Exhibit 1.2
Global Crossing Ltd.
$[ ]
[CONVERTIBLE] [SENIOR] [SUBORDINATED] DEBT SECURITIES
UNDERWRITING AGREEMENT
New York, New York
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[Addressees]
Ladies and Gentlemen:
Global Crossing Ltd., a Bermuda company (the "Company"), proposes to
issue and sell to you (the "Underwriters"), in the amounts set forth in Schedule
I hereto, $[ ] in aggregate principal amount of its [convertible] [senior]
[subordinated] [debt securities] (the "Securities"). The Securities are to be
issued pursuant to an indenture (the "Indenture"), dated as of [ ], between the
Company and United States Trust Company of New York, as trustee. The Securities
are more fully described in the Prospectuses referred to below. Capitalized
terms used but not defined herein shall have the meanings given to such terms in
the Prospectuses (as defined below).
In connection with the sale of the Securities, the Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a Registration Statement on Form S-3, including
Prospectuses subject to completion, relating to the Securities. The term
"Registration Statement" as used in this Agreement means the registration
statement (including all financial schedules and exhibits and all documents
incorporated therein by reference), as amended at the time it becomes effective,
and as thereafter amended by post-effective amendment. The term "Prospectuses"
as used in this Agreement means the prospectuses in the forms included in the
Registration Statement or, if the prospectuses included in the Registration
Statement omit the information in reliance on Rule 430A under the Act and such
information is included in prospectuses filed with the Commission pursuant to
Rule 424(b) under the Act, the term "Prospectuses" as used in this Agreement
means the prospectuses in the forms included in the Registration Statement as
supplemented by the addition of the Rule 430A information contained in the
prospectuses filed with the Commission pursuant to Rule 424(b). The term
"Prepricing Prospectuses" as used in this Agreement means the prospectuses
subject to completion in the forms included in the Registration Statement at the
time of the initial filing of the Registration Statement with the Commission, as
such prospectuses shall have been amended from time to time prior to the date of
the Prospectuses. "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
1. Representations and Warranties. The Company hereby
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represents and warrants to each Underwriter as set forth below in this
Section 1.
(a) The Registration Statement and the Prospectuses and any
supplement or amendment thereto when filed with the Commission under Rule
424(b) under the Act complied or will comply in all material respects with
the provisions of the Act and will not at any such times contain any
untrue statement of a material fact or omit to state any 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 Company does not make any representation or warranty as
to the information contained in or omitted from the Registration Statement
or any Prospectus, or any amendment or supplement thereto, in reliance
upon and in conformity with information furnished in writing to the
Company by any Underwriter specifically for inclusion therein.
(b) The statements made in the Prospectuses under the caption
"Description of the [Notes]", insofar as they purport to constitute
summaries of certain terms of documents referred to therein, constitute or
will constitute accurate summaries of the terms of such documents in all
material respects.
(c) The Indenture has been duly and validly authorized by the
Company and upon its execution and delivery by the Company and assuming
due authorization, execution and delivery by the Trustee, will constitute
the valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, subject to the qualification that
the enforceability of the Company's obligations thereunder may be limited
by bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium, and other laws relating to or affecting creditors' rights
generally and by general equitable principles, and that the waiver
contained in Section [ ] of the Indenture may be unenforceable.
(d) The execution and delivery of, and the performance by the
Company of its obligations under, this Agreement have been duly and
validly authorized by the Company; this Agreement has been duly executed
and delivered by the Company and, assuming due authorization, execution
and delivery by the other parties hereto, constitutes the valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, subject to the qualification that the
enforceability of the Company's obligations hereunder may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium
or other similar laws relating to or affecting creditors' rights generally
and by general principles of equity, and except as rights to indemnity and
contribution hereunder may be limited by Federal or state securities laws
or principles of public policy.
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(e) The Securities have been duly and validly authorized by the
Company and, when duly executed by the Company in accordance with the
terms of the Indenture, assuming due authentication of the Securities by
the Trustee and upon delivery to the Underwriters against payment therefor
in accordance with the terms hereof, will be validly issued and delivered
and will constitute valid and binding obligations of the Company entitled
to the benefits of the Indenture, enforceable against the Company in
accordance with their terms, subject to the qualification that the
enforceability of the Company's obligations thereunder may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors' rights generally and by
general equitable principles, and that the waiver contained in Section [ ]
of the Indenture may be unenforceable.
(f) All the outstanding shares of Common Stock of the Company have
been duly authorized and validly issued, are fully paid and nonassessable
and are free of any preemptive or similar rights; [all of the shares of
Common Stock of the Company issued upon conversion of the Securities will
be authorized and validly issued, fully paid and nonassessable and free of
any preemptive or similar rights]; and the capital stock of the Company
conforms to the description thereof in the Prospectuses.
(g) The Company is a company duly organized and validly existing and
in good standing under the laws of Bermuda and has the requisite corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement or the
Prospectuses and to execute, deliver and perform its obligations under
this Agreement, the Indenture and the Securities (including, without
limitation, the requisite corporate power and authority to issue, sell and
deliver the Securities), and is duly registered and qualified to conduct
its business and is in good standing in each jurisdiction or place where
the nature of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to register or
qualify or to be in good standing would not have a material adverse effect
on the business, assets, condition (financial or otherwise) or results of
operations of the Company and the direct or indirect subsidiaries of the
Company (the "Subsidiaries"), taken as a whole (a "Material Adverse
Effect").
