<PAGE>
As filed with the Securities and Exchange Commission on March 21, 2000
Registration No. 333-32810
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
PRE-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
GLOBAL CROSSING LTD.
(Exact name of registrant as specified in its charter)
---------------
Bermuda 4813 98-0189783
(State or other (Primary standard industrial (I.R.S. employer
jurisdiction of classification number) identification
incorporation or number)
organization)
Wessex House
45 Reid Street
Hamilton HM12, Bermuda
(441) 296-8600
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
---------------
CT Corporation System
1633 Broadway
New York, NY 10019
(212) 479-8200
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------
Copies to:
<TABLE>
<S> <C>
D. RHETT BRANDON, ESQ. JAMES C. GORTON, ESQ.
Simpson Thacher & Bartlett Global Crossing Ltd.
425 Lexington Avenue 360 N. Crescent Drive
New York, NY 10017 Beverly Hills, CA 90210
(212) 455-2000 (310) 385-5200
</TABLE>
---------------
Approximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes effective as
determined by market conditions and other factors.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
---------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which shall specifically state that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933, as amended, or until the
Registration Statement shall become effective on such date as the Securities
and Exchange Commission, acting pursuant to said Section 8(a), may determine.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
Please note that, in this pre-effective amendment no. 1, we are only filing
Part II of this registration statement, including the exhibits indicated in
item 16 of this document. You may find a copy of the prospectus that is a part
of this registration statement in our filing of this registration statement
dated March 20, 2000.
<PAGE>
PART II
Item 14. Other Expenses of Issuance and Distribution.
The registrant estimates that expenses in connection with the offering
described in this Registration Statement will be as follows:
<TABLE>
<S> <C>
SEC registration fee.......................................... $
Nasdaq National Market listing fee............................
Bermuda Stock Exchange listing fee............................
Printing and engraving expenses...............................
Accounting fees and expenses..................................
Blue Sky fees and expenses....................................
Transfer agent and registrar fees.............................
Miscellaneous.................................................
---
Total....................................................... $
</TABLE>
Item 15. Indemnification of Directors and Officers.
The Bye-laws of the Registrant provide for indemnification of the
Registrant's officers and directors against all liabilities, loss, damage or
expense incurred or suffered by such party as an officer or director of the
Registrant; provided that such indemnification shall not extend to any matter
which would render it void pursuant to the Companies Act of 1981 as in effect
from time to time in Bermuda.
The Companies Act provides that a Bermuda company may indemnify its
directors in respect of any loss arising or liability attaching to them as a
result of any negligence, default, breach of duty or breach of trust of which
they may be guilty. However, the Companies Act also provides that any
provision, whether contained in the company's bye-laws or in a contract or
arrangement between the company and the director, indemnifying a director
against any liability which would attach to him in respect of his fraud or
dishonesty will be void.
The directors and officers of the Registrant are covered by directors' and
officers' insurance policies maintained by the Registrant.
Item 16. Exhibits.
The following is a complete list of Exhibits filed as part of this
Registration Statement, which are incorporated herein:
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
------- -------------------
<C> <S>
1.1 Form of Underwriting Agreement for [Common Stock] [Preferred Stock]
(filed herewith).
1.2 Form of Underwriting Agreement for [Convertible] [Senior]
[Subordinated] Debt Securities (filed herewith).
2.1 Agreement and Plan of Merger, dated as of March 16, 1999 (the
"Frontier Merger Agreement"), among the Registrant, Frontier
Corporation and GCF Acquisition Corp. (incorporated by reference to
Exhibit 2 to the Registrant's Current Report on Form 8-K filed on
March 19, 1999 (the "March 19, 1999 8-K")).
2.2 Consent and Amendment No. 1 to the Frontier Merger Agreement, dated as
of May 16, 1999, among the Registrant, GCF Acquisition Corp. and
Frontier Corporation (incorporated by reference to Exhibit 2 to the
Registrant's Current Report on Form 8-K filed on May 18, 1999 (the
"May 18, 1999 8-K")).
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
------- -------------------
<C> <S>
2.3 Amendment No. 2 to the Frontier Merger Agreement, dated as of
September 2, 1999, among the Registrant, GCF Acquisition Corp. and
Frontier Corporation (incorporated by reference to Exhibit 2 to the
Registrant's Current Report on Form 8-K filed on September 3, 1999
(the "September 3, 1999 8-K")).
2.4 Sale and Purchase Agreement, dated as of April 26, 1999, between Cable
& Wireless plc and the Registrant (incorporated by reference to
Exhibit 2.1 to the Registrant's Current Report on Form 8-K filed on
July 16, 1999 (the "July 16, 1999 8-K")).
2.5 Amendment to the Sale and Purchase Agreement, dated as of June 25,
1999, between Cable & Wireless plc and the Registrant (incorporated by
reference to Exhibit 2.2 to the July 16, 1999 8-K).
2.6 Agreement and Plan of Merger, dated as of May 16, 1999, between the
Registrant and U S West, Inc. (incorporated by reference to Exhibit 2
to the Registrant's Current Report on Form 8-K filed on May 21, 1999
(the "May 21, 1999 8-K")).
2.7 Letter Agreement, dated as of May 16, 1999, between the Registrant and
U S West, Inc. (incorporated by reference to Exhibit 99 to the May 21,
1999 8-K).
2.8 Termination Agreement, dated as of July 18, 1999, between the
Registrant and U S West, Inc. (incorporated by reference to Exhibit
10.1 to the Registrant's Current Report on Form 8-K filed on July 20,
1999 (the "July 20, 1999 8-K")).
2.9 Agreement and Plan of Merger, dated as of February 22, 2000, among the
Registrant, Georgia Merger Sub Corporation, IPC Communications, Inc.,
IPC Information Systems, Inc., Idaho Merger Sub Corporation and IXnet,
Inc. (incorporated by reference to Exhibit 2.10 to Registrant's annual
report on Form 10-K for the year ended December 31, 1999).
3.1 Memorandum of Association of the Registrant (incorporated by reference
to Exhibit 3.1 to the Registrant's Registration Statement on Form S-
1/A filed on July 2, 1998 (the "July 2, 1998 S-1/A")).
3.2 Certificate of Incorporation of Change of Name of the Registrant dated
April 30, 1998 (incorporated by reference to Exhibit 3.3 to the
Registrant's Registration Statement on Form S-1/A filed on July 23,
1998 (the "July 23, 1998 S-1/A")).
3.3 Memorandum of Increase of Share Capital of the Registrant dated July
9, 1998 (incorporated by reference to Exhibit 3.4 to the July 23, 1998
S-1/A).
3.4 Memorandum of Increase of Share Capital of the Registrant dated
September 27, 1999 (incorporated by reference to Exhibit 3.1 to the
Registrant's Quarterly Report on Form 10-Q filed on November 15, 1999
(the "November 15, 1999 10-Q")).
3.5 Bye-laws of the Registrant as in effect on October 14, 1999
(incorporated by reference to Exhibit 3.2 to the November 15, 1999 10-
Q).
3.6 Certificate of Designations of 6 3/8% Cumulative Convertible Preferred
Stock of the Registrant dated November 5, 1999 (incorporated by
reference to Exhibit 3.3 to the November 15, 1999 10-Q).
3.7 Certificate of Designations of 7% Cumulative Convertible Preferred
Stock of the Registrant, dated December 15, 1999 (incorporated by
reference to Exhibit 3.9 to the Global Crossing Holdings Ltd.
Registration Statement on Form S-4 filed on January 11, 2000 (File No.
333-94449)).
3.8 Certificate of Designations of 6 3/8% Cumulative Convertible Preferred
Stock, Series B, of the Registrant, dated January 12, 2000
(incorporated by reference to Registrant's annual report on Form 10-K
for the year ended December 31, 1999).
4.1 Certificate of Designations of 10 1/2% Senior Exchangeable Preferred
Stock Due 2008 of Global Crossing Holdings Ltd. dated December 1, 1998
(incorporated by reference to Schedule A to Exhibit 3.2 to the Global
Crossing Holdings Ltd. Registration Statement on Form S-4 filed on
December 22, 1998.)
4.2 Indenture, dated as of May 18, 1998, between Global Crossing Holdings
Ltd. and United States Trust Company of New York, as Trustee
(incorporated by reference to Exhibit 4.2 to the Global Crossing
Holdings Ltd. Registration Statement on Form S-4 filed on December 22,
1998).
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
------- -------------------
<C> <S>
4.3 Supplemental Indenture, dated as of June 25, 1999, between Global
Crossing Holdings Ltd. and United States Trust Company of New York, to
the Indenture dated as of May 18, 1998 (incorporated by reference to
Exhibit 4.4 to the Registrant's Registration Statement on Form S-4
filed on July 12, 1999).
4.4 Credit Agreement, dated as of July 2, 1999, among the Registrant,
Global Crossing Holdings Ltd., the Lenders party thereto and The Chase
Manhattan Bank as Administrative Agent (incorporated by reference to
Exhibit 10.7 to the Registrant's Registration Statement on Form S-4/A
filed on August 5, 1999).
4.5 Indenture, dated as of November 19, 1999, among Global Crossing Ltd.,
Global Crossing Holdings Ltd. and United States Trust Company of New
York (incorporated by reference to Exhibit 4.5 to the Global Crossing
Holdings Ltd. Registration Statement on Form S-4 filed on January 11,
2000 (File No. 333-94449)).
Except as hereinabove provided, there is no instrument with respect to
long-term debt of the Registrant and its consolidated subsidiaries
under which the total authorized amount exceeds 10 percent of the
total consolidated assets of the Registrant. The Registrant agrees to
furnish to the SEC upon its request a copy of any instrument relating
to long-term debt.
4.6 Form of Indenture between the Registrant and United States Trust
Company of New York, as Trustee (filed herewith).
4.7 Form of Certificate of Designations, Powers, Preferences and Rights
for Preferred Stock (filed herewith).
4.8 Form of Common Stock Certificate. (The Form of Common Stock
Certificate included as Exhibit 4.1 to the Registrant's registration
statement on Form S-1 filed on July 23, 1998 is hereby incorporated
herein by reference.)
4.9 Form of Preferred Stock Certificate (filed herewith).
4.10 Form of Debt Warrant Agreement (filed herewith).
4.11 Form of Equity Warrant Agreement (filed herewith).
4.12 Form of Debt Security (filed herewith).
5.1 Opinion of Appleby, Spurling & Kempe (to be filed by amendment).
10.1 Project Development and Construction Contract, dated as of March 18,
1997, among AT&T Submarine Systems, Inc. and Atlantic Crossing Ltd.
(formerly Global Telesystems Ltd.) (incorporated by reference to
Exhibit 10.2 to the July 23, 1998 S-1/A).
10.2 Project Development and Construction Contract, dated as of April 21,
1998, among Tyco Submarine Systems, Ltd. and Pacific Crossing Ltd.
(incorporated by reference to Exhibit 10.3 to the July 23, 1998 S-
1/A).
10.3 Project Development and Construction Contract, dated as of June 2,
1998, among Alcatel Submarine Networks and Mid-Atlantic Crossing Ltd.
(incorporated by reference to Exhibit 10.4 to the July 23, 1998 S-
1/A).
10.4 Project Development and Construction Contract, dated as of July 21,
1998, among Tyco Submarine Systems, Ltd. and Pan American Crossing
Ltd. (incorporated by reference to Exhibit 10.5 to the Registrant's
Quarterly Report on Form 10-Q filed on November 16, 1998).
10.5 Project Development and Construction Contract, dated as of July 30,
1999, among Alcatel Submarine Networks and South American Crossing
Ltd. (incorporated by reference to Exhibit 10.5 to the Global Crossing
Holdings Ltd. Registration Statement on Form S-4 filed on January 11,
2000 (File No. 333-94449) (portions have been omitted pursuant to a
request for confidential treatment).
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
------- -------------------
<C> <S>
10.6 Lease made as of October 1, 1999 between North Crescent Realty V, LLC
and Global Crossing Development Company (incorporated by reference to
Exhibit 10.1 to the November 15, 1999 10-Q).
10.7 Form of Stockholders Agreement dated as of August 12, 1998 among the
Registrant and the investors named therein (incorporated by reference
to Exhibit 9.1 to the July 23, 1998 S-1/A).
10.8 Form of Registration Rights Agreement dated as of August 12, 1998
among the Registrant and the investors named therein (incorporated by
reference to Exhibit 4.4 to the July 23, 1998 S-1/A).
10.9 Voting Agreement, dated as of March 16, 1999, among certain
shareholders of the Registrant parties thereto, Frontier Corporation
and, for certain purposes only, the Registrant (incorporated by
reference to Exhibit 10.2 to the March 19, 1999 8-K).
10.10 Second Reaffirmation of Voting Agreement and Share Transfer
Restriction Agreement, dated as of September 2, 1999 (incorporated by
reference to Annex S-B to the joint proxy statement/prospectus
supplement included in the Registrant's Registration Statement on Form
S-4 filed on September 8, 1999 (the "September 8, 1999 S-4").
10.11 Share Transfer Restriction Agreement, dated as of September 2, 1999,
among certain shareholders of Global Crossing Ltd., certain
shareholders of Frontier Corporation and Global Crossing Ltd.
(incorporated by reference to Annex S-C to the joint proxy
statement/prospectus supplement included in the September 8, 1999 S-
4).
10.12 Tender Offer and Purchase Agreement, dated as of May 16, 1999, between
the Registrant and U S WEST, Inc. (incorporated by reference to
Exhibit (c)(2) to U S WEST, Inc.'s Schedule 14D-1 filed on May 21,
1999).
10.13 Standstill Agreement dated as of May 16, 1999 between U S WEST, Inc.
and the Registrant (incorporated by reference to Exhibit (c)(4) to U S
WEST, Inc.'s Schedule 14D-1 filed on May 21, 1999).
10.14 Voting Agreement dated as of May 16, 1999 between U S WEST, Inc. and
the Registrant (incorporated by reference to Exhibit (c)(3) to U S
WEST, Inc.'s Schedule 14D-1 filed on May 21, 1999).
10.15 Tender and Voting Agreement dated as of May 16, 1999 among U S WEST,
Inc., the Registrant and the shareholders party thereto (incorporated
by reference to Exhibit (c)(5) to U S WEST, Inc.'s Schedule 14D-1
filed on May 21, 1999).
10.16 Agreement dated as of May 16, 1999 among the Registrant and the
shareholders party thereto (incorporated by reference to Exhibit
(c)(6) to U S WEST, Inc.'s Schedule 14D-1 filed on May 21, 1999).
10.17 Transfer Agreement dated as of May 16, 1999 among the Registrant and
the shareholders party thereto (incorporated by reference to Exhibit
(c)(8) to U S WEST, Inc.'s Schedule 14D-1 filed on May 21, 1999).
10.18 Amendment No. 1 dated as of July 18, 1999 to Tender Offer and Purchase
Agreement dated as of May 16 1999 between the Registrant and U S WEST,
Inc. (incorporated by reference to Exhibit 10.2 to the July 20, 1999
8-K).
10.19 Agreement, dated as of July 18, 1999, between Qwest Communications
International Inc. and the Registrant (incorporated by reference to
Exhibit 10.3 to the July 20, 1999 8-K).
10.20 Agreement, dated as of July 18, 1999, between Global Crossing Holdings
Ltd. and Qwest Communications International Inc. (incorporated by
reference to Exhibit 10.4 to the July 20, 1999 8-K).
10.21 Registration Rights Agreement, dated as of November 5, 1999, among the
Registrant and the initial purchasers of the Registrant's 6 3/8%
Cumulative Convertible Preferred Stock named therein (incorporated by
reference to Exhibit 10.21 to the Registrant's Registration Statement
on Form S-3 (File No. 333-94805) filed on January 18, 2000).
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
------- -------------------
<C> <S>
10.22 1998 Global Crossing Ltd. Stock Incentive Plan, as amended and
restated effective December 7, 1999 (incorporated by reference to
Exhibit 10.21 to the Global Crossing Holdings Ltd. Registration
Statement on Form S-4 filed on January 11, 2000 (File No. 333-94449)).
10.23 Form of Non-Qualified Stock Option Agreement as in effect on September
30, 1999 (incorporated by reference to Exhibit 10.2 to the November
15, 1999 10-Q).
10.24 Frontier Corporation Supplemental Retirement Savings Plan as amended
and restated effective January 1, 1996 (incorporated by reference to
Exhibit 10.13 to Frontier Corporation's Annual Report on Form 10-K
filed March 28, 1997).
10.25 Amendment No. 1, effective March 16, 1999, to Frontier Corporation
Supplemental Retirement Savings Plan (incorporated by reference to
Exhibit 10.2 to Frontier Corporation's Quarterly Report on Form 10-Q
filed August 3, 1999).
10.26 Amendment No. 2, dated September 21, 1999, to Frontier Corporation
Supplemental Retirement Savings Plan (incorporated by reference to
Exhibit 10.5 to the November 15, 1999 10-Q).
10.27 Employment Agreement dated as of February 19, 1999 between the
Registrant and Robert Annunziata (incorporated by reference to Exhibit
10.8 to the Registrant's Quarterly Report on Form 10-Q filed on May
10, 1999).
10.28 Executive Contract dated January 1, 1998 between Joseph P. Clayton and
Frontier Corporation (incorporated by reference to Exhibit 10.22 to
Frontier Corporation's Annual Report on Form 10-K filed March 26,
1998).
10.29 Amendment dated May 1, 1999 to Executive Contract between Joseph P.
Clayton and Frontier Corporation (incorporated by reference to Exhibit
10.9 to the November 15, 1999 10-Q).
10.30 Sale Agreement, dated October 10, 1999, among Controls and
Communications Limited, The Racal Corporation, Racal Electronics plc
and the Registrant (incorporated by reference to Exhibit 2.1 of the
Registrant's Current Report on Form 8-K filed on October 21, 1999).
10.31 Subscription and Sale and Purchase Agreement, dated November 15, 1999,
among Hutchison Whampoa Limited, Hutchison Telecommunications Limited,
the Registrant and HCL Holdings Limited (incorporated by reference to
Exhibit 10.33 to the Global Crossing Holdings Ltd. Registration
Statement on Form S-4 filed on January 11, 2000 (File No. 333-94449)).
10.32 Registration Rights Agreement, dated as of December 15, 1999, among
the Registrant and the initial purchasers of the Registrant's 7%
Cumulative Convertible Preferred Stock named therein (incorporated by
reference to Exhibit 10.21 to the Registrant's Registration Statement
on Form S-3 (File No. 333-94803) filed on January 18, 2000).
10.33 Employment Agreement, dated as of December 5, 1999, between the
Registrant and Leo J. Hindery, Jr. (incorporated by reference to
Exhibit 10.32 to the Registrant's annual report on Form 10-K for the
year ended December 31, 1999).
10.34 Form of Change in Control Agreement between the Registrant and
Executive Officers of the Registrant approved by the Board of
Directors in January 2000 (incorporated by reference to Exhibit 10.33
to the Registrant's annual report on Form 10-K for the year ended
December 31, 1999).
10.35 Employment Agreement, dated as of December 3, 1999, between the
Registrant and John A. Scarpati (incorporated by reference to Exhibit
10.36 to Registrant's annual report on Form 10-K for the year ended
December 31, 1999).
12.1 Statement of Computation of Earnings to Fixed Charges (incorporated by
reference to Exhibit 12.1 to Registrant's annual report on Form 10-K
for the year ended December 31, 1999).
21.1 Subsidiaries of the Registrant (incorporated by reference to Exhibit
21.1 to Registrant's annual report on Form 10-K for the year ended
December 31, 1999).
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
------- -------------------
<C> <S>
23.1 Consent of Arthur Andersen (filed herewith).
23.2 Consent of PricewaterhouseCoopers LLP (filed herewith).
23.3 Consent of KPMG Audit Plc (filed herewith).
23.4 Consent of Deloitte & Touche (filed herewith).
23.5 Consent of PricewaterhouseCoopers (filed herewith).
23.6 Consent of Appleby, Spurling & Kempe (included in Exhibit 5.1).
24.1 Power of Attorney of the Registrant (previously filed with this
Registration Statement).
</TABLE>
Item 17. Undertakings.
(1) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at the time shall be deemed to be
the initial bona fide offering thereof.
(2) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(3) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
II-6
<PAGE>
(b) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(c) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(d) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Los Angeles, State of California, on March 21, 2000.
Global Crossing Ltd.
By: /s/ Dan J. Cohrs
----------------------------------
Name: Dan J. Cohrs
Title: Senior Vice President and
Chief FinancialOfficer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/*/ Chairman of the Board and March 21, 2000
___________________________________________ Director
Gary Winnick
/*/ Co-Chairman of the Board March 21, 2000
___________________________________________ and Director
Lodwrick M. Cook
/*/ Vice Chairman of the Board March 21, 2000
___________________________________________ and Director
Thomas J. Casey
/*/ Director; Vice Chairman of March 21, 2000
___________________________________________ the Board, Asia Global
Jack M. Scanlon Crossing
/*/ Chief Executive Officer March 21, 2000
___________________________________________ and Director; Chairman
Leo J. Hindery and Chief Executive
Officer, GlobalCenter,
Inc.
/*/ President, Chief Operating March 21, 2000
___________________________________________ Officer and Director
David L. Lee
</TABLE>
II-8
<PAGE>
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/*/ Director, President, March 21, 2000
___________________________________________ Global Crossing North
Joseph P. Clayton America
/*/ Senior Vice President and March 21, 2000
___________________________________________ Director
Barry Porter
/*/ Senior Vice President and March 21, 2000
___________________________________________ Chief Financial Officer
Dan J. Cohrs (principal financial
officer and principal
accounting officer)
___________________________________________ Director
Abbott Brown
/*/ Director March 21, 2000
___________________________________________
Jay R. Bloom
/*/ Director March 21, 2000
___________________________________________
William E. Conway, Jr.
/*/ Director March 21, 2000
___________________________________________
Dean C. Kehler
/*/ Director March 21, 2000
___________________________________________
Geoffrey J.W. Kent
/*/ Director March 21, 2000
___________________________________________
Bruce Raben
/*/ Director March 21, 2000
___________________________________________
Michael R. Steed
/*/ Director March 21, 2000
___________________________________________
Robert Annunziata
/*/ Director March 21, 2000
___________________________________________
James F. McDonald
/*/ Director March 21, 2000
___________________________________________
Eric Hippeau
/*/ Director March 21, 2000
___________________________________________
Douglas H. McCorkindale
Director
___________________________________________
Cunning Fok
* By Power-of-Attorney
/s/ Dan J. Cohrs Attorney-in-Fact March 21, 2000
___________________________________________
Dan J. Cohrs
</TABLE>
II-9
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
------- -------------------
<C> <S>
1.1 Form of Underwriting Agreement for [Common Stock] [Preferred Stock]
(filed herewith).
1.2 Form of Underwriting Agreement for [Convertible] [Senior]
[Subordinated] Debt Securities (filed herewith).
2.1 Agreement and Plan of Merger, dated as of March 16, 1999 (the
"Frontier Merger Agreement"), among the Registrant, Frontier
Corporation and GCF Acquisition Corp. (incorporated by reference to
Exhibit 2 to the Registrant's Current Report on Form 8-K filed on
March 19, 1999 (the "March 19, 1999 8-K")).
2.2 Consent and Amendment No. 1 to the Frontier Merger Agreement, dated as
of May 16, 1999, among the Registrant, GCF Acquisition Corp. and
Frontier Corporation (incorporated by reference to Exhibit 2 to the
Registrant's Current Report on Form 8-K filed on May 18, 1999 (the
"May 18, 1999 8-K")).
2.3 Amendment No. 2 to the Frontier Merger Agreement, dated as of
September 2, 1999, among the Registrant, GCF Acquisition Corp. and
Frontier Corporation (incorporated by reference to Exhibit 2 to the
Registrant's Current Report on Form 8-K filed on September 3, 1999
(the "September 3, 1999 8-K")).
2.4 Sale and Purchase Agreement, dated as of April 26, 1999, between Cable
& Wireless plc and the Registrant (incorporated by reference to
Exhibit 2.1 to the Registrant's Current Report on Form 8-K filed on
July 16, 1999 (the "July 16, 1999 8-K")).
2.5 Amendment to the Sale and Purchase Agreement, dated as of June 25,
1999, between Cable & Wireless plc and the Registrant (incorporated by
reference to Exhibit 2.2 to the July 16, 1999 8-K).
2.6 Agreement and Plan of Merger, dated as of May 16, 1999, between the
Registrant and U S West, Inc. (incorporated by reference to Exhibit 2
to the Registrant's Current Report on Form 8-K filed on May 21, 1999
(the "May 21, 1999 8-K")).
2.7 Letter Agreement, dated as of May 16, 1999, between the Registrant and
U S West, Inc. (incorporated by reference to Exhibit 99 to the May 21,
1999 8-K).
2.8 Termination Agreement, dated as of July 18, 1999, between the
Registrant and U S West, Inc. (incorporated by reference to Exhibit
10.1 to the Registrant's Current Report on Form 8-K filed on July 20,
1999 (the "July 20, 1999 8-K")).
