole expense
of the Dealer Manager.
15. COUNTERPARTS. This Agreement may be executed in one or more separate
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
16. SURVIVAL. The representations and warranties, covenants and agreements
of each of TRICOM, the Guarantors and the Dealer Manager contained in this
Agreement, including the agreements contained in Sections 5, 6 and 11 hereof
shall remain operative and in full force and effect regardless of (a) the
making, withdrawal, termination or consummation of, or failure to commence, the
Exchange Offer Transactions; (b) any investigation made by or on behalf of any
person included in the indemnification provisions of Section 11 hereof or (c)
withdrawal by the Dealer Manager as permitted herein; or (d) any termination of
this Agreement as permitted herein.
17. NO CREATION OF THIRD PARTY RIGHTS. This Agreement does not create, and
shall not be construed as creating rights enforceable by any person or entity
not a party hereto, except those entitled thereto by virtue of the
indemnification provisions of Section 11 hereof.
18. RECOURSE AGAINST OTHERS. No director of TRICOM, the Dealer Manager or
any Guarantor or any employee, agent or manager of any of TRICOM, the Dealer
Manager or any Guarantor, shall have any liability for any obligations of
TRICOM, the Dealer Manager or any Guarantor under this Agreement or for any
claim based upon, in respect of or by reason of such obligations or their
creation. Each of TRICOM, the Guarantors and the Dealer Manager waives and
releases any such liability of such persons.
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19. SUCCESSORS AND ASSIGNS. The benefits of this Agreement shall inure to
the parties hereto, their respective successors and assigns, and to the persons
included in the indemnification provisions of Section 11 hereof and their
respective successors and assigns and representatives, and the obligations and
liabilities assumed in this Agreement by the parties hereto shall be binding
upon their respective successors and assigns; PROVIDED, that the assignment of
any right or obligation of a party hereunder requires the prior, written consent
of the other party.
20. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED MADE IN NEW YORK. THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO SUCH STATE'S RULES CONCERNING CONFLICTS OF LAWS.
21. CONSENT TO JURISDICTION; WAIVER OF IMMUNITIES. 21(a) TRICOM and each
Guarantor
(i) irrevocably submit to the jurisdiction of any New York
State or Federal court sitting in New York City and any appellate
court from any thereof in any action or proceeding arising out of or
relating to this Agreement, the Exchange Offer Transactions or any
Exchange Offer Material and agree not to commence any such action or
proceeding in any jurisdiction other than such courts;
(ii) irrevocably agree that all claims in respect of any such
action or proceeding may be heard and determined in such New York
State court or in such Federal court;
(iii) irrevocably waive, to the fullest extent permitted by law,
(A) any right to a trial by jury in any such action or proceeding and
(B) the defense of an inconvenient forum to the maintenance of, such
action or proceeding;
(iv) appoint CT Corporation Systems (the "Process Agent"), with
an office on the date hereof at 111 Eighth Avenue, 13th Floor, New
York, New York 10011, as its authorized agent to receive on their
behalf and their property service of copies of the summons and
complaint and any other process that may be made by mailing or
delivering a copy of such process to the appropriate party in care of
the Process Agent at the Process Agent's above address, represent and
warrant that the Process Agent has agreed to act as such, and agree to
take any and all actions, including filing any and all documents or
instruments (including for the appointment of any successor Process
agent, as necessary) that may be necessary to continue such
appointment in effect;
(v) authorize and direct the Process Agent to accept such
service on its behalf; and
(vi) agree that a final judgment in any such action or
preceding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided
by law.
21(b) Nothing in this Section 21 shall affect the right of any person
to bring any action or proceeding against TRICOM, any of the Guarantors or their
properties in the courts of other jurisdictions.