(h) Each of the Subsidiaries is duly organized and validly existing
and in good standing under the laws of the jurisdiction of its
organization and has the requisite power (corporate and other) and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement or the Prospectuses
and is duly registered and qualified to conduct its business and is in
good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify or be in
good standing would not have a Material Adverse Effect. All of the
outstanding shares of capital stock of each of the Subsidiaries have been
duly authorized and validly issued, are fully paid
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and nonassessable, and, with respect to capital stock of the Subsidiaries,
are wholly owned by the Company, directly or indirectly through one of the
other Subsidiaries, free and clear of any lien, adverse claim, security
interest, equity or other encumbrance, except [ ].
(i) Except as disclosed in the Registration Statement or the
Prospectuses, there are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened, against the Company or any of
the Subsidiaries or to which any of their respective properties is subject
that, if determined adversely to the Company or any of the Subsidiaries,
would have a Material Adverse Effect or that are required to be described
or summarized in the Registration Statement or the Prospectuses but are
not described as required by the Act. The Registration Statement and
Prospectuses contain accurate summaries of all material agreements,
contracts, indentures, leases or other instruments that are required
to be described or summarized under the Act.
(j) Neither the Company nor any of the Subsidiaries is (i) in
violation of its organizational documents, or of any law, ordinance,
administrative or governmental rule or regulation applicable to it or of
any decree of any court or governmental agency or body having jurisdiction
over it, except where any such violation or violations would not have a
Material Adverse Effect or (ii) except as may be disclosed in the
Registration Statement or the Prospectuses, in default in the performance
of any obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or in any material
agreement, indenture, lease or other instrument to which it is a party or
by which it or any of its properties may be bound, which either
individually or in the aggregate would have a Material Adverse Effect.
(k) None of the issuance, offer or sale of the Securities, the
execution, delivery or performance by the Company of this Agreement or the
Indenture, compliance by the Company with the provisions hereof or thereof
nor consummation by the Company of the transactions contemplated hereby or
thereby (i) requires any consent, approval, authorization or other order
of, or registration or filing with, any court or governmental agency or
body having jurisdiction over it (except such as may be required in
connection with any consent, approval, authorization or other order of the
Bermuda Minister of Finance or the Bermuda Monetary Authority and
compliance with the securities or Blue Sky laws of various jurisdictions),
(ii) conflicts or will conflict with or constitutes or will constitute a
breach of, or a default under, the organizational documents of the Company
or any of the Subsidiaries or any material agreement, indenture, lease or
other instrument to which the Company or any of the Subsidiaries is a
party or by which any of them or any of their respective properties may be
bound, (iii) violates or will violate any statute, law, regulation or
filing or judgment, injunction, order or decree applicable to the Company
or any of the Subsidiaries or any of their respective properties, or (iv)
will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of the
Subsidiaries pursuant to the terms of any agreement or instrument to which
any of them is a party or by
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which any of them may be bound or to which any of the property or assets
of any of them is subject.
(l) [ ], who have certified the financial statements of the
Company included as part of or incorporated by reference in the
Registration Statement and the Prospectuses are independent public
accountants within the meaning of the Act and the applicable rules and
regulations thereunder.
(m) The financial statements, together with the related notes
thereto, included as part of the Registration Statement and the
Prospectuses or incorporated by reference therein, present fairly in all
material respects the consolidated financial position, results of
operations, shareholders' equity and cash flows of the Company together
with its consolidated subsidiaries [and [ ], together with their
consolidated subsidiaries,] on the basis stated in the Registration
Statement and the Prospectuses at the respective dates or for the
respective periods to which they apply (to the extent such entities were
in existence at such dates or for such periods); such statements and
related notes have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved, except as disclosed therein, and meet the requirements of
Regulation S-X under the Act for registration statements on Form S-3; and
the other financial information and data set forth or incorporated by
reference in the Registration Statement and the Prospectuses is accurately
presented and, to the extent such information and data is derived from the
financial books and records of the Company, is prepared on a basis
consistent with such financial statements and the books and records of the
Company. The selected financial data set forth under the caption "Selected
historical financial information" in the Registration Statement and the
Prospectuses or the selected financial data incorporated by reference in
the Registration Statement and the Prospectuses fairly present the
information included or incorporated by reference therein.
(n) The pro forma financial statements included in the Registration
Statement and the Prospectuses have been prepared on a basis consistent
with the historical financial statements of the Company and its
consolidated subsidiaries, except for the pro forma adjustments specified
therein, and give effect to assumptions made on a reasonable basis and
present fairly in all material respects the historical transactions
contemplated in the Registration Statement and the Prospectuses and comply
as to form in all material respects with the requirements of Regulation
S-X under the Act.
(o) Except as disclosed in, or specifically contemplated by, the
Registration Statement or the Prospectuses, subsequent to the date as of
which such information is given in the Registration Statement or the
Prospectuses (as amended or supplemented, if applicable), neither the
Company nor any of the Subsidiaries has incurred any liability or
obligation, direct or contingent, or entered into any transaction, in each
case not in the ordinary course of business, that is material to the
Company and the Subsidiaries taken as a whole, and there has not been any
material change in the capital stock, or material increase
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in the short-term or long-term debt, of the Company or any of the
Subsidiaries or any material adverse change, or any development involving
or which would be expected to involve a prospective material adverse
change, in the business, assets, condition (financial or otherwise) or
results of operations of the Company and the Subsidiaries taken as a
whole.
(p) Each of the Company and the Subsidiaries has good and
indefeasible title to all property (real and personal) described in the
Registration Statement and the Prospectuses as being owned by it, free and
clear of all liens, claims, security interests or other encumbrances,
except such as are described in the Registration Statement or the
Prospectuses or would not have a Material Adverse Effect, and all the
material property described in the Registration Statement or the
Prospectuses as being held under lease by each of the Company and the
Subsidiaries is held by them under valid, subsisting and enforceable
leases, with only such exceptions as would not have a Material Adverse
Effect.