2.9 Agreement and Plan of Merger, dated as of February 22, 2000, among the
Registrant, Georgia Merger Sub Corporation, IPC Communications, Inc.,
IPC Information Systems, Inc., Idaho Merger Sub Corporation and IXnet,
Inc. (incorporated by reference to Exhibit 2.10 to Registrant's annual
report on Form 10-K for the year ended December 31, 1999).
3.1 Memorandum of Association of the Registrant (incorporated by reference
to Exhibit 3.1 to the Registrant's Registration Statement on Form S-
1/A filed on July 2, 1998 (the "July 2, 1998 S-1/A")).
3.2 Certificate of Incorporation of Change of Name of the Registrant dated
April 30, 1998 (incorporated by reference to Exhibit 3.3 to the
Registrant's Registration Statement on Form S-1/A filed on July 23,
1998 (the "July 23, 1998 S-1/A")).
3.3 Memorandum of Increase of Share Capital of the Registrant dated July
9, 1998 (incorporated by reference to Exhibit 3.4 to the July 23, 1998
S-1/A).
3.4 Memorandum of Increase of Share Capital of the Registrant dated
September 27, 1999 (incorporated by reference to Exhibit 3.1 to the
Registrant's Quarterly Report on Form 10-Q filed on November 15, 1999
(the "November 15, 1999 10-Q")).
3.5 Bye-laws of the Registrant as in effect on October 14, 1999
(incorporated by reference to Exhibit 3.2 to the November 15, 1999 10-
Q).
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
------- -------------------
<C> <S>
3.6 Certificate of Designations of 6 3/8% Cumulative Convertible Preferred
Stock of the Registrant dated November 5, 1999 (incorporated by
reference to Exhibit 3.3 to the November 15, 1999 10-Q).
3.7 Certificate of Designations of 7% Cumulative Convertible Preferred
Stock of the Registrant, dated December 15, 1999 (incorporated by
reference to Exhibit 3.9 to the Global Crossing Holdings Ltd.
Registration Statement on Form S-4 filed on January 11, 2000 (File No.
333-94449)).
3.8 Certificate of Designations of 6 3/8% Cumulative Convertible Preferred
Stock, Series B, of the Registrant, dated January 12, 2000
(incorporated by reference to Registrant's annual report on Form 10-K
for the year ended December 31, 1999).
4.1 Certificate of Designations of 10 1/2% Senior Exchangeable Preferred
Stock Due 2008 of Global Crossing Holdings Ltd. dated December 1, 1998
(incorporated by reference to Schedule A to Exhibit 3.2 to the Global
Crossing Holdings Ltd. Registration Statement on Form S-4 filed on
December 22, 1998.)
4.2 Indenture, dated as of May 18, 1998, between Global Crossing Holdings
Ltd. and United States Trust Company of New York, as Trustee
(incorporated by reference to Exhibit 4.2 to the Global Crossing
Holdings Ltd. Registration Statement on Form S-4 filed on December 22,
1998).
4.3 Supplemental Indenture, dated as of June 25, 1999, between Global
Crossing Holdings Ltd. and United States Trust Company of New York, to
the Indenture dated as of May 18, 1998 (incorporated by reference to
Exhibit 4.4 to the Registrant's Registration Statement on Form S-4
filed on July 12, 1999).
4.4 Credit Agreement, dated as of July 2, 1999, among the Registrant,
Global Crossing Holdings Ltd., the Lenders party thereto and The Chase
Manhattan Bank as Administrative Agent (incorporated by reference to
Exhibit 10.7 to the Registrant's Registration Statement on Form S-4/A
filed on August 5, 1999).
4.5 Indenture, dated as of November 19, 1999, among Global Crossing Ltd.,
Global Crossing Holdings Ltd. and United States Trust Company of New
York (incorporated by reference to Exhibit 4.5 to the Global Crossing
Holdings Ltd. Registration Statement on Form S-4 filed on January 11,
2000 (File No. 333-94449)).
Except as hereinabove provided, there is no instrument with respect to
long-term debt of the Registrant and its consolidated subsidiaries
under which the total authorized amount exceeds 10 percent of the
total consolidated assets of the Registrant. The Registrant agrees to
furnish to the SEC upon its request a copy of any instrument relating
to long-term debt.
4.6 Form of Indenture between the Registrant and United States Trust
Company of New York, as Trustee (filed herewith).
4.7 Form of Certificate of Designations, Powers, Preferences and Rights
for Preferred Stock (filed herewith).
4.8 Form of Common Stock Certificate. (The Form of Common Stock
Certificate included as Exhibit 4.1 to the Registrant's registration
statement on Form S-1 filed on July 23, 1998 is hereby incorporated
herein by reference.)
4.9 Form of Preferred Stock Certificate (filed herewith).
4.10 Form of Debt Warrant Agreement (filed herewith).
4.11 Form of Equity Warrant Agreement (filed herewith).
4.12 Form of Debt Security (filed herewith).
5.1 Opinion of Appleby, Spurling & Kempe (to be filed by amendment).
10.1 Project Development and Construction Contract, dated as of March 18,
1997, among AT&T Submarine Systems, Inc. and Atlantic Crossing Ltd.
(formerly Global Telesystems Ltd.) (incorporated by reference to
Exhibit 10.2 to the July 23, 1998 S-1/A).
10.2 Project Development and Construction Contract, dated as of April 21,
1998, among Tyco Submarine Systems, Ltd. and Pacific Crossing Ltd.
(incorporated by reference to Exhibit 10.3 to the July 23, 1998 S-
1/A).
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
------- -------------------
<C> <S>
10.3 Project Development and Construction Contract, dated as of June 2,
1998, among Alcatel Submarine Networks and Mid-Atlantic Crossing Ltd.
(incorporated by reference to Exhibit 10.4 to the July 23, 1998 S-
1/A).
10.4 Project Development and Construction Contract, dated as of July 21,
1998, among Tyco Submarine Systems, Ltd. and Pan American Crossing
Ltd. (incorporated by reference to Exhibit 10.5 to the Registrant's
Quarterly Report on Form 10-Q filed on November 16, 1998).
10.5 Project Development and Construction Contract, dated as of July 30,
1999, among Alcatel Submarine Networks and South American Crossing
Ltd. (incorporated by reference to Exhibit 10.5 to the Global Crossing
Holdings Ltd. Registration Statement on Form S-4 filed on January 11,
2000 (File No. 333-94449) portions have been omitted pursuant to a
request for confidential treatment).
10.6 Lease made as of October 1, 1999 between North Crescent Realty V, LLC
and Global Crossing Development Company (incorporated by reference to
Exhibit 10.1 to the November 15, 1999 10-Q).
10.7 Form of Stockholders Agreement dated as of August 12, 1998 among the
Registrant and the investors named therein (incorporated by reference
to Exhibit 9.1 to the July 23, 1998 S-1/A).
10.8 Form of Registration Rights Agreement dated as of August 12, 1998
among the Registrant and the investors named therein (incorporated by
reference to Exhibit 4.4 to the July 23, 1998 S-1/A).
10.9 Voting Agreement, dated as of March 16, 1999, among certain
shareholders of the Registrant parties thereto, Frontier Corporation
and, for certain purposes only, the Registrant (incorporated by
reference to Exhibit 10.2 to the March 19, 1999 8-K).
10.10 Second Reaffirmation of Voting Agreement and Share Transfer
Restriction Agreement, dated as of September 2, 1999 (incorporated by
reference to Annex S-B to the joint proxy statement/prospectus
supplement included in the Registrant's Registration Statement on Form
S-4 filed on September 8, 1999 (the "September 8, 1999 S-4").
10.11 Share Transfer Restriction Agreement, dated as of September 2, 1999,
among certain shareholders of Global Crossing Ltd., certain
shareholders of Frontier Corporation and Global Crossing Ltd.
(incorporated by reference to Annex S-C to the joint proxy
statement/prospectus supplement included in the September 8, 1999 S-
4).
10.12 Tender Offer and Purchase Agreement, dated as of May 16, 1999, between
the Registrant and U S WEST, Inc. (incorporated by reference to
Exhibit (c)(2) to U S WEST, Inc.'s Schedule 14D-1 filed on May 21,
1999).
10.13 Standstill Agreement dated as of May 16, 1999 between U S WEST, Inc.
and the Registrant (incorporated by reference to Exhibit (c)(4) to U S
WEST, Inc.'s Schedule 14D-1 filed on May 21, 1999).
10.14 Voting Agreement dated as of May 16, 1999 between U S WEST, Inc. and
the Registrant (incorporated by reference to Exhibit (c)(3) to U S
WEST, Inc.'s Schedule 14D-1 filed on May 21, 1999).
10.15 Tender and Voting Agreement dated as of May 16, 1999 among U S WEST,
Inc., the Registrant and the shareholders party thereto (incorporated
by reference to Exhibit (c)(5) to U S WEST, Inc.'s Schedule 14D-1
filed on May 21, 1999).
10.16 Agreement dated as of May 16, 1999 among the Registrant and the
shareholders party thereto (incorporated by reference to Exhibit
(c)(6) to U S WEST, Inc.'s Schedule 14D-1 filed on May 21, 1999).
10.17 Transfer Agreement dated as of May 16, 1999 among the Registrant and
the shareholders party thereto (incorporated by reference to Exhibit
(c)(8) to U S WEST, Inc.'s Schedule 14D-1 filed on May 21, 1999).
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
------- -------------------
<C> <S>
10.18 Amendment No. 1 dated as of July 18, 1999 to Tender Offer and Purchase
Agreement dated as of May 16 1999 between the Registrant and U S WEST,
Inc. (incorporated by reference to Exhibit 10.2 to the July 20, 1999
8-K).
10.19 Agreement, dated as of July 18, 1999, between Qwest Communications
International Inc. and the Registrant (incorporated by reference to
Exhibit 10.3 to the July 20, 1999 8-K).
10.20 Agreement, dated as of July 18, 1999, between Global Crossing Holdings
Ltd. and Qwest Communications International Inc. (incorporated by
reference to Exhibit 10.4 to the July 20, 1999 8-K).
10.21 Registration Rights Agreement, dated as of November 5, 1999, among the
Registrant and the initial purchasers of the Registrant's 6 3/8%
Cumulative Convertible Preferred Stock named therein (incorporated by
reference to Exhibit 10.21 to the Registrant's Registration Statement
on Form S-3 (File No. 333-94805) filed on January 18, 2000).
10.22 1998 Global Crossing Ltd. Stock Incentive Plan, as amended and
restated effective December 7, 1999 (incorporated by reference to
Exhibit 10.21 to the Global Crossing Holdings Ltd. Registration
Statement on Form S-4 filed on January 11, 2000 (File No. 333-94449)).
10.23 Form of Non-Qualified Stock Option Agreement as in effect on September
30, 1999 (incorporated by reference to Exhibit 10.2 to the November
15, 1999 10-Q).
10.24 Frontier Corporation Supplemental Retirement Savings Plan as amended
and restated effective January 1, 1996 (incorporated by reference to
Exhibit 10.13 to Frontier Corporation's Annual Report on Form 10-K
filed March 28, 1997).
10.25 Amendment No. 1, effective March 16, 1999, to Frontier Corporation
Supplemental Retirement Savings Plan (incorporated by reference to
Exhibit 10.2 to Frontier Corporation's Quarterly Report on Form 10-Q
filed August 3, 1999).
10.26 Amendment No. 2, dated September 21, 1999, to Frontier Corporation
Supplemental Retirement Savings Plan (incorporated by reference to
Exhibit 10.5 to the November 15, 1999 10-Q).
10.27 Employment Agreement dated as of February 19, 1999 between the
Registrant and Robert Annunziata (incorporated by reference to Exhibit
10.8 to the Registrant's Quarterly Report on Form 10-Q filed on May
10, 1999).
10.28 Executive Contract dated January 1, 1998 between Joseph P. Clayton and
Frontier Corporation (incorporated by reference to Exhibit 10.22 to
Frontier Corporation's Annual Report on Form 10-K filed March 26,
1998).
10.29 Amendment dated May 1, 1999 to Executive Contract between Joseph P.
Clayton and Frontier Corporation (incorporated by reference to Exhibit
10.9 to the November 15, 1999 10-Q).
10.30 Sale Agreement, dated October 10, 1999, among Controls and
Communications Limited, The Racal Corporation, Racal Electronics plc
and the Registrant (incorporated by reference to Exhibit 2.1 of the
Registrant's Current Report on Form 8-K filed on October 21, 1999).
10.31 Subscription and Sale and Purchase Agreement, dated November 15, 1999,
among Hutchison Whampoa Limited, Hutchison Telecommunications Limited,
the Registrant and HCL Holdings Limited (incorporated by reference to
Exhibit 10.33 to the Global Crossing Holdings Ltd. Registration
Statement on Form S-4 filed on January 11, 2000 (File No. 333-94449)).
10.32 Registration Rights Agreement, dated as of December 15, 1999, among
the Registrant and the initial purchasers of the Registrant's 7%
Cumulative Convertible Preferred Stock named therein (incorporated by
reference to Exhibit 10.21 to the Registrant's Registration Statement
on Form S-3 (File No. 333-94803) filed on January 18, 2000).
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
------- -------------------
<C> <S>
10.33 Employment Agreement, dated as of December 5, 1999, between the
Registrant and Leo J. Hindery, Jr. (incorporated by reference to
Exhibit 10.32 to the Registrant's annual report on Form 10-K for the
year ended December 31, 1999).
10.34 Form of Change in Control Agreement between the Registrant and
Executive Officers of the Registrant approved by the Board of
Directors in January 2000 (incorporated by reference to Exhibit 10.33
to the Registrant's annual report on Form 10-K for the year ended
December 31, 1999).
10.35 Employment Agreement, dated as of December 3, 1999, between the
Registrant and John A. Scarpati (incorporated by reference to Exhibit
10.36 to Registrant's annual report on Form 10-K for the year ended
December 31, 1999).
12.1 Statement of Computation of Earnings to Fixed Charges (incorporated by
reference to Exhibit 12.1 to Registrant's annual report on Form 10-K
for the year ended December 31, 1999).
21.1 Subsidiaries of the Registrant (incorporated by reference to Exhibit
21.1 to Registrant's annual report on Form 10-K for the year ended
December 31, 1999).
23.1 Consent of Arthur Andersen (filed herewith).
23.2 Consent of PricewaterhouseCoopers LLP (filed herewith).
23.3 Consent of KPMG Audit Plc (filed herewith).
23.4 Consent of Deloitte & Touche (filed herewith).
23.5 Consent of PricewaterhouseCoopers (filed herewith).
23.6 Consent of Appleby, Spurling & Kempe (included in Exhibit 5.1).
24.1 Power of Attorney of the Registrant (previously filed with this
Registration Statement).
</TABLE>
<PAGE>
Exhibit 1.1
Global Crossing Ltd.
[ ] Shares
[COMMON STOCK][PREFERRED STOCK]
UNDERWRITING AGREEMENT
New York, New York
__________________
[Addressees]
Ladies and Gentlemen:
Global Crossing Ltd., a Bermuda company (the "Company"), proposes to
issue and sell [ ] shares of its [Common Stock][Preferred
Stock] (the "Firm Shares") to you (the "Underwriters), in the amounts set forth
in Schedule I hereto. In addition, solely for the purpose of covering over-
----------
allotments, if any, in connection with the sale of the Firm Shares, at the
option of the Underwriters, the Company will sell up to an additional [
] shares (the "Additional Shares") of its [Common Stock][Preferred Stock]. The
Firm Shares and the Additional Shares are collectively referred to herein as the
"Securities". [The Preferred Stock will be issued pursuant to a certificate of
designations (the "Certificate of Designations"), which will be in form and
substance reasonably satisfactory to the Underwriters, and the terms thereof
will be contained in the Company's Bye-Laws (the "Bye-laws"). Under certain
circumstances set forth in the Certificate of Designations and Bye-Laws, the
Preferred Stock may be convertible into Common Stock, par value $0.01 per share
(the "Common Stock"), of the Company.] The Transfer Agent for the Securities
will be EquiServe. 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
<PAGE>
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.
This Agreement, the Securities, the Certificate of Designations and
the Bye-Laws are hereinafter referred to collectively as the "Operative
Documents".
1. Representations and Warranties. The Company hereby 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 [Common Stock][Preferred Stock]", 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 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
2
<PAGE>
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.
(d) [The amendment of the Bye-laws to incorporate the terms of the
Preferred Stock has been duly authorized by all necessary corporate and
shareholder action and, on the Closing Date, the Certificate of Designation
will have been duly executed by the Company, and the Bye-laws will have
been amended to incorporate the terms of the Preferred Stock, which terms
will conform in all material respects to the description thereof in the
Prospectuses;] the Company has duly authorized the Securities and, when
issued and authenticated in accordance with the Bye-laws and delivered to
and paid for by the Underwriters in accordance with the terms hereof, the
Securities will represent a legally valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
subject to the qualification that the enforceability of the Company's
obligations with respect thereto 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.
(e) 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; [the shares of Common
Stock into which the shares of Preferred Stock may be converted will be
duly authorized and, when issued and delivered to the holders of Securities
against payment therefor in accordance with the terms of the Preferred
Stock, validly issued, fully paid and nonassessable and free of any
preemptive rights]; and the capital stock of the Company conforms to the
description thereof in the Prospectuses.
(f) 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 the Operative
Documents (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").
(g) 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
3
<PAGE>
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 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 [ ].
(h) 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.
(i) 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.
(j) None of the issuance, offer or sale of the Securities, the
execution, delivery or performance by the Company of this Agreement or the
other Operative Docuements (including, without limitation, the amendment of
the Bye-Laws to incorporate the terms of the Preferred Stock), compliance
by the Company with the provisions hereof 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
4
<PAGE>
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 which any of them may be
bound or to which any of the property or assets of any of them is subject.
(k) [ ], 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 Securities Act and the applicable
rules and regulations thereunder.
(l) 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 [ ] and 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 Securities 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.
(m) 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.
(n) 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
5
<PAGE>
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
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.
(o) 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.
(p) 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.
(q) 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.
(r) 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.
6
<PAGE>
(s) 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.
(t) 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.
(u) The Company and each of the Subsidiaries own or possess all
patents, trademarks, trademark registration, service marks, service mark
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.
(v) The Company is not an "investment company" within the meaning of
the Investment Company "Act of 1940, as amended (the "Investment Company
Act").
(w) 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. (a) Subject to the terms and conditions and
-----------------
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 dividends from [
], if settlement occurs after that date,] [ ] Firm Shares in
the amount set forth opposite such Underwriter's name on Schedule I hereto.
----------
(b) The Company also agrees, subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, that the
Underwriters shall have the right to purchase from the Company, solely for the
purpose of covering over-allotments in connection
7
<PAGE>
with sales of the Firm Shares, pursuant to an option (the "over-allotment
option") which may be exercised at any time and from time to time prior to 10:00
p.m., New York City time, on the 30th day after the date of the Prospectus (or,
if such 30th day shall be a Saturday or Sunday or a holiday, on the next
business day thereafter when the New York Stock Exchange is open for trading),
up to an aggregate of [ ] Additional Shares. Upon any exercise of the over-
allotment option, each Underwriter, severally and not jointly, agrees to
purchase from the Company the number of Additional Shares that bears the same
proportion to the aggregate number of Additional Shares to be purchased by the
Underwriters as the number of Firm Shares set forth opposite the name of such
Underwriter on Schedule I hereto bears to the aggregate number of Firm Shares.
3. Delivery and Payment. Delivery of and payment for the Firm Shares
--------------------
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 Firm Shares being herein
called the "Closing Date"). Delivery of the Firm Shares 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 Firm Shares
shall be made at such location as the Underwriters shall reasonably designate at
least one business day in advance of the Closing Date and payment for the Firm
Shares shall be made at the office of Latham & Watkins ("Counsel for the
Underwriters"), 885 Third Avenue, New York, New York. Certificates for the Firm
Shares 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 Firm Shares 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.
Delivery of, and payment of the purchase price for any Additional
Shares to be purchased by the Underwriters shall be made at the offices of
Latham & Watkins, 885 Third Avenue, New York, NY 10022, or such other location
as may be mutually acceptable, at such time and on such date (the "Option
Closing Date"), which may be the same as the Closing Date but shall in no event
be earlier than the Closing Date nor later than ten business days after the
giving of the notice hereinafter referred to, as shall be specified in a written
notice from [ ], on behalf of the Underwriters to
purchase a number, specified in such notice, of Additional Shares.
4. Agreements. The Company hereby agrees with each Underwriter 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
8
<PAGE>
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 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
9
<PAGE>
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.
(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.
10
<PAGE>
(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
[Common Stock] listed, subject to notice of issuance, on the Nasdaq
National Market concurrently with the effectiveness of the Registration
Statement.
5. Conditions to the Obligations of the Underwriters. The several
-------------------------------------------------
obligations of the Underwriters to purchase the Firm Shares and the Additional
Shares, 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 Closing Date, except that with respect to
--------------
the Additional Shares, references to the Closing Date shall mean the Option
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 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 Simpson
Thacher & Bartlett, 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.
11
<PAGE>
(ii) Assuming that this Agreement has been duly authorized,
executed and delivered by each party hereto (other than the Company),
this Agreement constitutes a valid and legally binding obligation of
such party, enforceable against such party in accordance with its
terms;
(iii) The statements made in the Prospectuses under the captions
"Description of the [Common Stock][Preferred Stock]" 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;
(iv) The issue and sale of the Securities by the Company and
the compliance by the Company with all of the provisions of the
Operative Documents 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 York statute by any
court or governmental agency or body or court having jurisdiction over
the Company or any of its respective properties;
(v) 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 the
Operative Documents, 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;
(vi) The statements made in the Prospectuses under the caption
"Certain Income Tax Consequences-Taxation of Holders of [Common
Stock][Preferred Stock]-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
(vii) The Company is not an "investment company" within the
meaning of and subject to regulation under the Investment Company Act
of 1940, as amended.
12
<PAGE>
Such counsel shall state that the opinions set forth in paragraphs
(ii) and (iv) 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
(iii) and (vi) 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 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 Appleby, Spurling & Kempe, 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
13
<PAGE>
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 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 the Operative Documents and the
performance by it of the transactions contemplated therein;
(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, the Operative
Documents (including, without limitation, the amendment of the Bye-
Laws to incorporate the terms of the Preferred Stock and the filing of
the Certificate of Designations with the Bermuda Monetary Authority)
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) The Operative Documents constitute legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with its terms;
14
<PAGE>
(vii) 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; the
Common Stock to be converted from the Preferred Stock shall have been
duly authorized and, when issued and delivered to the holders of
Securities against payment therefor in accordance with the terms of
the Preferred Stock, will be 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;
(viii) 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 to ensure the legality, validity, enforceability or
admissibility in evidence of this Agreement in Bermuda;
(ix) 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;
(x) The choice of the laws of the State of New York to govern
this Agreement is a proper, valid and 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;
(xi) 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 and the appointment of the Process Agent contained in this
Agreement 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;
15
<PAGE>
(xii) 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;
(xiii) The statements in the Prospectuses under the captions
"Service of Process and Enforcement of Liabilities," "Certain Income
Tax ConsequencesBBermuda Tax Considerations," and "BTaxation of
Holders of [Common Stock][Preferred Stock]BBermuda 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
(xiv) 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 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 Latham & Watkins, 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.
(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:
16
<PAGE>
(xv) 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.
(xvi) The execution and delivery of, and the consummation of the
transactions contemplated under, this Agreement by the Company do not
and will not materially violate any provision of the Communications
Laws.
(xvii) 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.
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 Latham & Watkins,
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
17
<PAGE>
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 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
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 [ ].
(l) The Company shall have (i) authorized and executed the Certificate
of Designations in form and substance reasonably satisfactory to the
Underwriters and
18
<PAGE>
(ii) authorized the amendment of, and amended, the Bye-laws to incorporate the
terms of the Preferred Stock, in each case in accordance with Bermuda law, and
the Underwriters shall have received original copies thereof, duly executed by
the Company.
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 885 Third Avenue, New
York, New York, on 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 person who controls any Underwriter within the meaning
of either the Securities 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 Securities 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
19
<PAGE>
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 Securities 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 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
20
<PAGE>
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 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
21
<PAGE>
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 Securities 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 Securities 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 Securities 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 Firm Shares to be purchased set forth opposite
their names on Schedule I hereto bears to the number of Firm Shares 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 Firm
Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate principal amount of the Firm Shares
set forth on Schedule I hereto, the remaining Underwriters shall have the right
to purchase all, but shall not be under any obligation to 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
22
<PAGE>
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, 45 Reid Street, Hamilton HM 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.
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
23
<PAGE>
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 and the Securities. To the extent that the Company has or
hereafter may acquire 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 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
24
<PAGE>
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]
25
<PAGE>
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
<PAGE>
SCHEDULE I
Number of Firm
Underwriters Shares to be Purchased
- ------------ -------------------------
<PAGE>
Exhibit 1.2
Global Crossing Ltd.