22. JUDGMENT CURRENCY. If any sum due from any party to any other
hereunder is (in order to effect payment of any judgment in any jurisdiction or
in order to obtain any judgment in
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any jurisdiction) to be converted from United States dollars (the "Specified
Currency") into another currency, the parties hereto agree, to the fullest
extent that they may effectively do so, that the rate of exchange used shall be
that at which, in accordance with normal banking procedures, the recipient can
purchase the Specified Currency with such other currency at the principal New
York office of the Dealer Manager, two business days preceding that on which the
final judgment is given. The obligations of TRICOM and of any Guarantor in
respect of any sum due hereunder shall, notwithstanding any judgment in, or
payable in, any currency other than the Specified Currency, be discharged only
to the extent that on the business day following receipt by the Dealer Manager
of any sum in such other currency, the Dealer Manager may, in accordance with
normal banking procedures, purchase the Specified Currency with such other
currencies. If the amount of the Specified Currency so purchased is less than
the sum originally due to the Dealer Manager in the Specified Currency, TRICOM
and each Guarantor agree, to the fullest extent it may effectively do so, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Dealer Manager against such loss. If the amount of the Specified Currency so
purchased is greater than the sum originally due to the Dealer Manager in the
Specified Currency, the Dealer Manager agrees to pay to TRICOM an amount equal
to the excess of the Specified Currency so purchased over the amount originally
due hereunder. These currency indemnification provisions shall extend to the
Dealer Manager and any of its affiliated entities, directors, officers,
employees, agents and controlling persons (within the meaning of the federal
securities laws). All references to the Dealer Manager in this Section 22 shall
be understood to include any and all of the foregoing.
23. ADDITIONAL AMOUNTS. TRICOM and each Guarantor will indemnify and hold
harmless the Dealer Manager in its capacity as dealer manager hereunder and,
subject to the following exception, not in its capacity as a holder of Old Notes
or New Notes, as applicable, (except that TRICOM shall indemnify the Dealer
Manager in its capacity as a holder of Old Notes or New Notes, as applicable, to
the extent that TRICOM indemnifies all holders of New Notes or Old Notes, as
applicable) against any documentary, stamp, registration or other tax, charge,
levy or other amounts imposed by the Dominican Republic, on or in connection
with the Exchange Offer Transactions or the Exchange Offer Materials. All
payments to be made to the Dealer Manager and other soliciting Dealers by TRICOM
or any Guarantor hereunder shall be made without withholding or deduction for or
on account of any present or future taxes, duties or governmental charges
whatsoever imposed or levied by or on behalf of the Dominican Republic or any
political subdivision thereof (or any taxing authority therein) unless TRICOM or
such Guarantor is compelled by law to deduct or withhold such taxes, duties or
charges. In that event, TRICOM or any Guarantor shall pay such additional
amounts as may be necessary in order that the net amounts received after such
withholding or deduction shall equal the amounts that would have been received
if no withholding or deduction had been made; PROVIDED HOWEVER, that no such
additional amounts shall be payable (i) in respect of any tax, duty or
governmental charge that would not have been imposed but for the existence of
any present or former connection between the Dealer Manager and the relevant
taxing jurisdiction, other than by entering into or performing this Agreement,
and (ii) in respect of any tax, duty or governmental charge that would not have
been imposed but for the failure of the Dealer Manager to comply with any
certification, identification, documentation or information or other reporting
requirement if such compliance is required by law, regulation, administrative
practice or applicable treaty as a precondition to or exemption from or
reduction in the rate of deduction or withholding of such taxes.
24. SEVERABILITY. In the event that any provision hereof shall be
determined to be invalid or unenforceable in any respect, such determination
shall not, to the extent permitted by law, affect such provision in any other
respect or any other provision hereof, which shall remain in full force and
effect.
25. NOTICES. All communications hereunder will be in writing and effective
only on receipt, will be mailed, delivered in person or by reputable overnight
courier, sent by facsimile mail or telegraphed and confirmed to it at the
applicable address set forth below:
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(a) if to TRICOM or any Guarantor,
c/o TRICOM, S.A.