(q) Each of the Company and the Subsidiaries has such permits,
licenses, franchises, certificates of need and other approvals or
authorizations of governmental or regulatory authorities ("Permits") as
are necessary under applicable law to own their respective properties and
to conduct their respective businesses in the manner described in the
Registration Statement or Prospectuses, except to the extent that the
failure to have such Permits would not have a Material Adverse Effect; the
Company and each of the Subsidiaries have fulfilled and performed in all
material respects all their respective material obligations with respect
to the Permits, and no event has occurred which allows, or after notice or
lapse of time would allow, revocation or termination thereof or results in
any other material impairment of the rights of the holder of any such
Permit, subject in each case to such qualification as may be set forth in
the Registration Statement or the Prospectuses and except to the extent
that any such revocation or termination would not have a Material Adverse
Effect.
(r) The Company and the Subsidiaries, taken as a whole, are insured
by insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent.
(s) Neither the Company nor the Subsidiaries have violated any
applicable foreign, federal, state or local law or regulation relating to
the protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), except for such violations which, singly or in the aggregate,
would not have a Material Adverse Effect.
(t) There are no costs or liabilities associated with any applicable
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities
to third parties) which would, singly or in the aggregate, have a Material
Adverse Effect.
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(u) No holder of any security of the Company or any of the
Subsidiaries has any right to request or demand registration of shares of
common stock or any other security of the Company because of the
consummation of the transactions contemplated by this Agreement. Except as
described in the Registration Statement or the Prospectuses, there are no
outstanding options, warrants or other rights calling for the issuance of,
and there are no commitments, agreements or arrangements to issue, any
shares of capital stock of the Company or any of the Subsidiaries or any
security convertible into or exchangeable or exercisable for capital stock
of the Company or any of the Subsidiaries.
(v) The Company and each of the Subsidiaries own or possess all
patents, trademarks, trademark registration, service marks, service xxxx
registrations, trade names, copyrights, licenses, inventions, trade
secrets and rights described in the Registration Statement or the
Prospectuses as being owned by any of them or necessary for the conduct of
their respective businesses, and, except as may be disclosed in the
Registration Statement or the Prospectuses, the Company is not aware of
any claim to the contrary or any challenge by any other person to the
rights of the Company and the Subsidiaries with respect to the foregoing
which, if determined adversely to the Company or the Subsidiaries, would
have a Material Adverse Effect.
(w) The Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "Investment Company
Act").
(x) Prior to the date hereof, the Company, has not taken any action
which is designed to or which has constituted or which might have been
expected to cause or result in stabilization or manipulation of the price
of any security of the Company in connection with the offering of the
Securities.
2. Purchase and Sale. Subject to the terms and conditions and
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in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
[ ]% of the principal amount thereof, [plus accrued interest, if any, from [ ]
to the Closing Date, the principal amount of the securities set forth opposite
such Underwriter's name on Schedule I hereto.
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3. Delivery and Payment. Delivery of and payment for the Securities
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shall be made at 10:00 AM, New York City time, on [ ], or such later date (not
later than [ ]) as the Underwriters shall designate, which date and time may be
postponed by agreement between the Underwriters and the Company or as provided
in Section 8 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Underwriters for the respective accounts of the
Underwriters against payment thereby of the purchase price thereof to or upon
the order of the Company by wire transfer of immediately available funds or such
other manner of payment as may be agreed by the Company and the Underwriters.
Delivery of the Securities shall be made at such
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location as the Underwriters shall reasonably designate at least one business
day in advance of the Closing Date and payment for the Securities shall be made
at the office of Xxxxxx & Xxxxxxx ("Counsel for the Underwriters"), 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx. Certificates for the Securities shall be registered
in such names and in such denominations as the Underwriters may request not less
than three full business days in advance of the Closing Date.
The Company agrees to have the Securities available for inspection
by the Underwriters in New York, New York, not later than 1:00 PM, New York City
time, on the business day immediately prior to the Closing Date.
4. Agreements. The Company hereby agrees with each Underwriter
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that:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Securities may
commence, the Company will use its reasonable best efforts to cause the
Registration Statement or such post-effective amendment to become
effective as soon as possible and will advise you promptly and, if
requested by you, will confirm such advice in writing, when the
Registration Statement or such post-effective amendment has become
effective.
(b) The Company will advise you promptly and, if requested by you,
will confirm such advice in writing: (i) of any request by the Commission
for amendment of or supplement to the Registration Statement, any
Prepricing Prospectuses or the Prospectuses or for additional information;
and (ii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or of the suspension of
qualification of the Securities for offering or sale in any jurisdiction
or the initiation of any proceeding for such purpose. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to
obtain the withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you, without charge, one signed copy
of the Registration Statement as originally filed with the Commission and
of each amendment thereto, including financial statements and all exhibits
to the Registration Statement and will also furnish to you, without
charge, such number of conformed copies of the Registration Statement as
originally filed and of each amendment thereto, but without exhibits, as
you may reasonably request.
(d) The Company will not file any amendment to the Registration
Statement (other than any Exchange Act Documents incorporated therein) or
make any amendment or supplement to the Prospectuses (other than any
Exchange Act Documents incorporated therein) of which you shall not
previously have been advised or to which you shall reasonably object in
writing after being so advised. "Exchange Act Documents" means any
documents filed by the Company or any Subsidiary thereof with the
Commission under the
8
Exchange Act and any rules and regulations promulgated thereunder, and any
amendment or supplement thereto.