$[ ]
[CONVERTIBLE] [SENIOR] [SUBORDINATED] DEBT SECURITIES
UNDERWRITING AGREEMENT
New York, New York
- ------------------
[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
<PAGE>
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
------------------------------
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.
2
<PAGE>
(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
3
<PAGE>
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
4
<PAGE>
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
5
<PAGE>
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.
6
<PAGE>
(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 mark
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
-----------------
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.
----------
3. Delivery and Payment. Delivery of and payment for the Securities
---------------------
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
7
<PAGE>
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 Latham & Watkins ("Counsel for the Underwriters"), 885 Third
Avenue, New York, New York. 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
----------
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
<PAGE>
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.
9
<PAGE>
(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
--------------------------------------------------
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
--------------
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
<PAGE>
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 Simpson
Thacher & Bartlett, 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
11
<PAGE>
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
<PAGE>
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 Appleby, Spurling & Kempe, 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;
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<PAGE>
(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
<PAGE>
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
<PAGE>
(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 Latham & Watkins, 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.
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<PAGE>
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 Latham & Watkins,
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
<PAGE>
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 885 Third Avenue, New
York, New York, on 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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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, 45 Reid Street, Hamilton HM 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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
SCHEDULE I
Principal Amount
of Securities
Underwriters to be Purchased
- ------------ -----------------
<PAGE>
Exhibit 4.6
================================================================================
GLOBAL CROSSING LTD.
and
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
---------------
INDENTURE
---------------
Dated as of
---------------------
Providing for the Issuance of
Debt Securities in Series
================================================================================
<PAGE>
CROSS REFERENCE SHEET*
Provisions of Trust Indenture Act (as defined herein) and
Indenture dated as of _________________ between GLOBAL CROSSING LTD. and UNITED
STATES TRUST COMPANY OF NEW YORK, a national banking association, as Trustee:
<TABLE>
<CAPTION>
SECTION OF THE ACT SECTION OF INDENTURE
- ------------------ --------------------
<S> <C>
310(a)(1) and (2)..................................................6.9
310(a)(3) and (4).Inapplicable
310(b).............................................................6.8 and 6.10(a), (b) and (d)
310(c).............................................................Inapplicable
311(a).............................................................6.14
311(b).............................................................6.14
311(c).............................................................Inapplicable
312(a).............................................................4.1 and 4.2
312(b).............................................................4.2
312(c).............................................................4.2
313(a).............................................................4.3
313(b)(1)..........................................................Inapplicable
313(b)(2)..........................................................4.3
313(c) ............................................................4.3, 5.11, 6.10, 6.11, 8.2 and 11.2
313(d).............................................................4.3
314(a).............................................................3.5 and 4.2
314(b).............................................................Inapplicable
314(c)(1) and (2).10.5
314(c)(3)..........................................................Inapplicable
314(d).............................................................Inapplicable
314(e).............................................................10.5
314(f).............................................................Inapplicable
315(a), (c) and (d)................................................6.1
315(b).............................................................5.11
315(e).............................................................5.12
316(a)(1)..........................................................5.9 and 5.10
316(a)(2)..........................................................Not required
316(a) (last sentence).............................................7.4
316(b).............................................................5.7
317(a).............................................................5.2
317(b).............................................................3.4(a) and (b)
318(a).............................................................10.7
</TABLE>
*This Cross Reference Sheet is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS
ARTICLE I DEFINITIONS 1
SECTION 1.1 Certain Terms Defined 1
ARTICLE II SECURITIES 6
Section 2.1 Forms Generally 6
Section 2.2 Form of Trustee's Certificate of Authentication 7
Section 2.3 Amount Unlimited; Issuable in Series 7
Section 2.4 Authentication and Delivery of Securities 10
Section 2.5 Execution of Securities 13
Section 2.6 Certificate of Authentication 13
Section 2.7 Denomination and Date of Securities; Payment of Interest 13
Section 2.8 Registration, Transfer and Exchange 14
Section 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities 17
Section 2.10 Cancellation of Securities; Destruction Thereof 18
Section 2.11 Temporary Securities 19
ARTICLE III COVENANTS OF THE ISSUER 19
Section 3.1 Payment of Principal and Interest 19
Section 3.2 Offices for Payments, etc. 20
Section 3.3 Appointment to Fill a Vacancy in Office of Trustee 21
Section 3.4 Paying Agents 21
Section 3.5 Compliance Certificates 22
Section 3.6 Corporate Existence 22
Section 3.7 Maintenance of Properties 22
Section 3.8 Payment of Taxes and Other Claims 22
ARTICLE IV SECURITYHOLDER LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE 23
Section 4.1 Issuer to Furnish Trustee Information as to
Names and Addresses of Securityholders 23
Section 4.2 Reports by the Issuer 23
Section 4.3 Reports by the Trustee 23
i
<PAGE>
<TABLE>
<CAPTION>
ARTICLE V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT 25
<S> <C>
Section 5.1 Event of Default Defined, Acceleration of Maturity; Waiver of
Default 25
Section 5.2 Collection of Indebtedness by Trustee; Trustee May Prove
Debt 29
Section 5.3 Application of Proceeds 31
Section 5.4 Suits for Enforcement 32
Section 5.5 Restoration of Rights on Abandonment of Proceedings 32
Section 5.6 Limitations on Suits by Securityholders 32
Section 5.7 Unconditional Right of Securityholders to Institute Certain
Suits 33
Section 5.8 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default 33
Section 5.9 Control by Holders of Securities 33
Section 5.10 Waiver of Past Defaults 34
Section 5.11 Trustee to Give Notice of Default, but May Withhold in Certain
Circumstances 34
Section 5.12 Right of Court to Require Filing of Undertaking to Pay Costs 34
</TABLE>
<TABLE>
<CAPTION>
ARTICLE VI CONCERNING THE TRUSTEE 35
<S> <C>
Section 6.1 Duties and Responsibilities of the Trustee;
During Default; Prior to Default 35
Section 6.2 Certain Rights of the Trustee 36
Section 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or
Application of Proceeds Thereof 37
Section 6.4 Trustee and Agents May Hold Securities or Coupons;
Collections, etc. 37
Section 6.5 Moneys Held by Trustee 37
Section 6.6 Compensation and Indemnification of Trustee and its
Prior Claim 38
Section 6.7 Right of Trustee to Rely on Officer's Certificate, etc. 38
Section 6.8 Indentures Not Creating Potential Conflicting Interests for the
Trustee 38
Section 6.9 Qualification of Trustee; Conflicting Interests 38
Section 6.10 Persons Eligible for Appointment as Trustee 39
Section 6.11 Resignation and Removal; Appointment of Successor Trustee 39
Section 6.12 Acceptance of Appointment by Successor Trustee 40
Section 6.13 Merger, Conversion, Consolidation or Succession to Business of
Trustee 41
Section 6.14 Preferential Collection of Claims Against the Issuer 42
</TABLE>
ii
<PAGE>
Section 6.15 Appointment of Authenticating Agent 42
ARTICLE VII CONCERNING THE SECURITYHOLDERS 43
Section 7.1 Evidence of Action Taken by Securityholders 43
Section 7.2 Proof of Execution of Instruments and of Holding of
Securities 43
Section 7.3 Holders to Be Treated as Owners 43
Section 7.4 Securities Owned by Issuer Deemed Not Outstanding 44
Section 7.5 Right of Revocation of Action Taken 44
ARTICLE VIII SUPPLEMENTAL INDENTURES 45
Section 8.1 Supplemental Indentures Without Consent of Securityholders
45
Section 8.2 Supplemental Indentures with Consent of Securityholders 46
Section 8.3 Effect of Supplemental Indenture 48
Section 8.4 Documents to Be Given to Trustee 48
Section 8.5 Notation on Securities in Respect of Supplemental
Indentures 48
ARTICLE IX SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS 49
Section 9.1 Satisfaction and Discharge of Indenture 49
Section 9.2 Application by Trustee of Funds Deposited for Payment of
Securities 53
Section 9.3 Repayment of Moneys Held by Paying Agent 53
Section 9.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years 53
Section 9.5 Indemnity for U.S. Government of Obligations 54
ARTICLE X MISCELLANEOUS PROVISIONS 54
Section 10.1 Incorporators, Shareholders, Officers and Directors of
Issuer Exempt from Individual Liability 54
Section 10.2 Provisions of Indenture for the Sole Benefit of Parties and
Holders of Securities and Coupons 54
Section 10.3 Successors and Assigns of Issuer Bound by Indenture 54
Section 10.4 Notices and Demands on Issuer, Trustee and Holders of
Securities and Coupons 54
Section 10.5 Officer's Certificates and Opinions of Counsel; Statements
to Be Contained Therein 55
Section 10.6 Payments Due on Saturdays, Sundays and Holidays 56
Section 10.7 Conflict of Any Provision of Indenture with
Trust Indenture Act 56
iii
<PAGE>
Section 10.8 New York Law to Govern 57
Section 10.9 Counterparts 57
Section 10.10 Effect of Headings 57
Section 10.11 Securities in a Composite Currency, Currency Unit or
Foreign Currency 57
Section 10.12 Judgment Currency 58
ARTICLE XI REDEMPTION OF SECURITIES AND SINKING FUNDS 58
Section 11.1 Applicability of Article 58
Section 11.2 Notice of Redemption; Partial Redemptions 58
Section 11.3 Payment of Securities Called for Redemption 60
Section 11.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption 61
Section 11.5 Mandatory and Optional Sinking Funds 61
iv
<PAGE>
INDENTURE, dated as of _____________, by and between GLOBAL CROSSING
LTD., a corporation organized and existing under the laws of Bermuda (the
"Issuer"), and UNITED STATES TRUST COMPANY OF NEW YORK, as trustee (the
"Trustee").
W I T N E S E T H:
WHEREAS, the Issuer has duly authorized the issue from time to time of
its unsecured debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "Securities") up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture to provide, among other things, for the authentication, delivery
and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the holders thereof, the Issuer and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective holders from time to
time of the Securities and of the coupons, if any, appertaining thereto as
follows:
ARTICLE I DEFINITIONS
SECTION I.1 Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), or the definitions of which in the
Securities Act of 1933, as amended (the "Securities Act"), are referred to in
the Trust Indenture Act, including terms defined therein by reference to the
Securities Act (except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meaning assigned to such terms in
the Trust Indenture Act and in the Securities Act as in effect from time to
time. All accounting terms used herein and not expressly defined shall have the
meanings assigned to such terms in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" means such
accounting principles as are generally accepted in the United States at the time
of any computation unless a different time shall be specified with respect to
such series of Securities as provided for in Section 2.3. The words "herein,"
"hereof" and "hereunder" and other words of similar import refer to this
Indenture as a
<PAGE>
2
whole and not to any particular Article, Section or other subdivision. The terms
defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act or any successor provision.
"Authenticating Agent" shall have the meaning set forth in Section
6.15.
"Authorized Newspaper" means a newspaper, which, in the case of The
City of New York, will, if practicable, be THE WALL STREET JOURNAL (Eastern
Edition) and, in the case of the United Kingdom of Great Britain and Northern
Ireland (the "United Kingdom"), will, if practicable, be THE FINANCIAL TIMES
(London Edition) published in an official or common language of the country of
publication customarily published at least once a day for at least five days in
each calendar week and of general circulation in The City of New York or the
United Kingdom, as applicable. If it shall be impractical in the opinion of the
Trustee to make any publication of any notice required hereby in an Authorized
Newspaper, any publication or other notice in lieu thereof which is made or
given with the approval of the Trustee shall constitute a sufficient publication
of such notice.
"Board of Directors" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions, certified
by the secretary or an assistant secretary of the Issuer to have been duly
adopted or consented to by the Board of Directors and to be in full force and
effect, and delivered to the Trustee.
"Business Day" means, with respect to any Security, a day that is not
a day on which banking institutions in the city (or in any of the cities, if
more than one) in which amounts are payable, as specified in the form of such
Security, are authorized or required by any applicable law or regulation to be
closed.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at any time
after the execution and delivery of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, as of the date of this Indenture,
located at 114 West 47th Street, 25th Floor, New York, New York 10036.
"Coupon" means any interest coupon appertaining to an Unregistered
Security.
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3
"Covenant Defeasance" shall have the meaning set forth in Section
9.1(c).
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global Securities, the
Person designated as Depositary by the Issuer pursuant to Section 2.3 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Registered Global
Securities of that series.
"Dollar" or "$" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Value" when used with respect to any Voting Stock means the fair
value as determined in good faith by the Board of Directors of the Issuer.
"Foreign Currency" means a currency issued by the government of a
country other than the United States of America.
"Holder," "Holder of Securities," "Securityholder" or any other
similar term means (a) in the case of any Registered Security, the person in
whose name such Security is registered in the security register kept by the
Issuer for that purpose in accordance with the terms hereof, and (b) in the case
of any Unregistered Security, the bearer of such Security, or any Coupon
appertaining thereto, as the case may be.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented
or both, and shall include the forms and terms of particular series of
Securities established as contemplated hereunder.
"IRS" means the Internal Revenue Service of the United States
Department of the Treasury, or any successor entity.
"Issuer" means Global Crossing Ltd., a corporation organized and
existing under the laws of Bermuda, and its successors and assigns.
"Issuer Order" means a written statement, request or order of the
Issuer signed in its name by the chairman of the Board of Directors, the
president, any vice president or the treasurer of the Issuer.
<PAGE>
4
"Judgment Currency" has the meaning set forth in Section
10.12.
"Non-U.S. Person" means any person that is not a "U.S. person" as such
term is defined in Rule 902 of the Securities Act.
"Officer's Certificate" means a certificate signed by the
chairman of the Board of Directors, the president or any vice president or the
treasurer of the Issuer and delivered to the Trustee. Each such certificate
shall comply with Section 314 of the Trust Indenture Act and include the
statements provided for in Section 10.5.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel who may be an employee of the Issuer or other counsel satisfactory to
the Trustee. Each such opinion shall comply with Section 314 of the Trust
Indenture Act and include the statements provided for in Section 10.5.
"Original Issue Date" of any Security (or portion thereof)
means the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 5.1.
"Outstanding" (except as otherwise provided in Section 7.4),
when used with reference to Securities, means, subject to the provisions of
Section 7.4, as of any particular time, all Securities authenticated and
delivered by the Trustee under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(2) Securities, or portions thereof, for the payment or redemption of
which moneys or U.S. Government Obligations (as provided for in Section 9.1) in
the necessary amount shall have been deposited in trust with the Trustee or with
any paying agent (other than the Issuer) or shall have been set aside,
segregated and held in trust by the Issuer for the Holders of such Securities
(if the Issuer shall act as its own paying agent), provided, that if such
Securities, or portions thereof, are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as herein provided, or
provisions satisfactory to the Trustee shall have been made for giving such
notice; and
(3) Securities which shall have been paid or in substitution for which
other Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.9 (except with respect to any such Security as to which proof
satisfactory to the Trustee is presented that such Security is held by a person
in whose hands such Security is a legal, valid and binding obligation of the
Issuer).
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5
In determining whether the Holders of the requisite principal amount
of Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 5.1.
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Issuer or its agents upon the issuance of
such Securities.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any," provided, however, that such inclusion of premium, if any, shall under no
circumstances result in the double counting of such premium for the purpose of
any calculation required hereunder.
"record date" shall have the meaning set forth in Section 2.7.
"Registered Global Security" means a Security evidencing all or a part
of a series of Registered Securities, issued to the Depositary for such series
in accordance with Section 2.4, and bearing the legend prescribed in Section 2.4
and any other legend required by the Depositary for such series.
"Registered Security" means any Security registered on the Security
register of the Issuer.
"Required Currency" shall have the meaning set forth in Section 10.12.
"Responsible Officer" when used with respect to the Trustee means any
officer of the Trustee assigned to administer corporate trust matters to whom
any corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, as amended.
"Security" or "Securities" (except as otherwise provided in Section
7.4) has the meaning stated in the first recital of this Indenture, or, as the
case may be, Securities that have been authenticated and delivered under this
Indenture.
<PAGE>
6
"Senior Securities" means Securities other than Subordinated
Securities.
"Subordinated Securities" means Securities that by the terms
established pursuant to Subsection 2.3(9) are subordinate to any specified debt
of the Issuer.
"Subsidiary" means any corporation of which at least a majority of the
outstanding stock having the voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether or not at the time stock
of any other class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at the time of
determination directly or indirectly owned by the Issuer, or by one or more of
its Subsidiaries, or by the Issuer and one or more of its Subsidiaries.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article VI, shall also
include any successor trustee. "Trustee" shall also mean or include each Person
who is then a trustee hereunder, and, if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series shall
mean the trustee with respect to the Securities of such series.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" shall have the meaning set forth in
Section 9.1(a).
"Voting Stock" means stock of any class or classes having general
voting power under ordinary circumstances to elect a majority of the board of
directors, managers or trustees of the corporation in question, provided, that,
for the purposes hereof, stock which carries only the right to vote
conditionally on the happening of an event shall not be considered voting stock
whether or not such event shall have happened.
"Yield to Maturity" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE II
SECURITIES
Section II.1 Forms Generally. The Securities of each series and the
Coupons, if any, to be attached thereto shall be substantially in such form (not
inconsistent with this Indenture) as shall be established by or pursuant to one
or more Board Resolutions (as set forth in a Board Resolution or, to the extent
established pursuant to but not set forth in a Board Resolution, an Officer's
Certificate detailing such establishment) or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and
<PAGE>
7
other variations as are required or permitted by this Indenture and may have
imprinted or otherwise reproduced thereon such legend or legends or
endorsements, not inconsistent with the provisions of this Indenture, as may be
required to comply with any law or with any rules or regulations pursuant
thereto, or with any rules of any securities exchange or to conform to general
usage, all as may be determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and Coupons.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and Coupons,
if any.
Section II.2 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities referred to in the within-mentioned
Indenture.
United States Trust Company of New York, as Trustee
By:_____________________________________
Authorized Signatory"
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Trustee's Certificate of
Authentication to be borne by the Securities of each such series shall be
substantially as follows:
"This is one of the Securities referred to in the within-mentioned
Indenture.
[______________________________________],
as Authenticating Agent
By:_____________________________________
Authorized Signatory"
Section II.3 Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to one or more Board Resolutions (and to the extent
established pursuant to but not set forth in a Board Resolution, in an Officer's
Certificate detailing such establishment) or
<PAGE>
8
established in one or more indentures supplemental hereto, prior to the initial
issuance of Securities of any series,
(1) the designation of the Securities of the series, which
shall distinguish the Securities of the series from the Securities of all other
series, and which may be part of a series of Securities previously issued;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 11.3);
(3) if other than Dollars, the coin, currency or currencies in
which the Securities of the series are denominated (including, but not limited
to, any composite currency, currency units or Foreign Currency);
(4) the date or dates on which the principal of the
Securities of the series is payable or the method of determination thereof;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest shall
accrue, on which such interest shall be payable, the terms and conditions of any
deferral of interest and the additional interest, if any, thereon, the right, if
any, of the Issuer to extend the interest payment periods and the duration of
the extensions and (in the case of Registered Securities) the date or dates on
which a record shall be taken for the determination of Holders to whom interest
is payable and/or the method by which such rate or rates or date or dates shall
be determined;
(6) the place or places where and the manner in which, the
principal of and any interest on Securities of the series shall be payable, if
other than as provided in Section 3.2;
(7) the right, if any, of the Issuer to redeem Securities, in
whole or in part, at its option and the period or periods within which, or the
date or dates on which, the price or prices at which and any terms and
conditions upon which Securities of the series may be so redeemed, pursuant to
any sinking fund or otherwise;
(8) the obligation, if any, of the Issuer to redeem, purchase
or repay Securities of the series pursuant to any mandatory redemption, sinking
fund or analogous provisions or at the option of a Holder thereof, and the price
or prices at which and the period or periods within which or the date or dates
on which and any terms and conditions upon which Securities of the series shall
be redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
<PAGE>
9
(9) the terms, if any, on which the Securities of such series
will be subordinate to other debt of the Issuer;
(10) if other than denominations of $1,000, and any integral
multiple thereof in the case of Registered Securities, or $1,000 and $5,000 in
the case of Unregistered Securities, the denominations in which Securities of
the series shall be issuable;
(11) the percentage of the principal amount at which the
Securities will be issued, and, if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof;
(12) if other than the coin, currency or currencies in which
the Securities of the series are denominated, the coin, currency or currencies
in which payment of the principal of or interest on the Securities of such
series shall be payable, including composite currencies or currency units;
(13) if the principal of or interest on the Securities of the
series are to be payable, at the election of the Issuer or a Holder thereof, in
a coin or currency other than that in which the Securities are denominated, the
period or periods within which, and the terms and conditions upon which, such
election may be made;
(14) if the amount of payments of principal of and interest on
the Securities of the series may be determined with reference to an index or
formula based on a coin, currency, composite currency or currency unit other
than that in which the Securities of the series are denominated, the manner in
which such amounts shall be determined;
(15) whether the Securities of the series will be issuable as
Registered Securities (and if so, whether such Securities will be issuable as
Registered Global Securities) or Unregistered Securities (with or without
Coupons), or any combination of the foregoing, any restrictions applicable to
the offer, sale or delivery of Unregistered Securities or the payment of
interest thereon and, if other than as provided in Section 2.8, the terms upon
which Unregistered Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
(16) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series held by a person who is not a
U.S. person in respect of any tax, assessment or governmental charge withheld or
deducted and, if so, whether the Issuer will have the option to redeem the
Securities of the series rather than pay such additional amounts;
(17) if the Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon
<PAGE>
10
receipt of certain certificates or other documents or satisfaction of other
conditions, the form and terms of such certificates, documents or conditions;
(18) any trustees, depositaries, authenticating or paying
agents, transfer agents or registrars of any other agents with respect to the
Securities of such series;
(19) any deletion from modification of or addition to the
Events of Default or covenants with respect to the Securities of such series;
(20) if the Securities of the series are to be convertible
into or exchangeable for any other security or property of the Issuer or its
subsidiaries, including, without limitation, securities of another Person held
by the Issuer or its Affiliates and, if so, the terms thereof; and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons, if any,
appertaining thereto shall be substantially identical, except in the case of
Registered Securities as to denomination and except as may otherwise be provided
by or pursuant to the Board Resolution or Officer's Certificate referred to
above or as set forth in any indenture supplemental hereto. All Securities of
any one series need not be issued at the same time and may be issued from time
to time, consistent with the terms of this Indenture, if so provided by or
pursuant to such Board Resolution, such Officer's Certificate or in any
indenture supplemental hereto.
Section II.4 Authentication and Delivery of Securities. The
Issuer may deliver Securities of any series having attached thereto appropriate
Coupons, if any, executed by the Issuer to the Trustee for authentication
together with the applicable documents referred to below in this Section 2.4,
and the Trustee shall thereupon authenticate and deliver such Securities and
Coupons, if any, to or upon the order of the Issuer (contained in the Issuer
Order referred to below in this Section) or pursuant to such procedures
acceptable to the Trustee and to such recipients as may be specified from time
to time by an Issuer Order. The maturity date, original issue date, interest
rate and any other terms of the Securities of such series and Coupons, if any,
appertaining thereto shall be determined by or pursuant to such Issuer Order and
procedures. If provided for in such procedures, such Issuer Order may authorize
authentication and delivery pursuant to oral or electronic instructions from the
Issuer or its duly authorized agent or agents, which instructions, if oral,
shall be promptly confirmed in writing. In authenticating such Securities and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive (in the case of
subparagraphs (b), (c) and (d) below only at or before the time of the first
request of the Issuer to the Trustee to authenticate Securities of such series)
and (subject to Section 6.1) shall be fully protected in relying upon, the
following enumerated documents unless and until such documents have been
superseded or revoked:
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11
(a) an Issuer Order requesting such authentication and setting forth
delivery instructions if the Securities and Coupons, if any, are not to be
delivered to the Issuer, provided that, with respect to Securities of a series
subject to a Periodic Offering,
(i) such Issuer Order may be delivered by the Issuer to the
Trustee prior to the delivery to the Trustee of such Securities for
authentication and delivery,
(ii) the Trustee shall authenticate and deliver Securities of such
series for original issue from time to time, in an aggregate principal
amount not exceeding the aggregate principal amount established for such
series, pursuant to an Issuer Order or pursuant to procedures acceptable to
the Trustee as may be specified from time to time by an Issuer Order,
(iii) the maturity date or dates, original issue date or dates,
interest rate or rates and any other terms of Securities of such series
shall be determined by an Issuer Order or pursuant to such procedures and
(iv) if provided for in such procedures, such Issuer Order may
authorize authentication and delivery pursuant to oral or electronic
instructions from the Issuer or its duly authorized agent or agents, which
instructions, if oral, shall be promptly confirmed in writing;
(b) any Board Resolution, Officer's Certificate and/or executed
supplemental indenture referred to in Section 2.1 and 2.3 by or pursuant to
which the forms and terms of the Securities and Coupons, if any, were
established;
(c) an Officer's Certificate setting forth the form or forms and terms
of the Securities and Coupons, if any, stating that the form or forms and terms
of the Securities and Coupons, if any, have been established pursuant to
Sections 2.1 and 2.3 and comply with this Indenture, and covering such other
matters as the Trustee may reasonably request; and
(d) at the option of the Issuer, either one or more Opinions of Counsel,
or a letter addressed to the Trustee permitting it to rely on one or more
Opinions of Counsel, substantially to the effect that:
(i) the form or forms of the Securities and Coupons, if any,
have been duly authorized and established in conformity with the provisions of
this Indenture;
(ii) in the case of an underwritten offering, the terms of the
Securities have been duly authorized and established in conformity with the
provisions of this Indenture, and, in the case of an offering that is not
<PAGE>
12
underwritten, certain terms of the Securities have been established
pursuant to a Board Resolution, an Officer's Certificate or a
supplemental indenture in accordance with this Indenture, and when such
other terms as are to be established pursuant to procedures set forth in
an Issuer Order shall have been established, all such terms will have
been duly authorized by the Issuer and will have been established in
conformity with the provisions of this Indenture; and
(iii) such Securities and Coupons, if any, when executed by the
Issuer and authenticated by the Trustee in accordance with the
provisions of this Indenture and delivered to and duly paid for by the
purchasers thereof, and subject to any conditions specified in such
Opinion of Counsel, will have been duly issued under this Indenture,
will be entitled to the benefits of this Indenture, and will be valid
and binding obligations of the Issuer, enforceable in accordance with
their respective terms except as the enforceability thereof may be
limited by (x) bankruptcy, insolvency, reorganization, liquidation,
moratorium, fraudulent transfer or similar laws affecting creditors'
rights generally, (y) rights of acceleration, if any, and (z) the
availability of equitable remedies may be limited by equitable
principles of general applicability and such counsel need express no
opinion with regard to the enforceability of Section 6.6 or of a
judgment denominated in a currency other than Dollars.