Avenida Lope de Vega No. 95
Santo Domingo
Dominican Republic
Attention: Carl H. Carlson
Telephone: (809) 476-4044
Telecopier: (809) 476-4412
with a copy to
Piper Rudnick LLP
1251 Avenue of the Americas
New York, NY 10020
Attention: Steven L. Wasserman, Esq.
Telephone: (212) 835-6148
Facsimile: (212) 835-6001
(b) if to the Dealer Manager,
Bear, Stearns & Co. Inc.
Global Liability Management Group
383 Madison Avenue, 8th floor
New York, NY 10179
Attn: John C. Maguire
Telephone: (212) 272-5346
Telecopier: (212) 272-5100
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with a copy to
Paul, Hastings, Janofsky & Walker LLP
75 East 55th Street
New York, New York 10022
Attention: Jeffrey J. Pellegrino, Esq.
Telephone: (212) 318-6000
Facsimile: (212) 319-4090
26. AMENDMENT. This Agreement may not be amended except in writing signed
by each party to be bound thereby.
27. ENTIRE AGREEMENT. This Agreement and the Compensation and Expense
Letter constitute the entire agreement among the parties hereto with respect to
the subject matter hereof and thereof and supercede all prior agreements and
undertakings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof and thereof.
<Page>
Please indicate your willingness to act as Dealer Manager and your
acceptance of the foregoing provisions by signing in the space provided below
for that purpose and returning to us a copy of this Agreement so signed,
whereupon this Agreement and your acceptance shall constitute a binding
agreement between us.
Very truly yours,
TRICOM, S.A.
By: /s/ Ramon Tarrago
-------------------------------------
Name: Ramon Tarrago
Title:
CALL TEL CORPORATION
By: /s/ Ramon Tarrago
-------------------------------------
Name: Ramon Tarrago
Title:
GFN COMUNICACIONES, S.A.
By: /s/ Ramon Tarrago
-------------------------------------
Name: Ramon Tarrago
Title:
TCN-DOMINICANA, S.A.
By: /s/ Ramon Tarrago
-------------------------------------
Name: Ramon Tarrago
Title:
TRICOM CENTROAMERICA, S.A.
By: /s/ Ramon Tarrago
-------------------------------------
Name: Ramon Tarrago
Title:
TRICOM INTERNATIONAL SERVICES, INC.
By: /s/ Ramon Tarrago
-------------------------------------
Name: Ramon Tarrago
Title:
TRICOM LATINOAMERICA, S.A
<Page>
By: /s/ Ramon Tarrago
-------------------------------------
Name: Ramon Tarrago
Title:
TRICOM, S.A.
By: /s/ Ramon Tarrago
-------------------------------------
Name: Ramon Tarrago
Title:
TRICOM, S.A.
By: /s/ Ramon Tarrago
-------------------------------------
Name: Ramon Tarrago
TRICOM, S.A.
/s/ Ramon Tarrago
-----------------------------------------
Name: Ramon Tarrago
TRICOM, S.A.--DE C.V.
By: /s/ Ramon Tarrago
-------------------------------------
Name: Ramon Tarrago
Title:
TRICOM INTERNATIONAL
COMUNICACIONES, S.A.
By: /s/ Ramon Tarrago
-------------------------------------
Name: Ramon Tarrago
Title:
TRICOM TELECOMUNICACIONES, S.A.
By: /s/ Ramon Tarrago
-------------------------------------
Name: Ramon Tarrago
Title:
TRICOM TELECOMUNICACIONES, S.A.
By: /s/ Ramon Tarrago
-------------------------------------
Name: Ramon Tarrago
Title:
<Page>
TRICOM USA, INC.
By: /s/ Ramon Tarrago
-------------------------------------
Name: Ramon Tarrago
Title:
Confirmed and Agreed to as of the
date of this Agreement.
BEAR, STEARNS & CO. INC.
By: /s/ Scott Moskowitz
----------------------------------
Name: Scott Moskowitz
Title: Senior Managing Director