(e) Prior to the execution and delivery of this Agreement, the
Company has delivered or will deliver to you, without charge, in such
quantities as you have reasonably requested or may hereafter reasonably
request, copies of each form of the Prepricing Prospectus. The Company
consents to the use, in accordance with the provisions of the Act and with
the securities or Blue Sky laws of the jurisdictions in which the
Securities are offered by the Underwriters and by dealers, prior to the
date of the Prospectus, of each Prepricing Prospectus so furnished by the
Company.
(f) As soon as practicable after the execution and delivery of this
Agreement and thereafter from time to time for such period as in the
written opinion of counsel for the Underwriters a Prospectus is required
by the Act to be delivered in connection with sales by any Underwriter or
dealer, the Company will expeditiously deliver to each Underwriter and
each dealer, without charge, as many copies of the Prospectus (and any
amendment or supplement thereto) as you may reasonably request. The
Company consents to the use of the Prospectus (and any amendment or
supplement thereto) in accordance with the provisions of the Act and with
the securities or Blue Sky laws of the jurisdiction in which the
Securities are offered by the Underwriters and by all dealers to whom
Securities may be sold, both in connection with the offering and sale of
the Securities and for such period of time thereafter as the Prospectus is
required by the Act to be delivered in connection with sales by any
Underwriter or dealer. If during such period of time any event shall occur
that in the judgment of the Company or in the written opinion of counsel
for the Underwriters is required to be set forth in the Prospectus (as
then amended or supplemented) or should be set forth therein in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, or it is necessary to supplement or amend
the Prospectus to comply with the Act of any other law, the Company will
forthwith prepare and, subject to the provisions of paragraph (d) above,
file with the Commission an appropriate supplement or amendment thereto
and will expeditiously furnish to the Underwriters and dealers a
reasonable number of copies thereof.
(g) The Company will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of the
Securities for offering and sale by the Underwriters in connection with
the registration or qualification of the Securities for offering and sale
by the Underwriters and by dealers under the securities or Blue Sky laws
of such jurisdictions as you may reasonably designate and will file such
consents to service of process or other documents necessary or appropriate
in order to effect such registration or qualification; provided that in no
event shall the Company be obligated to qualify to do business in any
jurisdiction where it is now so qualified or to take any action that would
subject it to service of process in suits, other than those arising out of
the offering or sale of the Securities, in any jurisdiction where it is
not now so subject.
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(h) The Company will make generally available to its security
holders a consolidated earnings statement, which need not be audited,
covering a twelve-month period commencing after the effective date of the
Registration Statement and ending not later than 15 months thereafter, as
soon as reasonably practicable after the end of such period, which
consolidated earnings statement shall satisfy the provisions of Section
11(a) of the Act; provided that such requirement shall be deemed satisfied
if the Company complies with the provisions of Rule 158 of the Act.
(i) The Company will apply the net proceeds from the sale of the
Securities to be sold by it hereunder in the manner set forth in the
Prospectuses under the caption "Use of Proceeds."
(j) If Rule 430(a) of the Act is employed, the Company will timely
file the Prospectuses pursuant to Rule 424(b) under the Act and will
advise you of the time and manner of such filing.
(k) Except as stated in this Agreement and in the Prepricing
Prospectuses and Prospectuses, the Company has not taken, nor will it
take, directly or indirectly, any action designed to or that might
reasonable be expected to cause or result in stabilization or manipulation
of the price of the Common Stock to facilitate the sale or resale of the
Securities.
(l) [The Company will use its reasonable best efforts to have the
Securities listed, subject to notice of issuance, on the [ ] concurrently
with the effectiveness of the Registration Statement and permit the
Securities to be initially eligible for clearance and settlement through
The Depository Trust Company.]
5. Conditions to the Obligations of the Underwriters. The several
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obligations of the Underwriters to purchase the Securities, as provided herein,
shall be subject to the accuracy of the representations and warranties on the
part of the Company contained herein at the date and time that this Agreement is
executed and delivered by the parties hereto (the "Execution Time") and the
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Closing Date, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Securities may
commence, the Registration Statement or such post-effective amendment
shall have become effective not later than 5:30 P.M. New York City time,
on the date hereof, or at such later date and time as shall be consented
to in writing by you, and all filings, if any, required by Rules 424 and
430A under the Act shall have been timely made; no stop order suspending
the effectiveness of the Registration Statement shall have been issued and
no proceeding for that purpose shall have been instituted or, to the
10
knowledge of the Company or any Underwriter, threatened by the Commission,
and any request of the Commission for additional information (to be
included in the Registration Statement or the Prospectuses or otherwise)
shall have been complied with to your satisfaction.
(b) The Underwriters shall have received the opinion of Xxxxxxx
Xxxxxxx & Xxxxxxxx, counsel for the Company, dated the Closing Date, to
the effect that:
(i) The Registration Statement has become effective under the
Act and the Prospectuses were filed on the date specified in such
opinion pursuant to the subsection set forth in such opinion of Rule
424(b) of the rules and regulations of the Commission under the Act
and, to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued or
proceeding for that purpose has been instituted or threatened by the
Commission.