In rendering such opinions, any counsel may qualify any opinions as to
enforceability by stating that such enforceability may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium, fraudulent transfer and
other similar laws affecting the rights and remedies of creditors and is subject
to general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Such counsel may rely upon
opinions of other counsel (copies of which shall be delivered to the Trustee)
reasonably satisfactory to the Trustee, in which case the opinion shall state
that such counsel believes he and the Trustee are entitled so to rely. Such
counsel may also state that, insofar as such opinion involves factual matters,
he has relied, to the extent he deems proper, upon certificates of officers of
the Issuer and its subsidiaries and certificates of public officials.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Issuer or if the
Trustee in good faith by its board of directors or board of trustees, executive
committee or a trust committee of directors or Responsible Officers shall
determine that such action would expose the Trustee to personal liability to
existing Holders or would affect the Trustee's own rights, duties or immunities
under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Registered
Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with this Section and the Issuer Order with respect to such series,
authenticate and deliver one or more Registered Global Securities that (i) shall
<PAGE>
13
represent and shall be denominated in an amount equal to the aggregate principal
amount of all of the Securities of such series issued and not yet cancelled,
(ii) shall be registered in the name of the Depositary for such Registered
Global Security or Securities or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or delivered or held pursuant to
such Depositary's instructions and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for
Securities in definitive registered form, this Security may not be transferred
except as a whole by the Depositary to the nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary or a nominee
of such successor Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the time
of its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Exchange Act and any other applicable statute or
regulation.
Section II.5 Execution of Securities. The Securities and each Coupon
appertaining thereto, if any, shall be signed on behalf of the Issuer by the
chairman or vice chairman of its Board of Directors or its president, or any
executive (senior or other), a vice president or its treasurer, under its
corporate seal (except in the case of Coupons) which may, but need not, be
attested. Such signatures may be the manual or facsimile signatures of the
present or any future such officers. The seal of the Issuer may be in the form
of a facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor errors or defects in
any such reproduction of the seal or any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Trustee or disposed of
by the Issuer, such Security or Coupon nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Security or Coupon
had not ceased to be such officer of the Issuer; and any Security or Coupon may
be signed on behalf of the Issuer by such persons as, at the actual date of the
execution of such Security or Coupon, shall be the proper officers of the
Issuer, although at the date of the execution and delivery of this Indenture any
such person was not such an officer.
Section II.6 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized officers, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. No Coupon shall be entitled to the
benefits of this Indenture or shall be valid and obligatory for any purpose
until the certificate of authentication on the Security to which such Coupon
appertains shall have been duly executed by the Trustee. The execution of such
certificate by the Trustee upon any Security executed by the Issuer shall be
conclusive evidence that the Security so authenticated has been
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14
duly authenticated and delivered hereunder and that the Holder is entitled to
the benefits of this Indenture.
Section II.7 Denomination and Date of Securities; Payment of
Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, with respect to the Registered Securities of any
series, if not so established, in denominations of $1,000 and any integral
multiple thereof. If denominations of Unregistered Securities of any series are
not so established, such Securities shall be issuable in denominations of $1,000
and $5,000. The Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the
officers of the Issuer executing the same may determine with the approval of the
Trustee, as evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as provided in the
Board Resolution referred to in Section 2.3. The Securities of each series shall
bear interest, if any, from the date, and such interest shall be payable on the
dates, established as contemplated by Section 2.3.
The person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Issuer shall default in the payment of the
interest due on such interest payment date for such series, in which case such
defaulted interest shall be paid to the persons in whose names Outstanding
Registered Securities for such series are registered at the close of business on
a subsequent record date (which shall be not less than five Business Days prior
to the date of payment of such defaulted interest) established by notice given
by mail by or on behalf of the Issuer to the Holders of Registered Securities
not less than 15 days preceding such subsequent record date. The term "record
date" as used with respect to any interest payment date (except a date for
payment of defaulted interest) for the Securities of any series shall mean the
date specified as such in the terms of the Registered Securities of such series
established as contemplated by Section 2.3, or, if no such date is so
established, if such interest payment date is the first day of a calendar month,
the fifteenth day of the preceding calendar month or, if such interest payment
date is the fifteenth day of a calendar month, the first day of such calendar
month, whether or not such record date is a Business Day.
Section II.8 Registration, Transfer and Exchange. (a) The Issuer
will keep at each office or agency to be maintained for the purpose as provided
in Section 3.2 for each series of Securities a register or registers in which,
subject to such reasonable regulations as the Issuer may prescribe, it will
provide for the registration of Registered Securities of such series and the
registration of transfer of Registered Securities of such series. Such register
shall be in written form in the English language or in any other form capable of
being converted into such form within a reasonable time. At all reasonable times
such register or registers shall be open for inspection by the Trustee.
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15
Upon due presentation for registration of transfer of any
Registered Security of any series at any such office or agency to be maintained
for the purpose as provided in Section 3.2, the Issuer shall execute and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of the same
series, maturity date, interest rate and original issue date in authorized
denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary global
Unregistered Securities) and Coupons (except for Coupons attached to any
temporary global Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of any
series (other than a Registered Global Security, except as set forth below) may
be exchanged for a Registered Security or Registered Securities of such series
having authorized denominations and an equal aggregate principal amount, upon
surrender of such Registered Securities to be exchanged at the agency of the
Issuer that shall be maintained for such purpose in accordance with Section 3.2
and upon payment, if the Issuer shall so require, of the charges hereinafter
provided. If the Securities of any series are issued in both registered and
unregistered form, at the option of the Holder thereof, except as otherwise
specified pursuant to Section 2.3, Unregistered Securities of any series may be
exchanged for Registered Securities of such series having authorized
denominations and an equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Issuer that shall
be maintained for such purpose in accordance with Section 3.2, with, in the case
of Unregistered Securities that have Coupons attached, all unmatured Coupons and
all matured Coupons in default thereto appertaining, and upon payment, if the
Issuer shall so require, of the charges hereinafter provided. At the option of
the Holder thereof, if Unregistered Securities of any series, maturity date,
interest rate and original issue date are issued in more than one authorized
denomination, except as otherwise specified pursuant to Section 2.3, such
Unregistered Securities may be exchanged for Unregistered Securities of such
series having authorized denominations and an equal aggregate principal amount,
upon surrender of such Unregistered Securities to be exchanged at the agency of
the Issuer that shall be maintained for such purpose in accordance with Section
3.2 or as specified pursuant to Section 2.3, with, in the case of Unregistered
Securities that have Coupons attached, all unmatured Coupons and all matured
Coupons in default thereto appertaining, and upon payment, if the Issuer shall
so require, of the charges hereinafter provided. Registered Securities of any
series may not be exchanged for Unregistered Securities of such series unless
(1) otherwise specified pursuant to Section 2.3 and (2) the Issuer has delivered
to the Trustee an Opinion of Counsel that (x) the Issuer has received from the
IRS a ruling or (y) since the date hereof, there has been a change in the
applicable United States federal income tax law, in either case to the effect
that the inclusion of terms permitting Registered Securities to be exchanged for
Unregistered Securities would result in no United States federal income tax
effect adverse to the Issuer or to any Holder. Whenever any Securities are so
surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive. All Securities and Coupons, if any, surrendered upon
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16
any exchange or transfer provided for in this Indenture shall be promptly
cancelled and (subject to the record retention requirements of the Exchange Act)
disposed of by the Trustee, and the Trustee shall deliver a certificate of
disposition thereof to the Issuer.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Issuer or the
Trustee) be duly endorsed, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed, by the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any exchange
or registration of transfer of Securities. No service charge shall be made for
any such transaction.
The Issuer shall not be required to exchange or register a transfer
of (a) any Securities of any series for a period of 15 days preceding the first
mailing of notice of redemption of Securities of such series to be redeemed or
(b) any Securities selected, called or being called for redemption, in whole or
in part, except, in the case of any Security to be redeemed in part, the portion
thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.8, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of a
series represented by one or more Registered Global Securities notifies the
Issuer that it is unwilling or unable to continue as Depositary for such
Registered Securities or if at any time the Depositary for such Registered
Securities shall no longer be eligible under Section 2.4, the Issuer shall
appoint a successor Depositary eligible under Section 2.4 with respect to such
Registered Securities. If a successor Depositary eligible under Section 2.4 for
such Registered Securities is not appointed by the Issuer within 90 days after
the Issuer receives such notice or becomes aware of such ineligibility, the
Issuer's election pursuant to Section 2.3 that such Registered Securities be
represented by one or more Registered Global Securities shall no longer be
effective and the Issuer will execute, and the Trustee, upon receipt of an
Officer's Certificate for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such
series in definitive registered form without coupons, in any authorized
denominations, in an aggregate principal amount equal to the principal amount of
the Registered Global Security or Securities representing such Registered
Securities in exchange for such Registered Global Security or Securities.
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17
The Issuer may at any time and in its sole discretion determine that
the Registered Securities of any series issued in the form of one or more
Registered Global Securities shall no longer be represented by a Registered
Global Security or Securities. In such event the Issuer will execute, and the
Trustee, upon receipt of any Officer's Certificate for the authentication and
delivery of definitive Securities of such series, will authenticate and deliver,
Securities of such series in definitive registered form without coupons, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities representing
such Registered Securities, in exchange for such Registered Global Security or
Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Registered Global Security, the Depositary for such
Registered Global Security may surrender such Registered Global Security in
exchange in whole or in part for Securities of the same series in definitive
registered form on such terms as are acceptable to the Issuer and such
Depositary. Thereupon, the Issuer shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new Registered
Security or Securities of the same series, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the aggregate
principal amount of Registered Securities authenticated and delivered
pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for Securities in
definitive registered form without coupons, in authorized denominations, such
Registered Global Security shall be cancelled by the Trustee or an agent of the
Issuer or the Trustee. Securities in definitive registered form without coupons
issued in exchange for a Registered Global Security pursuant to this Section 2.8
shall be registered in such names and in such authorized denominations as the
Depositary for such Registered Global Security, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct the Trustee or
an agent of the Issuer or the Trustee. The Trustee or such agent shall deliver
such Securities to or as directed by the Persons in whose names such Securities
are so registered.
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Issuer, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Securities surrendered upon
such transfer or exchange.
Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, none of the Issuer, the Trustee or any agent of the
Issuer or the Trustee (any of which, other than the Issuer, shall rely on an
Officer's Certificate and an Opinion of Counsel) shall be
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18
required to exchange any Unregistered Security for a Registered Security if such
exchange would result in United States federal income tax consequences adverse
to the Issuer (such as, for example, the inability of the Issuer to deduct from
its income, as computed for United States federal income tax purposes, the
interest payable on the Unregistered Securities) under then applicable United
States federal income tax laws.
Section II.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security or any Coupon
appertaining to any Security shall be mutilated, defaced, destroyed, lost or
stolen, the Issuer in its discretion may execute and, upon the written request
of any officer of the Issuer, the Trustee shall authenticate and deliver, a new
Security of the same series, maturity date, interest rate and original issue
date, bearing a number or other distinguishing symbol not contemporaneously
outstanding, in exchange and substitution for the mutilated or defaced Security,
or in lieu of and in substitution for the Security so destroyed, lost or stolen
with Coupons corresponding to the Coupons appertaining to the Securities so
mutilated, defaced, destroyed, lost or stolen, or in exchange or substitution
for the Security to which such mutilated, defaced, destroyed, lost or stolen
Coupon appertained, with Coupons appertaining thereto corresponding to the
Coupons so mutilated, defaced, destroyed, lost or stolen. In every case, the
applicant for a substitute Security or Coupon shall furnish to the Issuer and to
the Trustee and any agent of the Issuer or the Trustee such security or
indemnity as may be required by them to indemnify and defend and to save each of
them harmless and, in every case of destruction, loss or theft, evidence to
their satisfaction of the destruction, loss or theft of such Security or Coupon
and of the ownership thereof, and in the case of mutilation or defacement shall
surrender the Security and related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the Issuer
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) or its agent connected
therewith. In case any Security or Coupon which has matured or is about to
mature or has been called for redemption in full shall become mutilated or
defaced or be destroyed, lost or stolen, the Issuer may, instead of issuing a
substitute Security, pay or authorize the payment of the same or the relevant
Coupon (without surrender thereof except in the case of a mutilated or defaced
Security or Coupon), if the applicant for such payment shall furnish to the
Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as any of them may require to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee
evidence to their satisfaction of the destruction, loss or theft of such
Security or Coupons and of the ownership thereof.
Every substitute Security or Coupon of any series issued pursuant
to the provisions of this Section by virtue of the fact that any such Security
or Coupon is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Security or Coupon shall be at any time enforceable by anyone and shall
be entitled to all the benefits of (but shall be subject to all the limitations
of rights set forth in) this Indenture equally and proportionately with any and
all other Securities or Coupons of such
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19
series duly authenticated and delivered hereunder. All Securities and Coupons
shall be held and owned upon the express condition that, to the extent permitted
by law, the foregoing provisions are exclusive with respect to the replacement
or payment of mutilated, defaced or destroyed, lost or stolen Securities and
Coupons and shall preclude any and all other rights or remedies notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect to
the replacement or payment of negotiable instruments or other securities without
their surrender.
Section II.10 Cancellation of Securities; Destruction Thereof.
All Securities and Coupons surrendered for payment, redemption, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, if any, if surrendered to the Issuer or any agent of the
Issuer or the Trustee or any agent of the Trustee, shall be delivered to the
Trustee or its agent for cancellation or, if surrendered to the Trustee, shall
be cancelled by it; and no Securities or Coupons shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Indenture. The
Trustee or its agent shall, subject to the record retention requirements of the
Exchange Act, dispose of cancelled Securities and Coupons held by it and deliver
a certificate of disposition to the Issuer. If the Issuer or its agent shall
acquire any of the Securities or Coupons, such acquisition shall not operate as
a redemption or satisfaction of the indebtedness represented by such Securities
or Coupons unless and until the same are delivered to the Trustee or its agent
for cancellation.
Section II.11 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as Registered Securities without coupons, or as Unregistered Securities
with or without coupons attached thereto, of any authorized denomination, and
substantially in the form of the definitive Securities of such series but with
such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the concurrence of the
Trustee as evidenced by the execution and authentication thereof. Temporary
Securities may contain such references to any provisions of this Indenture as
may be appropriate. Every temporary Security shall be executed by the Issuer and
be authenticated by the Trustee upon the same conditions and in substantially
the same manner, and with like effect, as the definitive Securities. Without
unreasonable delay the Issuer shall execute and shall furnish definitive
Securities of such series and thereupon temporary Registered Securities of such
series may be surrendered in exchange therefor without charge at each office or
agency to be maintained by the Issuer for that purpose pursuant to Section 3.2
and, in the case of Unregistered Securities, at any agency maintained by the
Issuer for such purpose as specified pursuant to Section 2.3, and the Trustee
shall authenticate and deliver in exchange for such temporary Securities of such
series an equal aggregate principal amount of definitive Securities of the same
series having authorized denominations and, in the case of Unregistered
Securities, having attached thereto any appropriate Coupons. Until so exchanged,
the temporary Securities of any series shall be entitled to the same benefits
under this Indenture as definitive Securities of such series, unless otherwise
established pursuant to Section 2.3. The provisions of this Section are subject
to any restrictions or limitations on the issue and delivery of temporary
Unregistered Securities of any series that
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20
may be established pursuant to Section 2.3 (including any provision that
Unregistered Securities of such series initially be issued in the form of a
single global Unregistered Security to be delivered to a depositary or agency
located outside the United States and the procedures pursuant to which
definitive or global Unregistered Securities of such series would be issued in
exchange for such temporary global Unregistered Security).
ARTICLE III
COVENANTS OF THE ISSUER
Section III.1 Payment of Principal and Interest. The Issuer
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay or cause to be paid the principal of, and interest on,
if any, each of the Securities of such series (together with any additional
amounts payable pursuant to the terms of such Securities) at the place or
places, at the respective time or times and in the manner provided in such
Securities and in the Coupons, if any, appertaining thereto and in this
Indenture. The interest on Securities with Coupons attached (together with any
additional amounts payable pursuant to the terms of such Securities) shall be
payable only upon presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally mature. If any
temporary Unregistered Security provides that interest thereon may be paid while
such Security is in temporary form, the interest on any such temporary
Unregistered Security (together with any additional amounts payable pursuant to
the terms of such Security) shall be paid, as to the installments of interest
evidenced by Coupons attached thereto, if any, only upon presentation and
surrender thereof, and, as to the other installments of interest, if any, only
upon presentation of such Securities for notation thereon of the payment of such
interest, in each case subject to any restrictions that may be established
pursuant to Section 2.3. The interest, if any, on Registered Securities
(together with any additional amounts payable pursuant to the terms of such
Securities) shall be payable only to or upon the written order of the Holders
thereof and, at the option of the Issuer, may be paid by wire transfer or by
mailing checks for such interest payable to or upon the written order of such
Holders at their last addresses as they appear on the Securities register of the
Issuer.
Section III.2 Offices for Payments, etc. So long as any Registered
Securities are authorized for issuance pursuant to this Indenture or are
outstanding hereunder, the Issuer will maintain in the Borough of Manhattan, The
City of New York, an office or agency where the Registered Securities of each
series may be presented for payment, where the Securities of each series may be
presented for exchange as is provided in this Indenture and, if applicable,
pursuant to Section 2.3 and where the Registered Securities of each series may
be presented for registration of transfer as in this Indenture provided.
The Issuer will maintain one or more offices or agencies in a city
or cities located outside the United States (including any city in which such an
agency is required to be maintained under the rules of any stock exchange on
which the Securities of such series are listed) where the Unregistered
Securities, if any, of each series and Coupons, if any, appertaining
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21
thereto may be presented for payment. No payment on any Unregistered Security or
Coupon will be made upon presentation of such Unregistered Security or Coupon at
an agency of the Issuer within the United States nor will any payment be made by
transfer to an account in, or by mail to an address in, the United States unless
pursuant to applicable United States laws and regulations then in effect such
payment can be made without tax consequences adverse to the Issuer.
Notwithstanding the foregoing, payments in Dollars of Unregistered Securities of
any series and Coupons appertaining thereto which are payable in Dollars may be
made at an agency of the Issuer maintained in the Borough of Manhattan, The City
of New York if such payment in Dollars at each agency maintained by the Issuer
outside the United States for payment on such Unregistered Securities is illegal
or effectively precluded by exchange controls or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, The City of New
York, an office or agency where notices and demands to or upon the Issuer in
respect of the Securities of any series, the Coupons appertaining thereto or
this Indenture may be served.
The Issuer will give to the Trustee written notice of the location of
each such office or agency and of any change of location thereof. In case the
Issuer shall fail to maintain any agency required by this Section to be located
in the Borough of Manhattan, The City of New York, or shall fail to give such
notice of the location or for any change in the location of any of the above
agencies, presentations and demands may be made and notices may be served at the
Corporate Trust Office of the Trustee.
The Issuer may from time to time designate one or more additional
offices or agencies where the Securities of a series and any Coupons
appertaining thereto may be presented for payment, where the Securities of that
series may be presented for exchange as provided in this Indenture and pursuant
to Section 2.3 and where the Registered Securities of that series may be
presented for registration of transfer as in this Indenture provided, and the
Issuer may from time to time rescind any such designation, as the Issuer may
deem desirable or expedient; provided, that no such designation or rescission
shall in any manner relieve the Issuer of its obligations to maintain the
agencies provided for in this Section. The Issuer shall give to the Trustee
prompt written notice of any such designation or rescission thereof.
Section III.3 Appointment to Fill a Vacancy in Office of Trustee.
The Issuer, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee with respect to each series of
Securities hereunder.
Section III.4 Paying Agents. Whenever the Issuer shall appoint a
paying agent other than the Trustee with respect to the Securities of any
series, it will cause such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section,
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(a) that it will hold all sums received by it as such agent
for the payment of the principal of or interest on the Securities of such
series (whether such sums have been paid to it by the Issuer or by any other
obligor on the Securities of such series) in trust for the benefit of the
Holders of the Securities of such series, or Coupons appertaining thereto, if
any, or of the Trustee;
(b) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities of such series) to make any
payment of the principal of or interest on the Securities of such series when
the same shall be due and payable; and
(c) that it will pay any such sums so held in trust by it to the
Trustee upon the Trustee's written request at any time during the continuance
of the failure referred to in the foregoing clause (b).
The Issuer will, on or prior to each due date of the principal of
or interest on the Securities of such series, deposit with the paying agent a
sum sufficient to pay such principal or interest so becoming due, and (unless
such paying agent is the Trustee) the Issuer will promptly notify the Trustee of
any failure to take such action.
If the Issuer shall act as its own paying agent with respect to
the Securities of any series, it will, on or before each due date of the
principal of or interest on the Securities of such series, set aside, segregate
and hold in trust for the benefit of the Holders of the Securities of such
series or the Coupons appertaining thereto a sum sufficient to pay such
principal or interest so becoming due. The Issuer will promptly notify the
Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, but
subject to Section 9.1, the Issuer may at any time, for the purpose of obtaining
a satisfaction and discharge with respect to one or more or all series of
Securities hereunder, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust for any such series by the Issuer or any paying
agent hereunder, as required by this Section, such sums to be held by the
Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 9.3 and 9.4.
Section III.5 Compliance Certificates. The Issuer will furnish
to the Trustee on or before January 31 in each year (beginning with January 31,
2001) a brief certificate (which need not comply with Section 10.5) from the
principal executive, financial or accounting officer of the Issuer stating that
in the course of the performance by the signer of his or her duties as an
officer of the Issuer he or she would normally have knowledge of any default or
non-compliance by the Issuer in the performance of any covenants or conditions
contained in this Indenture, stating whether or not he or she has knowledge of
any such default or non-compliance and, if so, describing each such default or
non-compliance of which the signer has knowledge and the nature thereof.
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23
Section III.6 Corporate Existence. The Issuer will do or cause
to be done all things necessary to preserve and keep in full force and effect
its corporate existence and the rights (charter and statutory), licenses and
franchises of the Issuer and its Subsidiaries; provided, that the Issuer shall
not be required to preserve any such right, license or franchise, if, in the
judgment of the Issuer, the preservation thereof is no longer desirable in the
conduct of the business of the Issuer and its Subsidiaries taken as a whole and
the loss thereof is not disadvantageous in any material respect to the
Securityholders.
Section III.7 Maintenance of Properties. The Issuer will cause
all properties used in or useful in the conduct of its business or the business
of any Subsidiary to be maintained and kept in good condition, repair, and
working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Issuer may be necessary, so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times, except to the extent that the Issuer may be prevented
from so doing by circumstances beyond its control; provided, that nothing in
this Section shall prevent the Issuer from discontinuing the operation or
maintenance of any of such properties, or disposing of any of them, if such
discontinuance or disposal is, in the judgment of the Issuer, desirable in the
conduct of the business of the Issuer or any Subsidiary and not disadvantageous
in any material respect to the Securityholders.
Section III.8 Payment of Taxes and Other Claims. The Issuer will
pay or discharge or cause to be paid or discharged, before the same shall become
delinquent: (a) all taxes, assessments and governmental charges levied or
imposed upon the Issuer or any Subsidiary or upon the income, profits or
property of the Issuer or any Subsidiary; and (b) all lawful claims for labor,
materials and supplies, which, if unpaid, might by law become a lien upon the
property of the Issuer or any Subsidiary; provided, that the Issuer shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings, if the Issuer has duly
established reserves therefor to the extent required by generally accepted
accounting principles; and provided further that the Issuer shall not be
required to cause to be paid or discharged any such tax, assessment, charge or
claim if the Issuer shall determine that such payment is not advantageous to the
conduct of the business of the Issuer and its Subsidiaries taken as a whole and
that the failure so to pay or discharge is not disadvantageous in any material
respect to the Securityholders.
ARTICLE IV
SECURITYHOLDER LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
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Section IV.1 Issuer to Furnish Trustee Information as to Names
and Addresses of Securityholders. If and so long as the Trustee shall not be the
Security registrar for the Securities of any series, the Issuer and any other
obligor on the Securities will furnish or cause to be furnished to the Trustee a
list in such form as the Trustee may reasonably require of the names and
addresses of the Holders of the Registered Securities of such series pursuant to
Section 312 of the Trust Indenture Act:
(a) semi-annually not more than 5 days after each record date for
the payment of interest on such Registered Securities, as hereinabove
specified, as of such record date and on dates to be determined
pursuant to Section 2.3 for non-interest bearing Registered Securities
in each year; and
(b) at such other times as the Trustee may reasonably request in
writing, within thirty days after receipt by the Issuer of any such
request as of a date not more than 15 days prior to the time such
information is furnished.
Section IV.2 Reports by the Issuer. The Issuer covenants to file
with the Trustee, within 15 days after the Issuer is required to file the same
with the Commission, copies of the annual reports and of the information,
documents, and other reports that the Issuer may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act or
pursuant to Section 314 of the Trust Indenture Act.
Section IV.3 Reports by the Trustee. (a) On or before the first
July 15 which occurs not less than 60 days after the earliest date of issuance
of any Securities and on or before July 15 in each year thereafter, so long as
any Securities are Outstanding hereunder, the Trustee shall transmit by mail as
provided below to the Securityholders of each series of outstanding Securities,
as hereinafter in this Section provided, a brief report dated as of the
preceding May 15 with respect to:
(i) its eligibility under Section 6.10 and its
qualification under Section 6.9, or in lieu thereof, if to the
best of its knowledge it has continued to be eligible and
qualified under such Sections, a written statement to such
effect;
(ii) the character and amount of any advances (and if the
Trustee elects to so state, the circumstances surrounding the
making thereof) made by the Trustee (as such) which remain
unpaid on the date of such report and for the reimbursement of
which it claims or may claim a lien or charge, prior to that
of the Securities of such series, on any property or funds
held or collected by it as Trustee, except that the Trustee
shall not be required (but may elect) to report such advances
if such advances so remaining unpaid aggregate not more than
0.5% of the principal of the Securities of such series
outstanding on the date of such report;
(iii) the amount, interest rate and maturity date of all
other indebtedness owing by the Issuer (or any other obligor
on the Securities of such series) to the
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25
Trustee in its individual capacity on the date of such report,
with a brief description of any property held as collateral
security therefor, except any indebtedness based upon a
creditor relationship;
(iv) the property and funds, if any, physically in the
possession of the Trustee (as such) in respect of the
Securities of such series on the date of such report;
(v) any additional issue of Securities of such series
which the Trustee has not previously reported; and
(vi) any action taken by the Trustee in the performance
of its duties under this Indenture which the Trustee has not
previously reported and which in the Trustee's opinion
materially affects the Securities of such series, except
action in respect of a default, notice of which has been or is
to be withheld by it in accordance with the provisions of
Section 5.11.
(b The Trustee shall transmit to the Securityholders of each
series, as provided in subsection (c) of this Section, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) in respect of the Securities of such series since the date of
the last report transmitted pursuant to the provisions of subsection (a) of this
Section (or if no such report has yet been so transmitted, since the date of
this Indenture) for the reimbursement of which it claims or may claim a lien or
charge prior to that of the Securities of such series on property or funds held
or collected by it as Trustee and which it has not previously reported pursuant
to this subsection (b), except that the Trustee shall not be required (but may
elect) to report such advances if such advances remaining unpaid at any time
aggregate 10% or less of the principal amount of Securities of such series
outstanding at such time, such report to be transmitted within 90 days after
such time.
(c Reports pursuant to this Section shall be transmitted by
mail to all Holders of Securities of such series, as the names and addresses of
such Holders appear upon the Securities register as of a date not more than 15
days prior to the mailing thereof.
(d A copy of each such report shall, at the time of such
transmission to Securityholders, be furnished to the Issuer and be filed by the
Trustee with each stock exchange upon which the Securities of such series are
listed and also with the Commission. The Issuer agrees to notify the Trustee
when and as Securities of any series become listed on any national securities
exchange.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
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ON EVENT OF DEFAULT
Section V.1 Event of Default Defined, Acceleration of Maturity;
Waiver of Default. "Event of Default" with respect to Securities of any series,
wherever used herein, means any one of the following events which shall have
occurred and be continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a default in the payment of any installment of interest upon
any of the Securities of such series as and when the same shall become
due and payable, and continuance of such default for a period of 30
days; provided that, a valid extension of an interest payment period by
the Issuer in accordance with the terms of such Securities shall not
constitute a failure to pay interest; or
(b default in the payment of all or any part of the principal
or premium (if any) on any of the Securities of such series as and when
the same shall become due and payable either at maturity, upon any
redemption, by declaration or otherwise; or
(c default in the payment of any sinking fund installment as
and when the same shall become due and payable by the terms of the
Securities of such series and a continuance of such default for a
period of 30 days; or
(d failure on the part of the Issuer duly to observe or
perform any other of the covenants or agreements on the part of the
Issuer in the Securities of such series or contained in this Indenture
(other than a covenant or agreement included in this Indenture solely
for the benefit of a series of Securities other than such series) for a
period of 60 days after the date on which written notice specifying
such failure, stating that such notice is a "Notice of Default"
hereunder and demanding that the Issuer remedy the same, shall have
been given by registered or certified mail, return receipt requested,
to the Issuer by the Trustee, or to the Issuer and the Trustee by the
holders of at least 25% in aggregate principal amount of the
Outstanding Securities of the series to which such covenant or
agreement relates; or
(e a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Issuer or such of its
subsidiaries as may be specified in a supplemental indenture in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Issuer or such of its subsidiaries as may be specified
in a supplemental indenture for any substantial part of its or their
property or ordering the winding up or liquidation of its or their
affairs, and such decree or order shall remain unstayed and in effect
for a period of 60 consecutive days; or
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27
(f the Issuer or such of its subsidiaries as may be specified
in a supplemental indenture shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment or
taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Issuer or such of
its subsidiaries as may be specified in a supplemental indenture or for
any substantial part of its or their property, or make any general
assignment for the benefit of creditors; or
(g any other Event of Default provided in the supplemental
indenture or Board Resolution under which such series of Securities is
issued or in the form of Security for such series.
If an Event of Default described in clause (a), (b) or (c)
occurs and is continuing, then, and in each and every such case, except for any
series of Securities the principal of which shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Securities of each such affected series then Outstanding
hereunder (each such series voting as a separate class) by notice in writing to
the Issuer (and to the Trustee if given by Securityholders), may declare the
entire principal (or, if the Securities of such series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of such series) of all Securities of such series, and the interest
accrued thereon, if any, to be due and payable immediately, and upon any such
declaration, the same shall become immediately due and payable.
Except as otherwise provided in the terms of any series of
Senior Securities pursuant to Section 2.3, if an Event of Default described in
clause (d) or (g) above with respect to all series of the Senior Securities then
Outstanding, occurs and is continuing, then, and in each and every such case,
unless the Principal of all of the Senior Securities shall have already become
due and payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of all of the Senior Securities then Outstanding
hereunder (treated as one class) by notice in writing to the Issuer (and to the
Trustee if given by Securityholders), may declare the entire principal (or, if
the Senior Securities of any series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such series)
of all of the Senior Securities then Outstanding, and the interest accrued
thereon, if any, to be due and payable immediately, and upon such declaration,
the same shall become immediately due and payable. If an Event of Default
described in clause (e) or (f) above occurs and is continuing, then the
principal amount of all the Senior Securities then Outstanding, and the interest
accrued thereon, if any, shall become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder.
Except as otherwise provided in the terms of any series of
Subordinated Securities pursuant to Section 2.3, if an Event of Default
described in clause (d) or (g) above with respect to all series of Subordinated
Securities then Outstanding, occurs and is continuing, then, and in each and
every such case, unless the Principal of all of the Subordinated Securities
shall have already
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28
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of all of the Subordinated Securities then
Outstanding hereunder (treated as one class) by notice in writing to the Issuer
(and to the Trustee if given by Securityholders), may declare the entire
principal (or, if the Subordinated Securities of any series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of such series) of all of the Subordinated Securities then
Outstanding, and the interest accrued thereon, if any, to be due and payable
immediately, and upon such declaration, the same shall become immediately due
and payable. If an Event of Default described in clause (e) or (f) above occurs
and is continuing, then the principal amount of all of the Subordinated
Securities then Outstanding, and the interest accrued thereon, if any, shall
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.
If an Event of Default described in clause (d) or (g) occurs and
is continuing, which Event of Default is with respect to less than all series of
Senior Securities then Outstanding, then, and in each and every such case,
except for any series of Senior Securities the principal of which shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Senior Securities of each such
affected series then Outstanding hereunder (each such series voting as a
separate class) by notice in writing to the Issuer (and to the Trustee if given
by Securityholders), may declare the entire principal (or, if the Securities of
such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series) of all
Securities of such series, and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration, the same shall become
immediately due and payable.
If an Event of Default described in clause (d) or (g) occurs and
is continuing, which Event of Default is with respect to less than all series of
Subordinated Securities then Outstanding, then, and in each and every such case,
except for any series of Subordinated Securities the principal of which shall
have already become due and payable, either the Trustee or the Holders of not
less than 25% in aggregate principal amount of the Subordinated Securities of
each such affected series then Outstanding hereunder (each such series voting as
a separate class) by notice in writing to the Issuer (and to the Trustee if
given by Securityholders), may declare the entire principal (or, if the
Securities of such series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of such series) of all
Securities of such series, and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration, the same shall become
immediately due and payable.
The foregoing provisions are subject to the condition that if,
at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series (or of all the Securities, as the
case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided,
(A) the Issuer shall pay or shall deposit with the Trustee a
sum sufficient to pay
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29
(i) all matured installments of interest upon all the
Securities of such series (or all the Securities, as the case may
be); and
(ii) the principal of any and all Securities of such series (or
of all the Securities, as the case may be) which shall have become
due otherwise than by acceleration; and
(iii) interest upon such principal and, to the extent that
payment of such interest is enforceable under applicable law, on
overdue installments of interest, at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such series (or
at the respective rates of interest or Yields to Maturity of all the
Securities, as the case may be) to the date of such payment or
deposit; and
(iv) all amounts payable to the Trustee pursuant to Section
6.6; and
(B) all Events of Default under the Indenture, other than the non-
payment of the principal of Securities which shall have become due by
acceleration, shall have been cured, waived or otherwise remedied as
provided herein, then and in every such case the Holders of a majority,
or any applicable supermajority, in aggregate principal amount of all
the Securities of such series voting as a separate class (or all the
Securities, as the case may be, voting as a single class), then
Outstanding, by written notice to the Issuer and to the Trustee, may
waive all defaults with respect to such series (or with respect to all
the Securities, as the case may be) and rescind and annul such
declaration and its consequences, but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default or
shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and annulled,
the principal amount of such Original Issue Discount Securities shall be deemed,
for all purposes hereunder, to be such portion of the principal thereof as shall
be due and payable as a result of such acceleration, and payment of such portion
of the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
Section V.2 Collection of Indebtedness by Trustee; Trustee May Prove
Debt. The Issuer covenants that (a) in case default shall be made in the payment
of any installment of interest on any of the Securities of any series when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days, or (b) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity of
the Securities of
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30
such series or upon any redemption or by declaration or otherwise, then upon
demand of the Trustee, the Issuer will pay to the Trustee for the benefit of the
Holders of the Securities of such series the whole amount that then shall have
become due and payable on all Securities of such series, and such Coupons, for
principal and interest, as the case may be (with interest to the date of such
payment upon the overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series); and in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, and such other amount due the
Trustee under Section 6.6 in respect of Securities of such series.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the registered
Holders, whether or not the Securities of such series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon the Securities
and collect in the manner provided by law out of the property of the Issuer or
other obligor upon the Securities, wherever situated, all the moneys adjudged or
decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or
any other obligor upon the Securities under Title 11 of the United States Code
or any other applicable federal, state or foreign bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor, or in case of any other comparable judicial proceedings relative to the
Issuer or other obligor upon the Securities, or to the creditors or property of
the Issuer or such other obligor, the Trustee, irrespective of whether the
principal of the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any series are
Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) owing and
unpaid in respect of the Securities of any series, and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for amounts payable
to the Trustee under Section 6.6) and of the Securityholders allowed in
any judicial proceedings relative to the Issuer or other obligor upon
the Securities, or to the creditors or property of the Issuer or such
other obligor; and
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31
(b unless prohibited by applicable law and regulations, to
vote on behalf of the holders of the Securities of any series in any
election of a receiver, assignee, trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or
insolvency proceedings, custodian or other person performing similar
functions in respect of any such proceedings; and
(c to participate as a member, voting or otherwise, of any
official committee of creditors appointed in such matter and to collect
and receive any moneys or other property payable or deliverable on any
such claims, and to distribute all amounts received with respect to the
claims of the Securityholders and of the Trustee on their behalf; and
any trustee, receiver, or liquidator, custodian or other similar
official performing similar functions in respect of any such
proceedings is hereby authorized by each of the Securityholders to make
payments to the Trustee, and, in the event that the Trustee shall
consent to the making of payments directly to the Securityholders, to
pay to the Trustee its costs and expenses of collection and all other
amounts due to it pursuant to Section 6.6.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding, except as aforesaid in clause (b).
All rights of action and of asserting claims under this
Indenture, or under any of the Securities of any series or Coupons appertaining
to such Securities, may be enforced by the Trustee without the possession of any
of the Securities of such series or Coupons appertaining to such Securities or
the production thereof in any trial or other proceedings relative thereto, and
any such action or proceedings instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall be
awarded to the Trustee for ratable distribution to the Holders of the Securities
or Coupons appertaining to such Securities in respect of which such action was
taken, after payment of all sums due to the Trustee under Section 6.6 in respect
of such Securities.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities or Coupons appertaining to such Securities in
respect to which such action was taken, and it shall not be necessary to make
any Holders of such Securities or Coupons appertaining to such Securities
parties to any such proceedings.
Section V.3 Application of Proceeds. Any moneys collected by
the Trustee pursuant to this Article in respect of any series shall be applied
in the following order at the date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities and Coupons appertaining to
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32
such Securities in respect of which monies have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of such series in
reduced principal amounts in exchange for the presented Securities of like
series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such
series of Securities in respect of which monies have been collected,
including all amounts due to the Trustee and each predecessor Trustee
pursuant to Section 6.6 in respect to such series of Securities;
SECOND: In case the principal of the Securities of such series
in respect of which moneys have been collected shall not have become
and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of
the installments on such interest, with interest (to the extent that
such interest has been collected by the Trustee and is permitted by
applicable law) upon the overdue installments of interest at the same
rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities, such
payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall
be then due and payable, to the payment of the whole amount then owing
and unpaid upon all the Securities of such series for principal and
interest, with interest upon the overdue principal, and (to the extent
that such interest has been collected by the Trustee and is permitted
by applicable law) upon the overdue installations of interest at the
same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the Securities of such
series; and in case such moneys shall be insufficient to pay in full
the whole amount so due and unpaid upon the Securities of such series,
then to the payment of such principal and interest or Yield to
Maturity, without preference or priority of principal over interest or
Yield to Maturity, or of interest or Yield to Maturity over principal,
or of any installment of interest over any other installment of
interest or of any Security of such series over any other Security of
such series, ratably to the aggregate of such principal and accrued and
unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer
or any other person lawfully entitled thereto.
Section V.4 Suits for Enforcement. In case an Event of Default
has occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this
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33
Indenture or to enforce any other legal or equitable right vested in the Trustee
by this Indenture or by law.
Section V.5 Restoration of Rights on Abandonment of Proceedings.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Trustee, then and in
every such case the Issuer and the Trustee shall be restored respectively to
their former positions and rights hereunder, and all rights, remedies and powers
of the Issuer, the Trustee and the Securityholders shall continue as though no
such proceedings had been taken.
Section V.6 Limitations on Suits by Securityholders. No Holder
of any Security of any series or of any Coupon appertaining thereto shall have
any right by virtue or by availing of any provision of this Indenture to
institute any action or proceeding at law or in equity or in bankruptcy or
otherwise upon or under or with respect to this Indenture or such Security, or
for the appointment of a trustee, receiver, liquidator, custodian or other
similar official or for any other remedy hereunder or thereunder, unless (a)
such Holder previously shall have given to the Trustee written notice of an
Event of Default with respect to Securities of such series and of the
continuance thereof, as hereinbefore provided, and (b) the Holders of not less
than 25% in aggregate principal amount of the Securities of such series then
Outstanding (treated as a single class) shall have made written request upon the
Trustee to institute such action or proceedings in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and (c) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such action or
proceeding, and (d) no direction inconsistent with such written request during
such 60-day period shall have been given to the Trustee pursuant to Section 5.9;
it being understood and intended, and being expressly covenanted by the taker
and Holder of every Security or Coupon with every other taker and Holder and the
Trustee, that no one or more Holders of Securities of any series or Coupons
appertaining to such Securities shall have any right in any manner whatever by
virtue or by availing of any provision of this Indenture or any Security to
affect, disturb or prejudice the rights of any other such taker or Holder of
Securities or Coupons appertaining to such Securities, or to obtain or seek to
obtain priority over or preference to any other such taker or Holder or to
enforce any right under this Indenture or any Security, except in the manner
herein provided and for the equal, ratable and common benefit of all Holders of
Securities of the applicable series and Coupons appertaining to such Securities.
For the protection and enforcement of the provisions of this Section, each and
every Securityholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section V.7 Unconditional Right of Securityholders to Institute
Certain Suits. Notwithstanding any other provision in this Indenture and any
provision of any Security, the right of any Holder of any Security or Coupon to
receive payment of the principal of and interest on such Security or Coupon on
or after the respective due dates expressed in such Security or Coupon or the
applicable redemption dates provided for in such Security, or to institute suit
for
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34
the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of such Holder.
Section V.8 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default. Except as provided in Section 5.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders of Securities
or Coupons is intended to be exclusive of any other right or remedy and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of
Securities or Coupons to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right or
power or shall be construed to be a waiver of any such Event of Default or an
acquiescence therein. Every power and remedy given by this Indenture, any
Security or law to the Trustee or to the Holders of Securities or Coupons may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or, subject to Section 5.6, by the Holders of Securities or Coupons.
Section V.9 Control by Holders of Securities. The Holders of a
majority in aggregate principal amount of the Securities of each series affected
(with each such series voting as a separate class) at the time Outstanding shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee with respect to the Securities of such series by this
Indenture; provided, that such direction shall not be otherwise than in
accordance with law and the provisions of this Indenture; and provided, further,
that (subject to the provisions of Section 6.1) the Trustee shall have the right
to decline to follow any such direction if (a) the Trustee, being advised by
counsel, shall determine that the action or proceeding so directed may not
lawfully be taken; or (b) if the Trustee by its board of directors, the
executive committee or a trust committee of directors or Responsible Officers of
the Trustee shall determine in good faith that the action or proceedings so
directed would involve the Trustee in personal liability; or (c) if the Trustee
in good faith shall so determine that the actions or forbearances specified in
or pursuant to such direction would be unduly prejudicial to the interests of
Holders of the Securities of all affected series not joining in the giving of
said direction, it being understood that (subject to Section 6.1) the Trustee
shall have no duty to ascertain whether or not such actions or forbearances are
unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction or directions by Securityholders.
Section V.10 Waiver of Past Defaults. Prior to the declaration
of acceleration of the maturity of the Securities of any series as provided in
Section 5.1, the Holders of a
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majority in aggregate principal amount of the Securities of such series at the
time Outstanding (voting as a single class) may on behalf of the Holders of all
such Securities waive any past default or Event of Default described in Section
5.1 and its consequences, except a default in respect of a covenant or provision
hereof which cannot be modified or amended without the consent of the Holder of
each Security affected. In the case of any such waiver, the Issuer, the Trustee
and the Holders of all such Securities shall be restored to their former
positions and rights hereunder, respectively, and such default shall cease to
exist and be deemed to have been cured and not to have occurred for purposes of
this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section V.11 Trustee to Give Notice of Default, but May
Withhold in Certain Circumstances. The Trustee shall, within 90 days after the
occurrence of a default with respect to the Securities of any series, give
notice of all defaults with respect to that series known to the Trustee (i) if
any Unregistered Securities of that series are then Outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and at least once in an Authorized Newspaper
in London and (ii) to all Holders of Securities of such series in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act, unless in
each case such defaults shall have been cured before the mailing or publication
of such notice (the term "default" for the purpose of this Section being hereby
defined to mean any event or condition which is, or with notice or lapse of time
or both would become, an Event of Default); provided, that, except in the case
of default in the payment of the principal of or interest on any of the
Securities of such series, or in the payment of any sinking fund installment on
such series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee, or a trust committee of
directors or trustees and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Securityholders of such series.
Section V.12 Right of Court to Require Filing of Undertaking
to Pay Costs. All parties to this Indenture agree, and each Holder of any
Security or Coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under clause (d) or (g) of Section 5.1 (if the
suit relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities then Outstanding and affected thereby,
or in the case of any suit relating to or arising under clause (d) or (g) (if
the suit under clause (d) or (g) relates to all the Securities then Outstanding)
or (e) or (f) of Section 5.1, 10% in aggregate principal amount of all
Securities then Outstanding, or to any suit instituted by any Securityholder for
the enforcement of the payment
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36
of the principal of or interest on any Security on or after the due date
expressed in such Security or any date fixed for redemption.
ARTICLE VI
CONCERNING THE TRUSTEE
Section VI.1 Duties and Responsibilities of the Trustee;
During Default; Prior to Default. Prior to the occurrence of an Event of Default
with respect to the Securities of a particular series and after the curing or
waiving of all Events of Default which may have occurred with respect to such
series, the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture with respect to such series of
Securities. In case an Event of Default with respect to the Securities of a
series has occurred and has not been cured or waived, the Trustee shall exercise
with respect to such series of Securities such of the rights and powers vested
in it by this Indenture with respect to such series of Securities, and use the
same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that
(a prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or waiving
of all such Events of Default with respect to such series which may
have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined
solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in
this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions
expressed therein, upon any statements, certificates or
opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Indenture;
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37
(b the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(c the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 5.9 relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
The provisions of this Section 6.1 are in furtherance of and
subject to Section 315 of the Trust Indenture Act.
Section VI.2 Certain Rights of the Trustee. In furtherance of
and subject to the Trust Indenture Act, and subject to Section 6.1:
(a the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture, note, coupon, security or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officer's
Certificate (unless other evidence in respect thereof is specifically
prescribed herein or in the terms established in respect of any
series); and any resolution of the Board of Directors may be evidenced
to the Trustee by a copy thereof certified by the secretary or an
assistant secretary of the Issuer;
(c the Trustee may consult with counsel and any written
advice or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith and in reliance
thereon in accordance with such advice or Opinion of Counsel;
(d the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders pursuant to the
provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred therein or
thereby;
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(e the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(f prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security or other paper or document unless (i)
requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities of all series
affected then Outstanding (treated as one class) or (ii) otherwise
provided in the terms of any series of Securities pursuant to Section
2.3; provided, that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a
condition to proceeding; the reasonable expenses of every such
investigation shall be paid by the Issuer or, if paid by the Trustee or
any predecessor trustee, shall be repaid by the Issuer upon demand; and
(g the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys not regularly in its employ and the Trustee
shall not be responsible for any misconduct or negligence on the part
of any such agent or attorney appointed with due care by it hereunder.
Section VI.3 Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities or Coupons. The Trustee shall not be accountable for the use or
application by the Issuer of any of the Securities or of the proceeds thereof.
Section VI.4 Trustee and Agents May Hold Securities or
Coupons; Collections, etc. The Trustee or any agent of the Issuer or of the
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons with the same rights it would have if it were
not the Trustee or such agent and may otherwise deal with the Issuer and
receive, collect, hold and retain collections from the Issuer with the same
rights it would have if it were not the Trustee or such agent.
Section VI.5 Moneys Held by Trustee. Subject to the provisions
of Section 9.4 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other
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39
funds except to the extent required by mandatory provisions of law. Neither the
Trustee nor any agent of the Issuer or the Trustee shall be under any liability
for interest on any moneys received by it hereunder.