(ii) Assuming that each of this Agreement, the Indenture and
the Securities have been duly authorized, executed and delivered by
each party hereto (other than the Company), each of this Agreement,
the Indenture and the Securities constitute a valid and legally
binding obligation of such party, enforceable against such party in
accordance with its terms;
(iii) Assuming that the Securities have been duly authorized,
executed and issued by the Company and assuming due authentication
thereof by the Trustee, and upon payment and delivery in accordance
with this Agreement, the Securities will constitute valid and
legally binding obligations of the Company enforceable against the
Company in accordance with their terms and entitled to the benefits
of the Indenture;
(iv) The statements made in the Prospectuses under the
captions "Description of the [Notes]" and "Plan of Distribution,"
insofar as they purport to constitute summaries of certain terms of
documents referred to therein, constitute accurate summaries of the
terms of such documents in all material respects;
(v) The issue and sale of the Securities by the Company and
the compliance by the Company with all of the provisions of this
Agreement and the Indenture will not breach or result in a default
under any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument identified on an annexed schedule
furnished to such counsel by the Company, nor will such action
violate any Federal or New York statute or any rule or regulation
that has been issued pursuant to any Federal or New York statute or
any order known to such counsel issued pursuant to any Federal or
New
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York statute by any court or governmental agency or body or court
having jurisdiction over the Company or any of its respective
properties;
(vi) No consent, approval, authorization, order, registration
or qualification of or with any Federal or New York governmental
agency or body or, to our knowledge, any Federal or New York court
is required for the issue and sale of the Securities by the Company
and the compliance by the Company with all of the provisions of this
Agreement or the Indenture, except for such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(vii) The statements made in the Prospectuses under the
caption "Certain Income Tax Consequences - Taxation of Holders of
[Notes]-United States Federal Income Tax Considerations" insofar as
they purport to constitute summaries of matters of United States
federal tax law and regulations or legal conclusions with respect
thereto, constitute accurate summaries of the matters described
therein in all material respects; and
(viii) The Company is not an "investment company" within the
meaning of and subject to regulation under the Investment Company
Act of 1940, as amended.
Such counsel shall state that the opinions set forth in paragraphs
(ii), (iii) and (v) above are subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
Such counsel shall also state that such counsel has not
independently verified the accuracy, completeness or fairness of the statements
made or included in the Registration Statement or Prospectuses, and takes no
responsibility therefor, except as and to the extent set forth in paragraphs
(iv) and (vii) above. Such counsel shall state that in the course of the
preparation by the Company of the Registration Statement and the Prospectuses,
such counsel participated in conferences with certain officers and employees of
the Company, with representatives of [ ] and with counsel to the Company. Such
counsel shall state that based upon such counsel's examination of the
Registration Statement and the Prospectuses, such counsel's investigations made
in connection with the preparation of the Registration Statement and the
Prospectuses and such counsel's participation in the conferences referred to
above, such counsel has no reason to believe that the Registration Statement as
of its effective date and the Prospectuses as of their respective dates or the
Closing Date, contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances
12
under which they were made, not misleading, except that in each case such
counsel expresses no belief with respect to the financial statements or other
financial data contained or incorporated by reference in the Registration
Statement or any Prospectus.
Such counsel may also state that such counsel is a member of the Bar
of the State of New York and such counsel does not express any opinion therein
concerning any law other than the law of the State of New York, the Federal law
of the United States and the Delaware General Corporation Law. Such counsel may
also state that, in addition, such counsel does not express any opinion with
regard to any New York or Federal law regulating telecommunications activities
or any rules or regulations promulgated by any New York or Federal agency
(including, without limitation, the Federal Communications Commission)
thereunder.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent they deem proper, on certificates of responsible officers of
the Company and public officials. Such counsel may also make such assumptions
and qualifications as they deem proper.
(c) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxxx, Xxxxxxxx & Xxxxx, Bermuda counsel to the Company,
dated the Closing Date and addressed to the Underwriters to the effect
that:
(i) Each of the Company and each Subsidiary organized under
the laws of Bermuda as listed on a schedule to the opinion (each, a
"Bermuda Subsidiary" and together the "Bermuda Subsidiaries") is a
company duly organized, validly existing and in good standing under
the laws of Bermuda and has the requisite power to conduct its
business and authority to own its properties as described in the
Registration Statement or the Prospectuses and to enter into and
perform the respective terms and conditions of this Agreement, the
Indenture and the Securities and, in the case of the Company, to
constitute and issue the Securities;
(ii) Based solely on an Officer's Certificate of the Company,
each of the Company and each Bermuda Subsidiary is duly registered
and qualified to conduct its business and is in good standing in
each jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or qualification,
except where the failure so to register or qualify or to be in good
standing would not have a Material Adverse Effect;
(iii) The Company has taken all necessary action to authorize
the execution and delivery of this Agreement and the Indenture and
the performance by it of the transactions contemplated herein and
therein;
13
(iv) The Company has taken all necessary action to authorize
the issuance and delivery of the Securities and the performance by
it of the transactions contemplated therein;
(v) The issuance by the Company of the Securities and the
execution and delivery by the Company of, and the performance of its
obligations under and compliance with the provisions of, this
Agreement or the Indenture will not:
(a) violate any provision of any applicable law of
Bermuda, nor, as far as can be ascertained from public
records, any regulation of any governmental, judicial or
public body or authority of or in Bermuda;
(b) violate the Memorandum of Association or Bye-laws
of the Company; or
(c) result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the
Company or the Bermuda Subsidiaries;
(vi) Each of this Agreement, the Indenture and the Securities
constitute legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with its terms and,
when issued, paid for and delivered in accordance with the
provisions of the Indenture and this Agreement, the Securities will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture;
(vii) Other than as specified in such opinion, there is no
registration or filing with, or consent, license, approval,
declaration, permission, authorization, exemption or similar
instrument of, or the taking of any other action by, any person in
Bermuda which is required in connection with the issuance of the
Securities or the execution, delivery or performance of this
Agreement or the Indenture, or to ensure the legality, validity,
enforceability or admissibility in evidence of this Agreement, the
Indenture or the Securities in Bermuda;
(viii) Neither the Company nor any of its respective
properties or assets enjoys any rights of immunity from legal
proceedings in Bermuda, or from the execution of judgment upon or
attachment of such property or assets or otherwise;
(ix) The choice of the laws of the State of New York to govern
this Agreement, the Indenture and the Securities is a proper, valid
and
14
binding choice of law and will be recognized and applied by the
Courts of Bermuda, assuming that such choice of law is a valid and
binding choice of law under the laws of the State of New York and
provided that (i) the point is specifically pleaded; and (ii)
recognition would not be contrary to public policy as that term is
understood under Bermuda law;
(x) The irrevocable submission by the Company to the
jurisdiction of the New York State and Federal courts sitting in New
York for the purposes of all legal actions and proceedings
instituted in connection with the Securities and as provided for in
this Agreement, the Indenture and the Securities and the appointment
of the Process Agent contained therein constitutes the legal, valid
and binding obligation of the Company, provided that such submission
and appointment is accepted by such courts and, with respect to the
appointment of the Process Agent, provided that no other procedural
requirements are necessary in order to validate such appointment;
(xi) A final and conclusive judgment of the United States
Federal or New York State courts under which a sum of money is
payable (not being a sum payable in respect of taxes or other
charges of a like nature in respect of a fine or other penalty, or
in respect of multiple damages as defined in the Protection of
Trading Interests Act 1981), may be the subject of enforcement
proceedings in the Supreme Court of Bermuda without re-examination
of the merits of the case under the common law doctrine of
obligation by action on the debt evidenced by the foreign court's
judgment. On general principles, we would expect such proceedings to
be successful provided that the court which gave the judgment was
competent to hear the action in accordance with private
international law principles as applied in Bermuda and the judgment
is not contrary to public policy in Bermuda, has not been obtained
by fraud or in proceedings contrary to natural justice and is not
based on an error in Bermuda law. Enforcement of such a judgment
against assets in Bermuda may involve the conversion of the judgment
debt into Bermuda dollars but the Bermuda Monetary Authority has
indicated that its present policy is to give the consents necessary
to enable recovery in the currency of the obligation;
(xii) The statements in the Prospectuses under the captions
"Service of Process and Enforcement of Liabilities," "Certain Income
Tax Consequences-Bermuda Tax Considerations," and "-Taxation of
Holders of [Notes]-Bermuda Tax Considerations" insofar as they
purport to describe the provisions of the laws of Bermuda referred
to therein, are accurate and correct in all material respects; and
15
(xiii) No stamp or other issuance or transfer taxes or duties
and no capital gains, income, withholding or other taxes are payable
by or on behalf of the Underwriters to the Bermuda Government or to
any political subdivision or taxing authority thereof or therein in
connection with the execution of this Agreement or the Indenture or
the issuance of the Securities.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent they deem proper, on certificates of responsible officers of
the Company and public officials. Such counsel may also make such assumptions
and qualifications as they deem proper. Such opinion shall also state that it
may be relied upon by Xxxxxx & Xxxxxxx, as if it were addressed to them, for the
purposes of any legal opinion that such firm may be asked to deliver pursuant to
this Agreement, as well as by the Trustee.
(d) The Underwriters shall have received on the Closing Date an
opinion of [ ], special U.S. regulatory counsel to the Company, dated the
Closing Date and addressed to the Underwriters to the effect that:
(xiv) Except for such FCC consents, approvals, authorizations,
or orders that have already been obtained, no material consent,
approval, authorization, or order of the FCC is required to be
obtained by the Company under the Communications Laws for the
consummation of the transactions contemplated under this Agreement,
except that, from time to time, the Company, may be required to
obtain certain FCC authorizations that would be required in the
ordinary course of business.
(xv) The execution and delivery of, and the consummation of
the transactions contemplated under, this Agreement, the Indenture
and the Securities by the Company do not and will not materially
violate any provision of the Communications Laws.
(xvi) The statements made under the captions "Business--
Regulation" and "Risk Factors and Forward-Looking Statements--Our
operations are subject to regulation int he United States and abroad
and require us to obtain and maintain a number of governmental
licenses and permits. If we fail to comply with those regulatory
requirements or obtain and maintain those licenses and permits, we
may not be able to conduct our business" in the Company's annual
report on Form 10-K for the year ended December 31, 1999,
incorporated by reference in the Registration Statement, insofar as
such statements purport to constitute a summary of the material
regulatory matters covered therein under the Communications Laws,
fairly present the information contained therein in light of the
subject matter of such statements and the circumstances in which
such statements were made.
16
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent they deem proper, on certificates of responsible officers of
the Company, other Subsidiaries and public officials. Such counsel may also make
such assumptions and qualifications as they deem proper.
All references in these Sections 5(b), (c) and (d) to the
Prospectuses shall be deemed to include any amendment or supplement
thereto at the Closing Date.