Section VI.6 Compensation and Indemnification of Trustee and
its Prior Claim. The Issuer covenants and agrees to pay to the Trustee from time
to time, and the Trustee shall be entitled to reasonable compensation (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) and the Issuer covenants and agrees to pay or
reimburse the Trustee and each predecessor trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by or on behalf
of it in accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
The Issuer also covenants to indemnify the Trustee and each predecessor trustee
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this Indenture, including the costs and
expenses of enforcing the Indenture against the Issuer (including this Section
6.6) or the trusts hereunder and its duties hereunder, including the costs and
expenses of defending itself against or investigating any claim of liability in
the premises, whether asserted by the Issuer or any security holder or any other
Person. The obligations of the Issuer under this Section to compensate and
indemnify the Trustee and each predecessor trustee and to pay or reimburse the
Trustee and each predecessor trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture and the resignation or removal of
the Trustee. Such additional indebtedness shall be a senior claim to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the Holders of particular
Securities or Coupons, and the Securities are hereby subordinated to such senior
claim. When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.1(e) or (f) hereof of occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under the
Bankruptcy Law.
Section VI.7 Right of Trustee to Rely on Officer's Certificate,
etc. Subject to Sections 6.1 and 6.2, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officer's Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
Section VI.8 Indentures Not Creating Potential Conflicting
Interests for the Trustee. The following indentures are hereby specifically
described for the purposes of Section
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40
310(b)(1) of the Trust Indenture Act: this Indenture with respect to series of
Securities that are of an equal priority.
Section VI.9 Qualification of Trustee; Conflicting Interests.
The Trustee shall comply with Section 310(b) of the Trust Indenture Act.
Section VI.10 Persons Eligible for Appointment as Trustee. The
Trustee for each series of Securities hereunder shall at all times be a
corporation or banking association organized and doing business under the laws
of the United States of America, any State thereof or the District of Columbia,
having a combined capital and surplus of at least $100,000,000, and which is
authorized under such laws to exercise corporate trust powers and is subject to
supervision or examination by Federal, state or District of Columbia authority.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 6.11.
The provisions of this Section 6.10 are in furtherance of and
subject to Section 310(a) of the Trust Indenture Act.
Section VI.11 Resignation and Removal; Appointment of
Successor Trustee. (ai The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all series of
Securities by giving written notice of resignation to the Issuer and (i) if any
Unregistered Securities of a series affected are then Outstanding, by giving
notice of such resignation to the Holders thereof, by publication at least once
in an Authorized Newspaper in the Borough of Manhattan, The City of New York,
and at least once in an Authorized Newspaper in London, (ii) if any Unregistered
Securities of a series affected are then Outstanding, by mailing notice of such
resignation to the Holders thereof who have filed their names and addresses with
the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act at such
addresses as were so furnished to the Trustee and (iii) by mailing notice of
such resignation to the Holders of then Outstanding Registered Securities of
each series affected at their addresses as they shall appear on the registry
books. Upon receiving such notice of resignation, the Issuer shall promptly
appoint a successor trustee or trustees with respect to the applicable series by
written instrument in duplicate, executed by authority of the Board of
Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee or trustees. If no successor
trustee shall have been so appointed with respect to any series and have
accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Securityholder
who has been a bona fide Holder of a Security or Securities of the applicable
series for at least six months may, subject to the provisions of Section 5.12,
on behalf of himself and all others similarly situated, petition any such court
for the
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41
appointment of a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the
provisions of Section 310(b) of the Trust Indenture Act with
respect to any series of Securities after written request
therefor by the Issuer or by any Securityholder who has been a
bona fide Holder of a Security or Securities of such series
for at least six months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.10 and Section
310(a) of the Trust Indenture Act and shall fail to resign
after written request therefor by the Issuer or by any
Securityholder; or
(iii) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged
bankrupt or insolvent, or a receiver or liquidator of the
Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation; then, in any such case, the
Issuer may remove the Trustee with respect to the applicable
series of Securities and appoint a successor trustee for such
series by written instrument, in duplicate, executed by order
of the Board of Directors of the Issuer, one copy of which
instrument shall be delivered to the Trustee so removed and
one copy to the successor trustee, or, subject to the
provisions of Section 315(e) of the Trust Indenture Act, any
Securityholder who has been a bona fide Holder of a Security
or Securities of such series for at least six months may on
behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor trustee with
respect to such series. Such court may thereupon, after such
notice, if any, as it may deem proper and so prescribe, remove
the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of
the Securities of each series at the time outstanding may at any time
remove the Trustee with respect to Securities of such series and
appoint a successor trustee with respect to the Securities of such
series by delivering to the Trustee so removed, to the successor
trustee so appointed and to the Issuer the evidence provided for in
Section 7.1 of the action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to
any series and any appointment of a successor trustee with respect to
such series pursuant to any of the provisions of this Section 6.11
shall become effective upon acceptance of appointment by the successor
trustee as provided in Section 6.12.
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Section VI.12 Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed as provided in Section 6.11 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder; but, nevertheless, on the
written request of the Issuer or of the successor trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to Section 9.4,
pay over to the successor trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
trustee all such rights, powers, duties and obligations. Upon request of any
such successor trustee, the Issuer shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 6.6.
If a successor trustee is appointed with respect to the
Securities of one or more (but not all) series, the Issuer, the predecessor
trustee and each successor trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the predecessor
trustee with respect to the Securities of any series as to which the predecessor
trustee is not retiring shall continue to be vested in the predecessor trustee,
and shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such trustees co-trustees of the
same trust and that each such trustee shall be trustee of a trust or trusts
under separate indentures.
No successor trustee with respect to any series of Securities
shall accept appointment as provided in this Section 6.12 unless at the time of
such acceptance such successor trustee shall be qualified under Section 310(b)
of the Trust Indenture Act and eligible under the provisions of Section 6.10.
Upon acceptance of appointment by any successor trustee as
provided in this Section 6.12, the Issuer shall give notice thereof (a) if any
Unregistered Securities of a series affected are then Outstanding, to the
Holders thereof, by publication of such notice at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and at least once in
an Authorized Newspaper in London, (b) if any Unregistered Securities of a
series affected are then Outstanding, to the Holders thereof who have filed
their names and addresses with the Trustee pursuant to Section 313(c)(2) of the
Trust Indenture Act, by mailing such notice to such Holders at such addresses as
were so furnished to the Trustee (and the Trustee shall make such information
available to the Issuer for such purpose) and (c) to the Holders of Registered
Securities of each series affected, by mailing such notice to such Holders at
their addresses as
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43
they shall appear on the registry books. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
6.11. If the Issuer fails to give such notice within ten days after acceptance
of appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Issuer.
Section VI.13 Merger, Conversion, Consolidation or Succession
to Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided, that such
corporation shall be qualified under Section 310(b) of the Trust Indenture Act
and eligible under the provisions of Section 6.10, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Securities of any
series shall have been authenticated but not delivered, any such successor to
the Trustee may adopt the certificate of authentication of any predecessor
trustee and deliver such Securities so authenticated; and, in case at that time
any of the Securities of any series shall not have been authenticated, any such
successor to the Trustee may authenticate such Securities either in the name of
any predecessor hereunder or in the name of the successor Trustee; and in all
such cases such certificate of authentication shall have the full force which
under this Indenture or the Securities of such series it is provided that the
certificate of authentication of the Trustee shall have; provided, that the
right to adopt the certificate of authentication of any predecessor trustee or
to authenticate Securities of any series in the name of any predecessor trustee
shall apply only to its successor or successors by merger, conversion or
consolidation.
Section VI.14 Preferential Collection of Claims Against the
Issuer. The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated.
Section VI.15 Appointment of Authenticating Agent. As long as
any Securities of a series remain Outstanding, the Trustee may, by an instrument
in writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.9.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is made
in this Indenture to the authentication and delivery of Securities of any series
by the Trustee or to the Trustee's Certificate of Authentication, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent for such series and a Certificate of Authentication
executed on behalf of
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the Trustee by such Authenticating Agent. Such Authenticating Agent shall at all
times be a corporation organized and doing business under the laws of the United
States of America or of any State, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$100,000,000 (determined as provided in Section 6.10 with respect to the
Trustee) and subject to supervision or examination by federal or state
authority.
Any corporation into which any Authenticating Agent may be
merged or converted, or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency business of any Authenticating Agent, shall continue to be the
Authenticating Agent with respect to all series of Securities for which it
served as Authenticating Agent without the execution or filing of any paper or
any further act on the part of the Trustee or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be eligible
shall, resign by giving written notice of resignation to the Trustee and to the
Issuer.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 6.15 with respect to
one or more series of Securities, the Trustee shall upon receipt of an Issuer
Order appoint a successor Authenticating Agent and the Issuer shall provide
notice of such appointment to all Holders of Securities of such series in the
manner and to the extent provided in Section 11.4. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
rights, powers, duties and responsibilities of its predecessor hereunder, with
like effect as if originally named as Authenticating Agent. The Issuer agrees to
pay to the Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any series shall
have no responsibility or liability for any action taken by it as such at the
direction of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
Section VII.1 Evidence of Action Taken by Securityholders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified percentage
in principal amount of the Securityholders of any or all series may be embodied
in and evidenced by one or more instruments of substantially similar tenor
signed by such specified percentage of Securityholders in person or by agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee. Proof of execution of any instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Sections 6.1 and 6.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
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45
Section VII.2 Proof of Execution of Instruments and of
Holding of Securities. Subject to Sections 6.1 and 6.2, the execution of any
instrument by a Securityholder or his agent or proxy may be proved in accordance
with such reasonable rules and regulations as may be prescribed by the Trustee
or in such manner as shall be satisfactory to the Trustee. The holding of
Registered Securities shall be proved by the Security register or by a
certificate of the registrar thereof.
Section VII.3 Holders to Be Treated as Owners. The Issuer,
the Trustee and any agent of the Issuer or the Trustee may deem and treat the
person in whose name any Security shall be registered upon the Security register
for such series as the absolute owner of such Security (whether or not such
Security shall be overdue and notwithstanding any notation of ownership or other
writing thereon) for the purpose of receiving payment of or on account of the
principal of and, subject to the provisions of this Indenture, interest on such
Security and for all other purposes; and neither the Issuer nor the Trustee nor
any agent of the Issuer or the Trustee shall be affected by any notice to the
contrary. The Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Holder of any Unregistered Security and the Holder of any Coupon as
the absolute owner of such Unregistered Security or Coupon (whether or not such
Unregistered Security or Coupon shall be overdue) for the purpose of receiving
payment thereof or on account thereof and for all other purposes and neither the
Issuer, the Trustee, nor any agent of the Issuer or the Trustee shall be
affected by any notice to the contrary. All such payments so made to any such
person, or upon his order, shall be valid, and, to the extent of the sum or sums
so paid, effectual to satisfy and discharge the liability for moneys payable
upon any such Unregistered Security or Coupon.
Section VII.4 Securities Owned by Issuer Deemed Not
Outstanding. In determining whether the Holders of the requisite aggregate
principal amount of Outstanding Securities of any or all series have concurred
in any request, demand, authorization, direction, notice, consent, waiver or
other action by Securityholders under this Indenture, Securities which are owned
by the Issuer or any other obligor on the Securities with respect to which such
determination is being made or by any person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Issuer or
any other obligor on the Securities with respect to which such determination is
being made shall be disregarded and deemed not to be Outstanding for the purpose
of any such determination, except that for the purpose of determining whether
the Trustee shall be protected in relying on any such action only Securities
which the Trustee knows are so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the Issuer
or any other obligor upon the Securities or any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Issuer or any other obligor on the Securities. In case of a dispute as to such
right, the advice of counsel shall be full protection in respect of any decision
made by the Trustee in accordance with such advice. Upon request of the Trustee,
the Issuer shall furnish to the Trustee promptly an Officer's Certificate
listing and identifying all Securities, if any, known by the Issuer to be owned
or held by or for the account of any of the above-described persons; and,
subject to Sections 6.1 and 6.2,
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46
the Trustee shall be entitled to accept such Officer's Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Securities not
listed therein are Outstanding for the purpose of any such determination.
Section VII.5 Right of Revocation of Action Taken. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 7.1, of the taking of any action by the Holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Indenture in connection with such action, any Holder
of a Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have consented
to such action may, by filing written notice at the Corporate Trust Office and
upon proof of holding as provided in this Article, revoke such action so far as
concerns such Security. Except as aforesaid, any such action taken by the Holder
of any Security shall be conclusive and binding upon such Holder and upon all
future Holders and owners of such Security and of any Securities issued in
exchange or substitution therefor or on registration of transfer thereof,
irrespective of whether or not any notation in regard thereto is made upon any
such Security. Any action taken by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action shall be conclusively
binding upon the Issuer, the Trustee and the Holders of all the Securities
affected by such action.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
Section VIII.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of its Board of
Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order), and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more series any
property or assets;
(b) to evidence (1) the succession of another corporation
to the Issuer, or successive successions, whether by merger,
amalgamation, acquisition of assets or capital stock, by operation of
law or otherwise, (2) the assumption by the successor corporation of
the covenants, agreements and obligations of the Issuer pursuant to any
applicable covenants herein and pursuant to the terms of the Securities
as set forth in Section 2.3 and (3) the conversion of the Securities
into the capital stock of such successor corporation pursuant to any
applicable covenants herein and pursuant to the terms of the Securities
as set forth in Section 2.3;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the Issuer and the
Trustee shall consider to be for the
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47
protection of the Holders of Securities or Coupons, and to make the
occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an Event
of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth; provided, that
in respect of any such additional covenant, restriction, condition or
provision such supplemental indenture may provide for a particular
period of grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such an Event of Default or may limit the
remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal
amount of the Securities of such series to waive such an Event of
Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture, or to make any other provisions as
the Issuer may deem necessary or desirable, provided, that no such
action shall adversely affect the interests of the Holders of the
Securities or Coupons;
(e) to establish the forms or terms of Securities of any
series or of the Coupons appertaining to such Securities as permitted
by Sections 2.1 and 2.3; and
(f) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Section 6.12.
The Trustee is hereby authorized to join with the Issuer in
the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of
Section 8.2.
Section VIII.2 Supplemental Indentures with Consent of
Securityholders.
(a) Except as set forth in paragraph (c) below, with the
consent (evidenced as provided in Article VII) of the Holders of not
less than a majority in aggregate principal amount of the Securities at
the time Outstanding of all series of Senior Securities affected by
such supplemental indenture (voting as one class), the Issuer, when
authorized by a
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48
resolution of its Board of Directors (which resolution may provide general terms
or parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order), and
the Trustee may, from time to time and at any time, enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as in force and effect at the date of execution thereof) for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of each such
series or of the Coupons appertaining to such Securities.
(b) Except as set forth in paragraph (c) below, with the
consent (evidenced as provided in Article VII) of the Holders of not less than a
majority in aggregate principal amount of the Securities at the time Outstanding
of all series of Subordinated Securities affected by such supplemental indenture
(voting as one class), the Issuer, when authorized by a resolution of its Board
of Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order), and the Trustee may, from
time to time and at any time, enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act as in
force and effect at the date of execution thereof) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the Holders of the Securities of each such series or of the
Coupons appertaining to such Securities.
(c) No such supplemental indenture shall (i) extend the final
maturity of any Security, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce any amount
payable on redemption thereof, or make the principal thereof (including any
amount in respect of original issue discount), or interest thereon payable in
any coin or currency other than that provided in the Securities and Coupons or
in accordance with the terms thereof, or reduce the amount of the principal of
an Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 5.1 or the amount
thereof provable in bankruptcy pursuant to Section 5.2, or alter the provisions
of Section 10.11 or 10.12 or impair or affect the right of any Securityholder to
institute suit for the payment thereof when due or, if the Securities provide
therefor, any right of repayment at the option of the Securityholder, in each
case without the consent of the Holder of each Security so affected, or (ii)
reduce the aforesaid percentage of Securities of any series, the consent of the
Holders of which is required for any such supplemental indenture, without the
consent of the Holders of each Security so affected.
(d) A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of Holders of
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49
Securities of such series, or of Coupons appertaining to such
Securities, with respect to such covenant or provision, shall be deemed
not to affect the rights under this Indenture of the Holders of
Securities of any other series or of the Coupons appertaining to such
Securities.
Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors (which resolution may provide general terms
or parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order)
certified by the secretary or an assistant secretary of the Issuer authorizing
the execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of the Holders of the Securities as aforesaid
and other documents, if any, required by Section 7.1, the Trustee shall join
with the Issuer in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall give notice thereof (i) to the Holders of then Outstanding Registered
Securities of each series affected thereby, by mailing a notice thereof by
first-class mail to such Holders at their addresses as they shall appear on the
Security register, (ii) if any Unregistered Securities of a series affected
thereby are then Outstanding, to the Holders thereof who have filed their names
and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act, by mailing a notice thereof by first-class mail to such Holders
at such addresses as were so furnished to the Trustee and (iii) if any
Unregistered Securities of a series affected thereby are then Outstanding, to
all Holders thereof, by publication of a notice thereof at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and at
least once in an Authorized Newspaper in London, and in each case such notice
shall set forth in general terms the substance of such supplemental indenture.
Any failure of the Issuer to give such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
Section VIII.3 Effect of Supplemental Indenture. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
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50
Section VIII.4 Documents to Be Given to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an Officer's
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article 8 complies with the
applicable provisions of this Indenture.
Section VIII.5 Notation on Securities in Respect of
Supplemental Indentures. Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to the provisions of
this Article may bear a notation in form approved by the Trustee for such series
as to any matter provided for by such supplemental indenture or as to any action
taken by Securityholders. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then Outstanding.
ARTICLE IX
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section IX.1 Satisfaction and Discharge of Indenture.
(a) The following provisions shall apply to the Securities of
each series unless specifically otherwise provided in a Board
Resolution, Officers Certificate or indenture supplemental hereto
provided pursuant to Section 2.3. If at any time (i) the Issuer shall
have paid or caused to be paid the principal of and interest on all the
Securities of any series Outstanding hereunder and all unmatured
Coupons appertaining thereto (other than Securities of such series and
Coupons appertaining thereto which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 2.9) as and
when the same shall have become due and payable, or (ii) the Issuer
shall have delivered to the Trustee for cancellation all Securities of
any series theretofore authenticated and all unmatured Coupons
appertaining thereto (other than any Securities of such series and
Coupons appertaining thereto which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as provided in
Section 2.9) or (iii) in the case of any series of Securities where the
exact amount (including the currency of payment) of principal of and
interest due on which can be determined at the time of making the
deposit referred to in clause (B) below, (A) all the Securities of such
series and all unmatured Coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one
year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption, and (B) the Issuer shall have irrevocably deposited or
caused to be deposited with the Trustee as
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51
trust funds in trust the entire amount in (i) cash (other than moneys
repaid by the Trustee or any paying agent to the Issuer in accordance
with Section 9.4), (ii) in the case of any series of Securities the
payments on which may only be made in Dollars, direct obligations of
the United States of America, backed by its full faith and credit
("U.S. Government Obligations"), maturing as to principal and interest
at such times and in such amounts as will insure the availability of
cash sufficient to pay at such maturity or upon such redemption, as the
case may be, or (iii) a combination thereof, sufficient, in the opinion
of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee,
to pay (x) the principal and interest on all Securities of such series
and Coupons appertaining thereto on each date that such principal or
interest is due and payable and (y) any mandatory sinking fund payments
on the dates on which such payments are due and payable in accordance
with the terms of the Indenture and the Securities of such series; and
if, in any such case, the Issuer shall also pay or cause to be paid all
other sums payable hereunder by the Issuer, then this Indenture shall
cease to be of further effect (except as to (i) rights of registration
of transfer and exchange of Securities of such Series and of Coupons
appertaining thereto pursuant to Section 2.8 and the Issuer's right of
optional redemption, if any, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities or Coupons, (iii) rights of
holders of Securities and Coupons appertaining thereto pursuant to
Section 2.8 to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders to receive mandatory
sinking fund payments, if any, (iv) any optional redemption rights of
such series of Securities to the extent to be exercised to make such
call for redemption within one year, (v) the rights, obligations,
duties and immunities of the Trustee hereunder, including those under
Section 6.6, (vi) the rights of the Holders of Securities of such
series and Coupons appertaining thereto as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or
any of them, and (vii) the obligations of the Issuer under Section 3.2)
and the Trustee, on demand of the Issuer accompanied by an Officer's
Certificate and an Opinion of Counsel and at the cost and expense of
the Issuer, shall execute proper instruments acknowledging such
satisfaction of and discharging this Indenture; provided, that the
rights of Holders of the Securities and Coupons to receive amounts in
respect of principal of and interest on the Securities and Coupons held
by them shall not be delayed longer than required by then-applicable
mandatory rules or policies of any securities exchange upon which the
Securities are listed. The Issuer agrees to reimburse the Trustee for
any costs or expenses thereafter reasonably and properly incurred and
to compensate the Trustee for any services thereafter reasonably and
properly rendered by the Trustee in connection with this Indenture or
the Securities of such series.
(b) The following provisions shall apply to the Securities of
each series unless specifically otherwise provided in a Board
Resolution, Officer's Certificate or indenture supplemental hereto
provided pursuant to Section 2.3. In addition to discharge of the
Indenture pursuant to the next preceding paragraph, in the case of any
series of Securities the exact amounts (including the currency of
payment) of principal of and interest due on
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52
which can be determined at the time of making the deposit referred to
in clause (A) below, the Issuer shall be deemed to have paid and
discharged the entire indebtedness on all the Securities of such a
series and the Coupons appertaining thereto on the date of the deposit
referred to in subparagraph (A) below, and the provisions of this
Indenture with respect to the Securities of such series and Coupons
appertaining thereto shall no longer be in effect (except as to (i)
rights of registration of transfer and exchange of Securities of such
series and of Coupons appertaining thereto pursuant to Section 2.8 and
the Issuer's right of optional redemption, if any, (ii) substitution of
mutilated, defaced, destroyed, lost or stolen Securities or Coupons,
(iii) rights of Holders of Securities and Coupons appertaining thereto
to receive payments of principal thereof and interest thereon, upon the
original stated due dates therefor (but not upon acceleration), and
remaining rights of the Holders to receive mandatory sinking fund
payments, if any, (iv) any optional redemption rights of such series of
Securities to the extent to be exercised to make such call for
redemption within one year, (v) the rights, obligations, duties and
immunities of the Trustee hereunder, (vi) the rights of the Holders of
Securities of such series and Coupons appertaining thereto as
beneficiaries hereof with respect to the property so deposited with the
Trustee payable to all or any of them and (vii) the obligations of the
Issuer under Section 3.2) and the Trustee, at the expense of the
Issuer, shall at the Issuer's request, execute proper instruments
acknowledging the same, if
(A) with reference to this provision the Issuer has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee as trust funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the Securities
of such series and Coupons appertaining thereto (i) cash in an amount,
or (ii) in the case of any series of Securities the payments on which
may only be made in Dollars, U.S. Government Obligations, maturing as
to principal and interest at such times and in such amounts as will
insure the availability of cash or (iii) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay (x) the principal and interest
on all Securities of such series and Coupons appertaining thereto on
each date that such principal or interest is due and payable and (y)
any mandatory sinking fund payments on the dates on which such payments
are due and payable in accordance with the terms of the Indenture and
the Securities of such series;
(B) such deposit will not result in a breach or violation of,
or constitute a default under, any agreement or instrument to which the
Issuer is a party or by which it is bound;
(C) the Issuer has delivered to the Trustee an opinion of
counsel from a nationally recognized law firm based on the fact that
(x) the Issuer has received from, or there has been published by, the
IRS a ruling or (y) since the date hereof, there has been a change in
the applicable United States federal income tax law, in either case to
the effect that, and such opinion shall confirm that, the Holders of
the Securities of such series and Coupons appertaining thereto will not
recognize income, gain or loss for United States federal income tax
purposes as a result of such deposit, defeasance and discharge and will
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53
be subject to United States federal income tax on the same amount and
in the same manner and at the same times, as would have been the case
if such deposit, defeasance and discharge had not occurred;
(D) the Issuer has delivered to the Trustee an Opinion of
Counsel to the effect that after the 91st day following the deposit,
the trust funds will not be subject to avoidance as a preferential
transfer under Section 547(b) of the United States Bankruptcy Code
(except with respect to any Holder that is an "insider" of the Issuer
within the meaning of the United States Bankruptcy Code); and
(E) the Issuer has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this
provision have been complied with.