(e) The Underwriters shall have received from Xxxxxx & Xxxxxxx,
Counsel for the Underwriters an opinion, dated the Closing Date, with
respect to the issuance and sale of the Securities, the Registration
Statement and the Prospectuses (as amended or supplemented at the Closing
Date) and other related matters as the Underwriters may reasonably
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(f) The Company shall have furnished to the Underwriters a
certificate of the Company, signed by either the Co-Chairman of the Board
or the Chief Executive Officer and the principal acting financial or
accounting officer of such entity, dated the Closing Date, to the effect
that the signers of such certificate have carefully examined the
Registration Statement, the Prospectuses, any amendment or supplement
thereto and this Agreement and that:
(i) the representations and warranties of the Company set
forth in this Agreement are true and correct on and as of the
Closing Date with the same effect as if made on the Closing Date,
and the Company have complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date; and since the date of the
most recent financial statements included in the Registration
Statement and the Prospectuses, there has been no material adverse
change in the business, assets, condition (financial or otherwise)
or results of operations of the Company or the Subsidiaries, taken
as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated by the
Registration Statement or the Prospectuses (exclusive of any
amendment or supplement thereto).
(g) On the Pricing Date, [ ] shall have furnished to the
Underwriters a "comfort" letter, dated as of the Pricing Date, in form and
substance satisfactory to the Underwriters, and on the Closing Date, [ ]
shall have furnished to the Underwriters a "bring-down comfort" letter,
dated as of the Closing Date, in form and substance satisfactory to the
Underwriters.
(h) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Prospectuses, there shall not have been
(i) any change or decrease
17
specified in the letters referred to in paragraph (i) of this Section 5 or
(ii) any change, or any development involving a prospective change, in or
affecting the business or properties of the Company or the Subsidiaries,
taken as a whole, the effect of which is, in the reasonable judgment of
the Underwriters, so material and adverse as to make it impractical or
inadvisable to market the Securities as contemplated by the Prospectuses.
(i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been taken or, to the knowledge of the Company, shall have been
contemplated by the Commission at or prior to the Closing Date;
(j) Prior to the Closing Date, the Company shall have furnished to
the Underwriters such further information, certificates and documents as
the Underwriters may reasonably request.
[(k) The Securities shall have been approved for listing, subject
to notice of issuance, on the [ ].]
If any of the conditions specified in this Section 5 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Underwriters and Counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Underwriters. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 will be
delivered at the office of Counsel for the Underwriters at 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, xx the Closing Date.
6. Reimbursement of Expenses. If the sale of the Securities provided
--------------------------
for herein is not consummated because any condition to the obligations of the
Underwriters set forth in Section 6 hereof is not satisfied or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters in payment for the Securities on the Closing
Date, the Company agrees to reimburse the Underwriters severally upon demand for
all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
7. Indemnification and Contribution.
--------------------------------
(a) The Company hereby agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each
18
person who controls any Underwriter within the meaning of either the Act
or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or
any Prospectus or Prepricing Prospectus or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agree to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or
omission or alleged omission (i) made in the Registration Statement or any
Prospectus or Prepricing Prospectus, or in any amendment or supplement
thereto, in reliance upon and in conformity with written information
furnished to the Company by the Underwriters specifically for inclusion
therein or (ii) made in the Prepricing Prospectus if such untrue statement
or alleged untrue statement or omission or alleged omission made in the
Prepricing Prospectus is eliminated or remedied in the Prospectus (as
amended or supplemented, if applicable) and a copy of the Prospectus shall
not have been furnished to the person asserting such loss, claim, damage
or liability at or prior to the written confirmation of the sale of
Securities to such person. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, officers, employees and agents and each person
who controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Company by or on
behalf of such Underwriter specifically for inclusion in the Prepricing
Prospectus, the Prospectus or the Registration Statement (or in any
amendment or supplement thereto). This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have. The
Company acknowledges for all purposes under this Section 7 (including
Section 7(a) above) that the statements set forth in [ ] in the
Prospectus, constitute the only information furnished in writing by the
Underwriters for inclusion in the Preliminary Prospectus or the Prospectus
(or in any amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph
(a) or (b) above unless and to the
19
extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided,
however, that such counsel shall be satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
the institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceeding in the
same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all indemnified
parties, and that all such fees and expenses shall be reimbursed as they
are incurred. Any such separate firm for the Underwriters and such control
persons shall be designated in writing by the first of the named
Underwriters on Schedule I hereto and any such separate firm of the
----------
Company, its directors, its officers and such control persons of the
Company shall be designated in writing by the Company. An indemnifying
party will not, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 7 is unavailable to hold harmless an indemnified party for
any reason, the Company and the Underwriters agree to contribute to the
aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating or
defending same) (collectively, "Losses") to which the Company and one or
------
more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative
20
benefits received by the Company, on the one hand, and by the
Underwriters, on the other hand, from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among the Underwriters relating to the offering
of the Securities) be responsible for any amount in excess of the purchase
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company, on the one hand, and of the Underwriters, on the other hand, in
connection with the statements or omissions which resulted in such Losses
as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the total net proceeds from
the offering (before deducting expenses), and benefits received by the
Underwriters shall be deemed to be equal to the total purchase discounts
and commissions received by the Underwriters from the Company in
connection with the purchase of the Securities hereunder. Relative fault
shall be determined by reference to whether any alleged untrue statement
or omission relates to information provided by the Company or the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contribution were determined by pro rata allocation or
any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions
of this paragraph (d), no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning
of either the Act or the Exchange Act and each officer and director of the
Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
The remedies provided in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
8. Default by an Underwriter. If any one or more Underwriters shall
--------------------------
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter hereunder, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
aggregate principal amount of Securities to be purchased set forth opposite
their names on Schedule I hereto bears to the number of Securities set forth
----------
opposite the names of the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate principal amount of the Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate principal amount of the Securities set forth
on Schedule I hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to
21
purchase any, of the Securities, and if such non-defaulting Underwriters do not
purchase all the Securities, this Agreement will terminate without liability to
any non-defaulting Underwriter or the Company. In the event of a default by an
Underwriter as set forth in this Section 8, the Closing Date shall be postponed
for such period, not exceeding seven days, as the Underwriters shall determine
in order that the required changes in the Registration Statement, Prospectuses
or in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of any liability it may
have to the Issuers or the non-defaulting Underwriter for damages occasioned by
its default hereunder.