(C) The Issuer shall be released from its obligations under
Sections 3.6 and 3.7B and unless otherwise provided for in the Board
Resolution, Officer's Certificate or Indenture supplemental hereto
establishing such series of Securities, from all covenants and other
obligations referred to in Section 2.3(19) or 2.3(21) with respect to
such series of Securities, and any Coupons appertaining thereto,
outstanding on and after the date the conditions set forth below are
satisfied (hereinafter, "covenant defeasance"). For this purpose, such
covenant defeasance means that, with respect to the Outstanding
Securities of any series, the Issuer may omit to comply with and shall
have no liability in respect of any term, condition or limitation set
forth in such Section, whether directly or indirectly by reason of any
reference elsewhere herein to such Section or by reason of any
reference in such Section to any other provision herein or in any other
document and such omission to comply shall not constitute an Event of
Default under Section 5.1, but the remainder of this Indenture and such
Securities and Coupons shall be unaffected thereby. The following shall
be the conditions to application of this subsection (c) of this Section
9.1, unless otherwise provided for in the Board Resolution, Officer's
Certificate or Indenture supplemental hereto establishing such series
of Securities:
(A) The Issuer has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the holders of the Securities
of such series and coupons appertaining thereto, (i) cash in an amount,
or (ii) in the case of any series of Securities the payments on which
may only be made in Dollars, U.S. Government Obligations maturing as to
principal and interest at such times and in such amounts as will insure
the availability of cash or (iii) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay (A) the principal and interest on all Securities of
such series and Coupons appertaining thereof and (B) any mandatory
sinking fund payments on the day on which such payments are due and
payable in accordance with the terms of the Indenture and the
Securities of such series;
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54
(B) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such
deposit;
(C) Such covenant defeasance shall not cause the Trustee to
have a conflicting interest as defined in Section 6.9 and for purposes
of the Trust Indenture Act with respect to any securities of the
Issuer;
(D) Such covenant defeasance shall not result in a breach or
violation of, or constitute a default under any agreement or instrument
to which the Issuer is a party or by which it is bound;
(E) Such covenant defeasance shall not cause any Securities
then listed on any registered national securities exchange under the
Exchange Act to be delisted;
(F) The Issuer shall have delivered to the Trustee an
Officer's Certificate and an opinion of counsel from a nationally
recognized law firm to the effect that the Holders of the Securities of
such series and Coupons appertaining thereto will not recognize income,
gain or loss for United States federal income tax purposes as a result
of such covenant defeasance and will be subject to United States
federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such covenant defeasance had
not occurred;
(G) The Issuer has delivered to the Trustee an Opinion of
Counsel to the effect that after the 91st day following the deposit,
the trust funds will not be subject to avoidance as a preferential
transfer under Section 547(b) of the United States Bankruptcy Code
(except with respect to any Holder that is an "insider" of the Issuer
within the meaning of the United States Bankruptcy Code); and
(H) The Issuer shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the covenant defeasance
contemplated by this provision have been complied with.
Section IX.2 Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 9.4, all moneys deposited with the
Trustee (or other trustee) pursuant to Section 9.1 shall be held in trust and
applied by it to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent), to the Holders of the
particular Securities of such series and of Coupons appertaining thereto for the
payment or redemption of which such moneys have been deposited with the Trustee,
of all sums due and to become due thereon for principal and interest; but such
money need not be segregated from other funds except to the extent required by
law.
Section IX.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect to
Securities of any series, all
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moneys then held by any paying agent under the provisions of this Indenture with
respect to such series of Securities shall, upon demand of the Issuer, be repaid
to it or paid to the Trustee and thereupon such paying agent shall be released
from all further liability with respect to such moneys.
Section IX.4 Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee
or any paying agent for the payment of the principal of or interest on any
Security of any series and of any Coupons attached thereto and not applied but
remaining unclaimed for two years after the date upon which such principal or
interest shall have become due and payable, shall, upon the written request of
the Issuer and unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be repaid to the Issuer by the
Trustee for such series or such paying agent, and the Holder of the Securities
of such series and of any Coupons appertaining thereto shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed
property laws, thereafter look only to the Issuer for any payment which such
Holder may be entitled to collect, and all liability of the Trustee or any
paying agent with respect to such moneys shall thereupon cease; provided, that
the Trustee or such paying agent, before being required to make any such
repayment with respect to moneys deposited with it for any payment (a) in
respect of Registered Securities of any series, shall at the expense of the
Issuer, mail by first-class mail to Holders of such Securities at their
addresses as they shall appear on the Security register, and (b) in respect of
Unregistered Securities of any series, shall at the expense of the Issuer cause
to the published once, in an Authorized Newspaper in the Borough of Manhattan,
The City of New York and once in an Authorized Newspaper in London, notice that
such moneys remain and that, after a date specified therein, which shall not be
less than thirty days from the date of such mailing or publication, any
unclaimed balance of such money then remaining will be repaid to the Issuer.
Section IX.5 Indemnity for U.S. Government of Obligations. The
Issuer shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 9.1 or the principal or interest received in respect of such
obligations.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section X.1 Incorporators, Shareholders, Officers and
Directors of Issuer Exempt from Individual Liability. No recourse under or upon
any obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such, or against any past, present or future shareholder,
officer or director, as such, of the Issuer or of any successor, either directly
or through the Issuer or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities and the
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Coupons, if any, appertaining thereto by the Holders thereof and as part of the
consideration for the issue of the Securities and the Coupons appertaining
thereto.
Section X.2 Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities and Coupons. Nothing in this Indenture, in the
Securities or in the Coupons appertaining thereto, expressed or implied, shall
give or be construed to give to any person, firm or corporation, other than the
parties thereto and their successors and the Holders of the Securities or
Coupons, if any, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities or Coupons, if any.
Section X.3 Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Issuer shall bind its successors and
assigns, whether so expressed or not.
Section X.4 Notices and Demands on Issuer, Trustee and
Holders of Securities and Coupons. Any notice or demand which by any provision
of this Indenture is required or permitted to be given or served by the Trustee
or by the Holders of Securities or Coupons, if any, to or on the Issuer may be
given or served by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided herein) addressed (until another address of the
Issuer is filed by the Issuer with the Trustee) to Global Crossing Ltd., 360 N.
Crescent Drive, Beverly Hills, CA 90210, Attention: Secretary. Any notice,
direction, request or demand by the Issuer or any Holder of Securities or
Coupons, if any, to or upon the Trustee shall be deemed to have been
sufficiently given or served by being deposited postage prepaid, first-class
mail (except as otherwise specifically provided herein) addressed (until another
address of the Trustee is filed by the Trustee with the Issuer) to, United
States Trust Company of New York, 114 West 47th Street, 25th Floor, New York,
New York 10036, Attention: Corporate Trust Administration. Any notices to the
Trustee shall be deemed effective upon receipt thereof by the Trustee.
Where this Indenture provides for notice to Holders of
Registered Securities, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class mail, postage
prepaid, to each Holder entitled thereto, at his last address as it appears in
the Security register.
Where this Indenture provides for notice to holders of
Unregistered Securities, such notice shall be sufficiently given (unless
otherwise expressly provided herein) by giving notice to such Holders (a) by
publication of such notice at least once in an Authorized Newspaper in the
Borough of Manhattan, The City of New York, and at least once in an Authorized
Newspaper in London and (ii) by mailing such notice to the Holders of
Unregistered Securities who have filed their names and addresses with the
Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act at such
addresses as were so furnished to the Trustee.
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In any case where notice to such Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the Issuer
when such notice is required to the given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be reasonably
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
Section X.5 Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the Issuer
to the Trustee to take any action under any of the provisions of this Indenture,
the Issuer shall furnish to the Trustee an Officer's Certificate stating that
all conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (b) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of counsel may be based, insofar as it
relates to factual matters or information with respect to which is in the
possession of the Issuer, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer, unless such counsel
knows that the certificate, statement or opinion or representations with respect
to the matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
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Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion of or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
Section X.6 Payments Due on Saturdays, Sundays and Holidays.
If the date of maturity of interest on or principal of the Securities of any
series or any Coupons appertaining thereto or the date fixed for redemption or
repayment of any such Security or Coupon shall not be a Business Day, then
payment of interest or principal need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made on
the date of maturity or the date fixed for redemption, and no interest shall
accrue for the period after such date.
Section X.7 Conflict of Any Provision of Indenture with Trust
Indenture Act. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with duties imposed by, or with another provision (an
"incorporated provision") included in this Indenture by operation of Sections
310 to 318, inclusive, of the Trust Indenture Act, such imposed duties or
incorporated provision shall control.
Section X.8 NEW YORK LAW TO GOVERN. THIS INDENTURE AND EACH
SECURITY AND COUPON SHALL BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE
OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF SUCH STATE INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW.
Section X.9 Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
Section X.10 Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
Section X.11 Securities in a Composite Currency, Currency Unit
or Foreign Currency. Unless otherwise specified in an Officer's Certificate
delivered pursuant to Section 2.3 of this Indenture with respect to a particular
series of Securities, whenever for purposes of this Indenture any action may be
taken by the Holders of a specified percentage in aggregate principal amount of
Securities of all series or all series affected by a particular action at the
time
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Outstanding and, at such time, there are Outstanding Securities of any series
which are denominated in a coin, currency or currencies other than Dollars
(including, but not limited to, any composite currency, currency units or
Foreign Currency), then the principal amount of Securities of such series which
shall be deemed to be Outstanding for the purpose of taking such action shall be
that amount of Dollars that could be obtained for such amount at the Market
Exchange Rate. For purposes of this Section 10.11, Market Exchange Rate shall
mean the noon Dollar buying rate in The City of New York for cable transfers of
such currency or currencies as published by the Federal Reserve Bank of New York
as of the most recent available date. If such Market Exchange Rate is not so
available for any reason with respect to such currency, the Trustee shall use,
in its sole discretion and without liability on its part, such quotation of the
Federal Reserve Bank of New York as of the most recent available date, or
quotations from one or more major banks in The City of New York or in the
country of issue of the currency in question, or such other quotations as the
Trustee shall deem appropriate. The provisions of this paragraph shall apply in
determining the equivalent principal amount in respect of Securities of a series
denominated in a currency other than Dollars in connection with any action taken
by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding the
Market Exchange Rate or any alternative determination provided for in the
preceding paragraph shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive to the extent permitted by law for all purposes
and irrevocably binding upon the Issuer and all Holders.
Section X.12 Judgment Currency; Consent to Jurisdiction and
Service. (a) The Issuer agrees, to the fullest extent that it may effectively do
so under applicable law, that (a) if for the purpose of obtaining judgment in
any court it is necessary to convert the sum due in respect of the principal of
or interest on the Securities of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the day on which final
unappealable judgment is entered, unless such day is not a New York Banking Day,
then, to the extent permitted by applicable law, the rate of exchange used shall
be the rate at which in accordance with normal banking procedures the Trustee
could purchase in The City of New York the Required Currency with the Judgment
Currency on the New York Banking Day preceding the day on which final
unappealable judgment is entered and (b) its obligations under this Indenture to
make payments in the Required Currency (i) shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered
in accordance with subsection (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in
the Required Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being obtained for any other
sum due under this Indenture. For purposes of the foregoing, "New York Banking
Day" means any day except a Saturday, Sunday
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or a legal holiday in The City of New York or a day on which banking
institutions in The City of New York are authorized or required by law or
executive order to close.
(b) To the fullest extent permitted by applicable law, the
Company hereby 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 or any 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 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, 1633 Broadway, 23
Floor, New York, New York (the "Process Agent") as the authorized agent of the
Company, 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 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.
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. To the extent the Company has or hereafter may acquire any immunity
from jurisdiction of any court or from any legal process (whether through
service of notice, 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.
ARTICLE XI
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section XI.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are redeemable
before their maturity or to any sinking fund for the retirement of Securities of
a series except as otherwise specified as contemplated by Section 2.3 for
Securities of such series.
Section XI.2 Notice of Redemption; Partial Redemptions.
Notice of redemption to the Holders of Registered Securities of any series to be
redeemed as a whole or in part at the option of the Issuer shall be given by
mailing notice of such redemption by first class
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mail, postage prepaid, at least 30 days and not more than 60 days prior to the
date fixed for redemption to such Holders of Securities of such series at their
last addresses as they shall appear upon the registry books. Notice of
redemption to the Holders of Unregistered Securities to be redeemed as a whole
or in part, who have filed their names and addresses with the Trustee pursuant
to Section 313(c)(2) of the Trust Indenture Act shall be given by mailing notice
of such redemption, by first class mail, postage prepaid, at least 30 days and
not more than 60 prior to the date fixed for redemption, to such Holders at such
addresses as were so furnished to the Trustee (and, in the case of any such
notice given by the Issuer, the Trustee shall make such information available to
the Issuer for such purpose). Notice of redemption to all other Holders of
Unregistered Securities shall be published in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and in an Authorized Newspaper in
London, in each case, once in each of three successive calendar weeks, the first
publication to be not less than 30 nor more than 60 days prior to the date fixed
for redemption. Any notice which is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the notice
to the Holder of any Security of a series designated for redemption as a whole
or in part shall not affect the validity of the proceedings for the redemption
of such Security of such series.
The notice of redemption to each such Registered Holder shall
specify the principal amount of each Security of such series held by such
Registered Holder to be redeemed, the date fixed for redemption, the redemption
price, the place or places of payment, that payment will be made upon
presentation and surrender of such Securities and, in the case of Securities
with Coupons attached thereto, of all Coupons appertaining thereto maturing
after the date fixed for redemption, that such redemption is pursuant to the
mandatory or optional sinking fund, or both, if such be the case, that interest
accrued to the date fixed for redemption will be paid as specified in such
notice and that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue. In case any Security of a series is
to be redeemed in part only, the notice of redemption to Registered Holders of
Securities of the series shall state the portion of the principal amount thereof
to be redeemed and shall state that on and after the date fixed for redemption,
upon surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Issuer shall be given by the Issuer or, at the
Issuer's request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of
redemption given as provided in this Section, the Issuer will deposit with the
Trustee or with one or more paying agents (or, if the Issuer is acting as its
own paying agent, set aside, segregate and hold in trust as provided in Section
3.4) an amount of money sufficient to redeem on the redemption date all the
Securities of such series so called for redemption at the appropriate redemption
price, together with accrued interest to the date fixed for redemption. The
Issuer will deliver to the Trustee at least 70 days prior to the date fixed for
redemption, or such shorter period as shall be acceptable to the Trustee, an
Officer's Certificate stating the aggregate principal amount of Securities to be
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redeemed. In case of a redemption at the election of the Issuer prior to the
expiration of any restriction on such redemption, the Issuer shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders pursuant
to this Section, an Officer's Certificate stating that such restriction has been
complied with.
If less than all the Securities of a series are to be
redeemed, the Trustee shall select, in such manner as it shall deemed
appropriate and fair, in its sole discretion, Securities of such series to be
redeemed in whole or in part. Securities may be redeemed in part in multiples
equal to the minimum authorized denomination for Securities of such series or
any multiple thereof. The Trustee shall promptly notify the Issuer in writing of
the Securities of such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities of
any series shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security which has
been or is to be redeemed.
Section XI.3 Payment of Securities Called for Redemption. If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for redemption, and on
and after said date (unless the Issuer shall default in the payment of such
Securities at the redemption price, together with interest accrued to said date)
interest on the Securities or portions of Securities so called for redemption
shall cease to accrue, and the unmatured Coupons, if any, appertaining thereto
shall be void, and, except as provided in Sections 6.5 and 9.4, such Securities
shall cease from and after the date fixed for redemption to be entitled to any
benefit or security under this Indenture, and the Holders thereof shall have no
right in respect of such Securities except the right to receive the redemption
price thereof and unpaid interest to the date fixed for redemption. On
presentation and surrender of such Securities at a place of payment specified in
said notice, together with all Coupons, if any, appertaining thereto maturing
after the date fixed for redemption, said Securities or the specified portions
thereof shall be paid and redeemed by the Issuer at the applicable redemption
price, together with interest accrued thereon to the date fixed for redemption;
provided, that payment of interest becoming due on or prior to the date fixed
for redemption shall be payable in the case of Securities with Coupons attached
thereto, to the Holders of the Coupons for such interest upon surrender thereof,
and in the case of Registered Securities, to the Holder of such Registered
Securities registered as such on the relevant record date, subject to the terms
and provisions of Section 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered
for redemption and is not accompanied by all appurtenant Coupons maturing after
the date fixed for redemption, the surrender of such missing Coupon or Coupons
may be waived by the Issuer and the Trustee, if
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there be furnished to each of them such security or indemnity as they may
require to save each of them harmless.
Upon presentation of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and deliver to or on the
order of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
Section XI.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officer's Certificate delivered to the Trustee at least 40 days
prior to the last date on which notice of redemption may be given as being owned
of record and beneficially by, and not pledged or hypothecated by, either (a)
the Issuer or (b) an entity specifically identified in such written statement as
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer.
Section XI.5 Mandatory and Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the terms of the
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of the Securities of any series is herein referred to as an "optional
sinking fund payment." The date on which a sinking fund payment is to be made is
herein referred to as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash, the Issuer may at
its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price specified in
such Securities.
On or before the 60th day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee an Officer's
Certificate (which need not contain the statements required by Section 10.5) (a)
specifying the portion of the mandatory sinking fund payment to be satisfied by
payment of cash and the portion to be satisfied by credit of Securities of such
series and the basis for such credit, (b) stating that none of the Securities of
such series has theretofore been so credited, (c) stating that no defaults in
the payment of interest or Events of Default with respect to such series have
occurred (which have not been waived or cured) and are continuing and (d)
stating whether or not the Issuer intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so, specifying
the amount of
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such optional sinking fund payment which the Issuer intends to pay on or before
the next succeeding sinking fund payment date. Any Securities of such series to
be credited and required to be delivered to the Trustee in order for the Issuer
to be entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to Section
2.10 to the Trustee with such Officer's Certificate (or reasonably promptly
thereafter if acceptable to the Trustee). Such Officer's Certificate shall be
irrevocable and upon its receipt by the Trustee, the Issuer shall become
unconditionally obligated to make all the cash payments or payments therein
referred to, if any, on or before the next succeeding sinking fund payment date.
Failure of the Issuer, on or before any such 60th day, to deliver such Officer's
Certificate and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
series in respect thereof and (ii) that the Issuer will make no optional sinking
fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or the equivalent thereof in any composite currency,
currency units or Foreign Currency) or a lesser sum in Dollars (or the
equivalent thereof in any composite currency, currency units or Foreign
Currency) if the Issuer shall so request with respect to the Securities of any
particular series, such cash shall be applied on the next succeeding sinking
fund payment date to the redemption of Securities of such series at the sinking
fund redemption price together with accrued interest to the date fixed for
redemption. If such amount shall be $50,000 (or the equivalent thereof in any
composite currency, currency units or Foreign Currency) or less and the Issuer
makes no such request then it shall be carried over until a sum in excess of
$50,000 (or the equivalent thereof in any composite currency, currency units or
Foreign Currency) is available. The Trustee shall select, in the manner provided
in Section 11.2, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such series to absorb said cash, as nearly as
may be, and shall (if requested in writing by the Issuer) inform the Issuer of
the serial numbers of the Securities of such series (or portions thereof) so
selected. Securities shall be excluded from eligibility for redemption under
this Section if they are identified by registration and certificate number in an
Officer's Certificate delivered to the Trustee at least 60 days prior to the
sinking fund payment date as being owned of record and beneficially by, and not
pledged or hypothecated by, either (a) the Issuer or (b) an entity specifically
identified in such Officer's Certificate as directly or indirectly controlling
or controlled by or under direct or indirect common control with the Issuer. The
Trustee, in the name and at the expense of the Issuer (or the Issuer, if it
shall so request the Trustee in writing) shall cause notice of redemption of the
Securities of such series to be given in substantially the manner provided in
Section 11.2 (and with the effect provided in Section 11.3) for the redemption
of Securities of such series in part at the option of the Issuer. The amount of
any sinking fund payments not so applied or allocated to the redemption of
Securities of such series shall be added to the next cash sinking fund payment
for such series and, together with such payment, shall be applied in accordance
with the
<PAGE>
65
provisions of this Section. Any and all sinking fund moneys held on the stated
maturity date of the Securities of any particular series (or earlier, if such
maturity is accelerated), which are not held for the payment or redemption of
particular Securities of such series shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the
principal of, and interest on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall
pay to the Trustee in cash or shall otherwise provide for the payment of all
interest accrued to the date fixed for redemption on Securities to be redeemed
on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or give any notice of redemption
of Securities for such series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of any
Event of Default except that, where the giving of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall redeem or cause
to be redeemed such Securities, provided that it shall have received from the
Issuer a sum sufficient for such redemption. Except as aforesaid, any moneys in
the sinking fund for such series at the time when any such default or Event of
Default shall occur, and any moneys thereafter paid into the sinking fund,
shall, during the continuance of such default or Event of Default be deemed to
have been collected under Article Five and held for the payment of all such
Securities. In case such Event of Default shall have been waived as provided in
Section 5.10 or the default cured on or before the sixtieth day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this Section
to the redemption of such Securities.
<PAGE>
66
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested as of the date first written above.
GLOBAL CROSSING LTD.
By:__________________________________
Name:
Title:
Attest:
By:____________________________
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By:__________________________________
Name:
Title:
Attest:
By:____________________________
<PAGE>
Exhibit 4.7
Schedule to the Bye-Laws
of Global Crossing Ltd.
CERTIFICATE OF DESIGNATIONS
OF
[ ]% [CUMULATIVE][CONVERTIBLE] PREFERRED STOCK
The terms of the authorized [ ]% [Cumulative]
[Convertible] Preferred Stock (the "Preferred Stock") of Global Crossing Ltd., a
company incorporated under the laws of Bermuda (the "Company"), shall be as set
forth below in this Schedule to the Bye-Laws of the Company (this "Schedule").
(a) Designation. (i) There are hereby authorized [ ]
-----------
shares of Preferred Stock as designated by the Board of Directors of the
Company. Each share of Preferred Stock will have a liquidation preference of $[
] (the "Liquidation Preference").
(ii) All shares of Preferred Stock redeemed, purchased,
exchanged, converted or otherwise acquired by the Company shall be retired and
canceled and, upon the taking of any action required by applicable law, shall be
restored to the status of authorized but unissued shares of preferred stock of
the Company, without designation as to series, and may thereafter be reissued.
(b) Currency. All shares of Preferred Stock shall be
--------
denominated in United States currency, and all payments and distributions
thereon or with respect thereto shall be made in United States currency. All
references herein to "$" or "dollars" refer to United States currency.
(c) Ranking. The Preferred Stock shall, with respect to
-------
dividend rights and rights upon liquidation, winding up or dissolution, rank
[junior to][on a parity with] (i) each other class or series of capital stock of
the Company, other than (A) the Common Stock of the Company and any other class
or series of capital stock of the Company which by its terms ranks junior to the
Preferred Stock, as to which the Preferred Stock shall rank prior and (B) any
other class or series of capital stock of the Company which by its terms ranks
on a parity with the Preferred Stock, as to which the Preferred Stock shall rank
on a parity or (ii) other equity interests in the Company, in each case,
including, without limitation, warrants, rights, calls or options exercisable
for or convertible into such capital stock or equity interests, except as
provided in the last sentence of this paragraph (c). All equity securities of
the Company to which the Preferred Stock ranks prior (whether with respect to
dividends or upon liquidation, winding up, dissolution or otherwise), including
the Common Stock of the Company, are collectively referred to herein as the
"Junior Stock". All equity securities of the Company to which the Preferred
Stock ranks on a parity (whether with respect to dividends or upon
<PAGE>
2
liquidation, winding up, dissolution or otherwise) are collectively referred to
herein as the "Parity Stock". All equity securities of the Company to which the
Preferred Stock ranks junior (whether with respect to dividends or upon
liquidation, winding up, dissolution or otherwise) are collectively referred to
herein as the "Senior Stock". The respective definitions of Junior Stock, Parity
Stock and Senior Stock shall also include any warrants, rights, calls or options
exercisable for or convertible into any Junior Stock, Parity Stock or Senior
Stock, as the case may be.
(d) Dividends. (i) The holders of shares of Preferred
---------
stock shall be entitled to receive, when, as and if declared by the Board of
Directors of the Company out of funds legally available therefor, dividends on
the shares of Preferred Stock, cumulative from the first date of issuance of any
such shares (the "Initial Issuance Date"), at a rate per annum of [ ]% of the
Liquidation Preference per share, payable in cash, subject to paragraph (d)(vi).
Dividends on the shares of Preferred Stock shall be payable quarterly in equal
amounts (subject to paragraph (d)(v) hereunder with respect to shorter periods,
including the first such period with respect to newly issued shares of Preferred
Stock) in arrears on [ ], [ ], [ ] and [ ] of each year, or if any such date is
not a Business Day, on the next succeeding Business Day (each such date, a
"Dividend Payment Date", and each such quarterly period, a "Dividend Period"),
in preference to and in priority over dividends on any Junior Stock. Such
dividends shall be paid to the holders of record of the shares of Preferred
Stock as they appear on the applicable Record Date. As used herein, the term
"Record Date" means, with respect to the dividends payable on [ ], [ ], [ ] and
[ ] of each year, [ ], [ ], [ ] and [ ] of each year, respectively, or such
other record date, not more than 60 days and not less than 10 days preceding the
applicable Dividend Payment Date, as shall be fixed by the Board of Directors of
the Company. Dividends on the shares of Preferred Stock shall be fully
cumulative and shall accrue (whether or not declared and whether or not there
are funds of the Company legally available for the payment of dividends) from
the Issuance Date (or the last Dividend Payment Date for which dividends were
paid, as the case may be) based on a 360-day year comprised of twelve 30-day
months. Accrued and unpaid dividends for any past Dividend Period and dividends
in connection with any optional redemption may be declared and paid at any time,
without reference to any Dividend Payment Date, to holders of record on such
date, not more than 45 days prior to the payment thereof, as may be fixed by the
Board of Directors of the Company.