9. Termination. This Agreement shall be subject to termination in
------------
the absolute discretion of the Underwriters, by notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time (i)
trading in securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
exchange, (ii) a banking moratorium shall have been declared either by Federal
or New York State authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States or Bermuda of a
national emergency or war or other calamity or crisis the effect of which on
financial markets is such as to make it, in the judgment of the Underwriters,
impracticable or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement or any Prospectus.
10. Representations and Indemnities to Survive. The respective
-------------------------------------------
agreements, representations, warranties and indemnities of the Company and its
officers and of the Underwriters set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made by or
on behalf of the Underwriters or the Company or any of its officers, directors
or controlling persons referred to in Section 7 hereof, and will survive
delivery of and payment for the Securities. The provisions of Sections 6 and 7
hereof shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
--------
effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or sent via facsimile and confirmed to them, care of [ ]; or, if sent
to the Company, will be mailed, delivered or sent via facsimile and confirmed to
it at Wessex House, 00 Xxxx Xxxxxx, Xxxxxxxx XX 12 Bermuda, attention: Secretary
of the Company.
12. Successors. This Agreement will inure to the benefit of and be
-----------
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
----------------
construed in accordance with the laws of the State of New York.
22
14. Business Day. For purposes of this Agreement, "business day"
-------------
means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on
which banking institutions in The City of New York, New York are authorized or
obligated by law, executive order or regulation to close.
15. Counterparts. This Agreement may be executed in one or more
-------------
counterparts, each of which will be deemed to be an original, but all such
counterparts will together constitute one and the same instrument.
16. Submission to Jurisdiction; Appointment of Agents for
-----------------------------------------------------------
Service; Currency Indemnity.
---------------------------
(a) To the fullest extent permitted by applicable law, the Company
irrevocably submits to the jurisdiction of any Federal or State court
located in the Borough of Manhattan in The City of New York, New York in
any suit, action or proceeding based on or arising out of or relating to
this Agreement, the Securities and irrevocably agrees that all claims in
respect of such suit or proceeding may be determined in any such court.
The Company irrevocably waives, to the fullest extent permitted by law,
any objection which it may have to the laying of the venue of any such
suit, action or proceeding brought in such a court and any claim that any
suit, action or proceeding brought in such a court has been brought in an
inconvenient forum. The Company agrees that final judgment in any such
suit, action or proceeding brought in such a court shall be conclusive and
binding upon the Company and may be enforced in the courts of Bermuda (or
any other courts to the jurisdiction of which the Company is subject) by a
suit upon such judgment, provided that service of process is effected upon
--------
the Company in the manner specified herein or as otherwise permitted by
law. The Company hereby irrevocably designates and appoints CT Corporation
System, [ ], New York, New York (the "Process Agent") as the authorized
-------------
agent of the Company upon whom process may be served in any such suit or
proceeding, it being understood that the designation and appointment of
the Process Agent as such authorized agent shall become effective
immediately without any further action on the part of the Company. The
Company represents to the Underwriters that they have notified the Process
Agent of such designation and appointment and that the Process Agent has
accepted the same in writing. The Company irrevocably authorizes and
directs the Process Agent to accept such service. The Company further
agrees that service of process upon the Process Agent and written notice
of said service to the Company mailed by prepaid registered first class
mail or delivered to the Process Agent at its principal office shall be
deemed in every respect effective service of process upon the Company in
any such suit or proceeding. Nothing herein shall affect the right of the
Underwriters or any person controlling the Underwriters to serve process
in any other matter permitted by law. The Company further agrees to take
any and all action, including the execution and filing of any and all such
documents and instruments as may be necessary to continue such designation
and appointment of the Process Agent in full force and effect so long as
the Company has any outstanding obligations under this Agreement, the
Indenture or the Securities. To the extent that the Company has or
hereafter may acquire
23
any immunity from jurisdiction of any court or from any legal process
(whether through service of note, attachment prior to judgment, attachment
in aid of execution, executor or otherwise) with respect to itself or its
property, the Company hereby irrevocably waives such immunity in respect
of its obligations under this Agreement, to the extent permitted by law.
(b) The obligation of the parties to make payments hereunder for the
Securities is in U.S. dollars (the "Obligation Currency") and such
-------------------
obligation shall not be discharged or satisfied by any tender or recovery
pursuant to any judgment expressed in or converted into any currency other
than the Obligation Currency or any other realization in such other
currency, whether as proceeds of set-off, security, guarantee,
distributions, or otherwise, except to the extent such tender, recovery or
realization shall result in the effective receipt by the party which is to
receive such payment (as an additional, separate and independent
obligation) for the amount (if any) by which such effective receipt is
less that the full amount of the Obligation Currency payable hereunder and
such obligation to indemnify shall not be affected by judgment being
obtained for any other sums due under this Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement between
the Company and the Underwriters.
[Purchase Agreement Signature Pages Follow]
24
Very truly yours,
Global Crossing Ltd.
By_______________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
[ ]
By: [ ]
By:____________________________
Name:
Title:
By: [ ]
By:____________________________
Name:
Title:
For themselves and the other Underwriters
25
SCHEDULE I
Principal Amount
of Securities
Underwriters to be Purchased
------------ -----------------