(ii) No dividend shall be declared or paid or set apart
for payment or other distribution declared or made, whether in cash,
obligations or shares of capital stock of the Company or other property,
directly or indirectly, upon any shares of Junior Stock or Parity Stock, nor
shall any shares of Junior Stock or Parity Stock be redeemed, repurchased or
otherwise acquired for consideration by the Company through a sinking fund or
otherwise, unless all accrued and unpaid dividends through the most recent
Dividend Payment Date (whether or not such dividends have been declared and
whether or not there are funds of the Company legally available for the payment
of dividends) on the shares of Preferred Stock and any Parity Stock have been or
contemporaneously are declared and paid in full; provided, however, that,
-------- -------
notwithstanding any provisions in this subparagraph (ii) to the
<PAGE>
3
contrary, the Company shall be entitled to (a) declare and pay dividends on
shares of Junior Stock payable solely in shares of Junior Stock and on shares of
Parity Stock payable solely in shares of Parity Stock or Junior Stock, or in
each case by an increase in the liquidation preference of the Junior Stock or
Parity Stock and (b) redeem, repurchase or otherwise acquire Junior Stock or
Parity Stock in exchange for consideration consisting of Parity Stock or Junior
Stock, in the case of Parity Stock, or of Junior Stock, in the case of Junior
Stock. When dividends are not paid in full, as aforesaid, upon the shares of
Preferred Stock, all dividends declared on the Preferred Stock and any other
Parity Stock shall be declared and paid either (A) pro rata so that the amount
of dividends so declared on the shares of Preferred Stock and each such other
class or series of Parity Stock shall in all cases bear to each other the same
ratio as accrued dividends on the shares of Preferred Stock and such class or
series of Parity Stock bear to each other or (B) on another basis that is at
least as favorable to the holders of the Preferred Stock entitled to receive
such dividends.
(iii) Any dividend payment made on the Preferred Stock
shall first be credited against the dividends accrued with respect to
the earliest Dividend Period for which dividends have not been paid.
(iv) All dividends paid with respect to shares of
Preferred Stock pursuant to this paragraph (d) shall be paid pro rata to the
holders entitled thereto.
(v) Dividends (or cash amounts equal to accrued and
unpaid dividends) payable on the Preferred Stock for any period shorter than six
months shall be computed on the basis of the actual number of days elapsed (in a
30-day month) since the applicable Dividend Payment Date or from the Issuance
Date with respect to newly issued shares, as applicable, and based on a 360-day
year of twelve 30-day months. No interest shall accrue or be payable in respect
of unpaid dividends.
(vi) The Company shall have the option to pay all or any
part of a dividend by delivering shares of Common Stock, par value $0.01 per
share, of the Company (the "Common Stock"), to the transfer agent for the
Preferred Stock (the "Transfer Agent"). In such case, the Company shall be
obligated to deliver to the Transfer Agent a number of shares of Common Stock
which, when resold by the Transfer Agent, shall result in net cash proceeds
sufficient to pay the applicable dividend in cash to the holders of shares of
Preferred Stock. If the proceeds of any resale of shares of Common Stock do not
result in sufficient cash proceeds to pay a dividend, the Company shall promptly
provide cash to the Transfer Agent in an amount equal to the difference between
the amount of the applicable dividend and the proceeds of such sale. All shares
of Common Stock that the Company may deliver to the Transfer Agent as provided
in this subparagraph (vi) shall be registered under the Securities Act of 1933,
as amended.
(e) Liquidation Preference. (i) Upon any voluntary or
-----------------------
involuntary liquidation, dissolution or winding up of the Company or a reduction
or decrease in the Company's capital stock resulting in a distribution of assets
to the holders of any class or series of the Company's capital
<PAGE>
4
stock, each holder of shares of Preferred Stock shall be entitled to payment out
of the assets of the Company available for distribution of an amount equal to
the then effective Liquidation Preference per share of Preferred Stock held by
such holder, plus all accumulated and unpaid dividends therein to the date of
such liquidation, dissolution, winding up or reduction or decrease in capital
stock, before any distribution is made on any Junior Stock, including, without
limitation, Common Stock of the Company. After payment in full of the then
effective Liquidation Preference and all accumulated and unpaid dividends to
which holders of shares of Preferred Stock are entitled, such holders shall not
be entitled to any further participation in any distribution of assets of the
Company. If, upon any voluntary or involuntary liquidation, dissolution or
winding up of the Company or a reduction or decrease in the Company's capital
stock, the amounts payable with respect to shares of Preferred Stock and all
other Parity Stock are not paid in full, the holders of shares of Preferred
Stock and the holders of the Parity Stock shall share equally and ratably in any
distribution of assets of the Company in proportion to the full liquidation
preference and all accumulated and unpaid dividends to which each such holder is
entitled.
(ii) Neither the voluntary sale, conveyance, exchange or
transfer (for cash, shares of stock, securities or other consideration) of all
or substantially all of the property or assets of the Company nor the
consolidation, merger or amalgamation of the Company with or into any
corporation or the consolidation, merger or amalgamation of any corporation with
or into the Company shall be deemed to be a voluntary or involuntary
liquidation, dissolution or winding up of the Company or a reduction or decrease
in the capital stock of the Company.
(iii) No funds are required to be set aside to protect
the Liquidation Preference of the shares of Preferred Stock, although such
Liquidation Preference will be substantially in excess of the par value of the
shares of the Preferred Stock.
(f) Redemption. Shares of Preferred Stock shall be
----------
redeemable by the Company as provided below.
(i) [intentionally left blank]/1/
- -------------------------------------
1 Any additional redemption provisions applicable to any
series of Preferred Stock shall be set forth in the
Certificate of Designations of such series.
<PAGE>
5
(ii) Optional Tax Redemption. The shares of Preferred
------------------------
Stock shall be subject to redemption at the option of the Company or a successor
corporation at any time, in whole or in part, at a Redemption Price equal to
100% of the then effective Liquidation Preference thereof, plus all accumulated
and unpaid dividends thereon to the redemption date if, as a result of any
change in or amendment to any laws, regulations or rulings promulgated
thereunder of (A) Bermuda or any political subdivision or governmental authority
thereof or therein having the power to tax, (B) any jurisdiction, other than the
United States, from or through which payment on the shares of Preferred Stock is
made by the Company or a successor corporation or its paying agent in its
capacity as such or any political subdivision or governmental authority thereof
or therein having the power to tax or (C) any other jurisdiction, other than the
United States, in which the Company or a successor corporation is organized or
any political subdivision or governmental authority thereof or therein having
the power to tax or any change in the official application or interpretation of
such laws, regulations or rulings or any change in the official application or
interpretation of, or any execution of or amendment to, any treaty or treaties
affecting taxation to which such jurisdiction (or such political subdivision or
taxing authority) is party (each, a "Change in Tax Law"), which becomes
effective on or after the date hereof, the Company or a successor corporation is
or would be required on the next succeeding Dividend Payment Date to pay
Additional Amounts (as defined below) with respect to the shares of Preferred
Stock, and the payment of such Additional Amounts cannot be avoided by the use
of any reasonable measures available to the Company or a successor corporation.
In addition, the shares of Preferred Stock shall be
subject to redemption at the option of the Company at any time, in whole or
in part, at a Redemption Price equal to 100% of the then effective Liquidation
Preference thereof, plus all accumulated and unpaid dividends thereon to the
redemption date, if the person formed by a consolidation, merger or amalgamation
of the Company or into which the Company is consolidated, merged or amalgamated
or to which the Company conveys, transfers or leases its properties and assets
substantially as an entirety is required, as a consequence of such
consolidation, merger, amalgamation, conveyance, transfer or lease and as a
consequence of a Change in Tax Law occurring after the date of such
consolidation, merger, amalgamation, conveyance, transfer or lease, to pay
Additional Amounts in respect of any tax, assessment or governmental charge
imposed on any holder of shares of Preferred Stock.
(iii) Payment of Additional Amounts. If any deduction or
-----------------------------
withholding for any present or future taxes, assessments or other governmental
charges of (x) Bermuda or any political subdivision or governmental authority
thereof or therein having power to tax, (y) any jurisdiction, other than the
United States, from or through which payment on the shares of Preferred Stock is
made by the Company or a successor corporation, or its paying agent in its
capacity as such or any political subdivision or governmental authority thereof
or therein having the power to tax or (z) any other jurisdiction, other than the
United States, in which the Company or a successor corporation is organized, or
any political subdivision or governmental authority thereof or therein having
the power to tax shall at any time be required by such jurisdiction (or any such
political subdivision or taxing authority) in respect of any amounts to be paid
by the Company or a successor corporation with
<PAGE>
6
respect to the shares of Preferred Stock, the Company or a successor corporation
will pay to each holder of shares of Preferred Stock as additional dividends,
such additional amounts (collectively, the "Additional Amounts") as may be
necessary in order that the net amounts paid to such holder of such shares of
Preferred Stock who, with respect to any such tax, assessment or other
governmental charge, is not resident in, or a citizen of, such jurisdiction,
after such deduction or withholding, shall be not less than the amount specified
in such shares of Preferred Stock to which such holder is entitled; provided,
--------
however, that the Company or a successor corporation shall not be required to
- -------
make any payment of Additional Amounts for or on account of:
(A) any tax, assessment or other governmental charge
that would not have been imposed but for (a) the existence of any
present or former connection between such holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of, or
possessor of a power over, such holder, if such holder is an estate,
trust, partnership, limited liability company or corporation) and
the taxing jurisdiction or any political subdivision or territory or
possession thereof or area subject to its jurisdiction, including,
without limitation, such holder (or such fiduciary, settlor,
beneficiary, member, shareholder or possessor) being or having been
a citizen or resident thereof or being or having been present or
engaged in a trade or business therein or having or having had a
permanent establishment therein, (b) the presentation of shares of
Preferred Stock (where presentation is required) for payment on a
date more than 30 days after (x) the date on which such payment
became due and payable or (y) the date on which payment thereof is
duly provided for, whichever occurs later, or (c) the presentation
of shares of Preferred Stock for payment in Bermuda or any political
subdivision thereof or therein, unless such shares of Preferred
Stock could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sales, transfer,
personal property or similar tax, assessment or other governmental
charge;
(C) any tax, assessment or other governmental charge
that is payable otherwise than by withholding from payment of the
Liquidation Preference of or any dividends on the shares of
Preferred Stock;
(D) any tax, assessment or other governmental charge
that is imposed or withheld by reason of the failure by the holder
or the beneficial owner of the shares of Preferred Stock to comply
with a request of the Company addressed to the holder (a) to provide
information, documents or other evidence concerning the nationality,
residence or identity of the holder or such beneficial owner or (b)
to make and deliver any declaration or other similar claim (other
than a claim for refund of a tax, assessment or other governmental
charge withheld by the Company) or satisfy any information or
reporting requirements, which, in the case of (a) or (b), is
required or imposed by a statute, treaty, regulation or
administrative practice of the taxing jurisdiction as a precondition
to exemption from all or part of such tax, assessment or
<PAGE>
7
other governmental charge; or
(E) any combination of items (A), (B), (C) and (D)
above;
nor shall Additional Amounts be paid with respect to any payment of the
Liquidation Preference of or dividends on any shares of Preferred Stock to any
holder who is a fiduciary or partnership or limited liability company or other
beneficial owner of shares of Preferred Stock to the extent such payment would
be required by the laws of (x) Bermuda or any political subdivision or
governmental authority thereof or therein having the power to tax, (y) any
jurisdiction, other than the United States, from or through which payment on the
shares of Preferred Stock is made by the Company or a successor corporation, or
its paying agent in its capacity as such or any political subdivision or
governmental authority thereof or therein having the power to tax or (z) any
other jurisdiction, other than the United States, in which the Company or a
successor corporation is organized, or any political subdivision or governmental
authority thereof or therein having the power to tax to be included in the
income for tax purposes of a beneficiary or settlor with respect to such
fiduciary or a member of such partnership, limited liability company or
beneficial owner who would not have been entitled to such Additional Amounts had
it been the holder of such shares of Preferred Stock.
The Company shall provide the Transfer Agent with the
official acknowledgment of the relevant taxing authority (or, if such
acknowledgment is not available, a certified copy thereof) evidencing the
payment of the withholding taxes, if any, by the Company. Copies of such
documentation shall be made available to the holders of the shares of Preferred
Stock or the Transfer Agent, as applicable, upon request therefor.
All references herein to dividends on the shares of
Preferred Stock shall include any Additional Amounts payable by the Company
in respect of such shares of Preferred Stock.
(iv) Whenever shares of Preferred Stock are to be
redeemed pursuant to this paragraph (f), a notice of such redemption shall
be mailed, addressed to each holder, by overnight mail, postage prepaid, or
delivered to each holder of the shares to be redeemed at such holder's address
as the same appears on the stock transfer books of the company. Such notice
shall be mailed to be delivered not less than 30 days and nor more than 60 days
prior to the date fixed for redemption. Each such notice shall state: (A) the
date fixed for redemption; (B) the number of shares of Preferred Stock to be
redeemed; (C) the Redemption Price and the amount of dividends accrued and
unpaid through the date fixed for redemption; (D) the place or places where such
shares of Preferred Stock are to be surrendered for payment of the Redemption
Price; and (E) that dividends on the shares to be redeemed will cease to accrue
on such date fixed for redemption unless the Company shall default in the
payment of the Redemption Price. If fewer than all shares of Preferred Stock
held by a holder are to be redeemed, the notice mailed to such holder shall
specify the number of shares to be redeemed from such holder.
<PAGE>
8
Notice having been given as provided in the preceding
paragraph, and if on or before the redemption date specified in such
notice, an amount in cash sufficient to redeem in full on the redemption date
and at the applicable Redemption Price (together with an amount equal to accrued
and unpaid dividends thereon (whether or not declared and whether or not there
are funds of the Company legally available for the payment of dividends) to such
redemption date) and all shares of Preferred Stock called for redemption shall
have been set apart and deposited in trust so as to be available for such
purpose and only for such purpose, or shall have been paid to the holders
thereof then effective as of the close of business on such redemption date, and
unless there shall be a subsequent default in the payment of the Redemption
Price plus accrued and unpaid dividends, the shares of Preferred Stock so called
for redemption shall cease to accrue dividends, and such shares shall no longer
be deemed to be outstanding and shall have the status of authorized but unissued
shares of preferred stock of the Company, undesignated as to series, and all
rights of the holders thereof, as such, as shareholders of the Company (except
the right to receive from the Company the Redemption Price and an amount equal
to any accrued and unpaid dividends (whether or not declared and whether or not
there are funds of the Company legally available for the payment of dividends)
to such redemption date) shall cease. Upon surrender in accordance with such
notice of the certificates for any shares so redeemed (properly endorsed or
assigned for transfer, if the notice shall so state), such shares shall be
redeemed by the Company at the Redemption Price as set forth above. In case
fewer than all of the shares represented by any such certificate are redeemed, a
new certificate of like terms and having the same date of original issuance
shall be issued representing the unredeemed shares without cost to the holder
thereof.
(v) In the event that fewer than all of the shares of
Preferred Stock are to be redeemed pursuant to this paragraph (f), the Company
shall call for redemption shares of Preferred Stock pro rata among the holders,
based on the number of shares of Preferred Stock held by each holder (with
adjustments to avoid fractional shares), except that the Company may redeem all
of the shares of Preferred Stock held by any holders of fewer than 100 shares of
Preferred Stock (or all the shares of Preferred Stock held by holders who would
hold less than 100 shares of Preferred Stock as a result of such redemption).
Any redemption for which shares are called for redemption on a pro rata basis
shall comply with this subparagraph (v).
(g) Voting Rights. Except as required by applicable
-------------
Bermuda law and as may otherwise be provided herein or in any amendment hereto,
the holders of shares of Preferred Stock shall not be entitled to any voting
rights as shareholders of the Company except as follows:
(i) The affirmative vote of the holders of at least a
majority of the outstanding shares of Preferred Stock, voting with
holders of shares of all other series of preferred stock affected in
the same way as a single class, in person or by proxy, at a special
or annual meeting called for the purpose, or by written consent in
lieu of a meeting, shall be required to amend, repeal or change any
provisions of this Schedule in any manner which would adversely
affect, alter or change the powers, preferences or special rights of
the Preferred Stock and any such
<PAGE>
9
securities affected in the same way; provided, however, that the
creation, authorization or issuance of any other class or series of
capital stock or the increase or decrease in the amount of
authorized capital stock of any such class or series or of the
Preferred Stock, or any increase, decrease or change in the par
value of any class or series of capital stock (including the
Preferred Stock), shall not require the consent of the holders of
the Preferred Stock and shall not be deemed to affect adversely,
alter or change the powers, preferences and special rights of the
shares of Preferred Stock. With respect to any matter on which the
holders are entitled to vote as a separate class, each share of
Preferred Stock shall be entitled to one vote.
(ii) If at any time the equivalent of six quarterly
dividends payable on the shares of Preferred Stock are accrued and
unpaid (whether or not consecutive and whether or not declared), the
holders of all outstanding shares of Preferred Stock and any Parity
Stock or Senior Stock having similar voting rights then exercisable,
voting separately as a single class without regard to series, shall
be entitled to elect at the next annual meeting of the shareholders
of the Company two directors to serve until all dividends
accumulated and unpaid on any such voting shares have been paid or
declared and funds set aside to provide for payment in full. In
exercising any such vote, each outstanding share of Preferred Stock
shall be entitled to one vote, excluding shares held by the Company
or any entity controlled by the Company, which shares shall have no
vote.
(h) Conversion. (i) Each share of Preferred Stock shall
----------
be convertible at any time and from time to time at the option of the holder
thereof into fully paid and nonassessable shares of Common Stock. The number of
shares of Common Stock deliverable upon conversion of a share of Preferred
Stock, adjusted as hereinafter provided, is referred to herein as the
"Conversion Ratio". The Conversion Ratio as of the Issuance Date shall be [ ]and
shall equal the ratio the nominator of which shall be the Liquidation Preference
and the denominator of which shall be the Conversion Price. The Conversion Price
shall be $[ ], subject to adjustment from time to time as provided in paragraph
(i).
(ii) Conversion of shares of Preferred Stock may be
effected by any holder upon the surrender to the Company at the principal office
of the Company or at the office of the Transfer Agent, as may be designated by
the Board of Directors of the Company, of the certificate or certificates for
such shares of Preferred Stock to be converted accompanied by a written notice
stating that such holder elects to convert all or a specified whole number of
such shares in accordance with the provisions of this paragraph (h) and
specifying the name or names in which such holder wishes the certificate or
certificates for shares of Common Stock to be issued. In case such notice shall
specify a name or names other than that of such holder, such notice shall be
accompanied by payment of all transfer taxes payable upon the issuance of shares
of Common Stock in such name or names. Other than such taxes, the Company shall
pay any documentary, stamp or similar issue or transfer taxes that may be
payable in respect of any issuance or delivery of shares of Common Stock upon
conversion of shares of Preferred Stock pursuant hereto. As promptly as
practicable after the
<PAGE>
10
surrender of such certificate or certificates and the receipt of such notice
relating thereto and, if applicable, payment of all required transfer taxes (or
the demonstration to the satisfaction of the Company that such taxes have been
paid), the Company shall deliver or cause to be delivered (x) certificates
representing the number of validly issued, fully paid and nonassessable full
shares of Common Stock to which the holder (or the holder's transferee) of
shares of Preferred Stock being converted shall be entitled and (y) if less than
the full number of shares of Preferred Stock evidenced by the surrendered
certificate or certificates is being converted, a new certificate or
certificates, of like tenor, for the number of shares evidenced by such
surrendered certificate or certificates less the number of shares being
converted. Such conversion shall be deemed to have been made at the close of
business on the date of giving such notice and of such surrender of the
certificate or certificates representing the shares of Preferred Stock to be
converted so that the rights of the holder thereof as to the shares being
converted shall cease except for the right to receive shares of Common Stock and
accrued and unpaid dividends with respect to the shares of Preferred Stock being
converted, in each case in accordance herewith, and the person entitled to
receive the shares of Common Stock shall be treated for all purposes as having
become the record holder of such shares of Common Stock at such time.
(iii) If a holder of shares of Preferred Stock exercises
conversion rights under paragraph (h)(i), upon delivery of the shares
for conversion, such shares shall cease to accrue dividends pursuant to
paragraph (d) as of the end of the day immediately preceding the date of such
delivery, but such shares shall continue to be entitled to receive all accrued
dividends which such holder is entitled to receive through the last preceding
Dividend Payment Date unless such conversion follows a call for redemption by
the Company in which case pro rata dividends shall also be payable through the
date immediately preceding such delivery, in each case as if such holder
continued to hold such shares of Preferred Stock. Any such accrued and unpaid
dividends shall be payable by the Company as and when such dividends are paid to
any remaining holders or, if none, on the date which would have been the next
succeeding Dividend Payment Date had there been remaining holders or such later
time at which the Company believes it has adequate available capital under
applicable law to make such a payment. Notwithstanding the foregoing, shares of
Preferred Stock surrendered for conversion (other than after notice of
redemption has been given with respect to such shares) after the close of
business on any record date for the payment of dividends declared and prior to
the opening of business on the Dividend Payment Date relating thereto must be
accompanied by a payment in cash of an amount equal to the dividend declared in
respect of such shares.
(iv) In case any shares of Preferred Stock are to be
redeemed pursuant to paragraph (f), such right of conversion shall cease
and terminate, as to the shares of Preferred Stock to be redeemed, at the close
of business on the Business Day immediately preceding the date fixed for
redemption unless the Company shall default in the payment of the Redemption
Price therefor, as provided herein.
[(v) Notwithstanding anything herein to the contrary,
but subject to the provisions of paragraph (h)(iii) and to paragraph (i), and
except as provided for in the following sentence, the
<PAGE>
11
Company shall make no payment or adjustment to any holder of shares of Preferred
Stock surrendered for conversion in respect of any accrued and unpaid dividends
on the shares of Preferred Stock surrendered for conversion. If the Company
redeems the Preferred Stock between [ ] through and including [ ] any holder of
shares of Preferred Stock, electing to convert the shares of Preferred Stock
between [ ] through and including [ ], shall be entitled to receive dividends
accrued between [ ] and [ ] on the converted shares of Preferred Stock.]
(vi) In connection with the conversion of any shares of
Preferred Stock, no fractions of shares of Common Stock shall be issued, but in
lieu thereof, the Company shall pay a cash adjustment in respect of such
fractional interest in an amount equal to (x) such fractional interest
multiplied by the Liquidation Preference per share, divided by (y) the
Conversion Price. If more than one share of Preferred Stock shall be surrendered
for conversion by the same holder at the same time, the number of full shares of
Common Stock issuable on conversion thereof shall be computed on the basis of
the total number of shares of Preferred Stock so surrendered.
(vii) The Company shall at all times reserve and keep
available, free from preemptive rights, for issuance upon the conversion
of shares of Preferred Stock such number of its authorized but unissued shares
of Common Stock as will from time to time be sufficient to permit the conversion
of all outstanding shares of Common Stock if necessary to permit the conversion
of all outstanding shares of Preferred Stock. Prior to the delivery of any
securities which the Company shall be obligated to deliver upon conversion of
the Preferred Stock, the Company shall comply with all applicable federal and
state laws and regulations which require action to be taken by the Company. All
shares of Common Stock delivered upon conversion of the Preferred Stock will
upon delivery be duly and validly issued and fully paid and nonassessable, free
of all liens and charges and not subject to any preemptive rights.
(i)(i) The Conversion Price shall be subject to
adjustment from time to time as follows:
(A) Stock Splits and Combinations. In case the Company
-----------------------------
shall at any time or from time to time after the Issuance Date (a) subdivide or
split the outstanding shares of Common Stock, (b) combine or reclassify the
outstanding shares of Common Stock into a smaller number of shares or (c) issue
by reclassification of the shares of Common Stock any shares of capital stock of
the Company, then, and in each such case, the Conversion Price in effect
immediately prior to such event or the record date therefor, whichever is
earlier, shall be adjusted so that the holder of any shares of Preferred Stock
thereafter surrendered for conversion shall be entitled to receive the number of
shares of Common Stock or other securities of the Company which such holder
would have owned or have been entitled to receive after the occurrence of any of
the events described above, had such shares of Preferred Stock been surrendered
for conversion immediately prior to the occurrence of such event
<PAGE>
12
or the record date therefor, whichever is earlier. An adjustment made pursuant
to this subparagraph (A) shall become effective at the close of business on the
day upon which such corporate action becomes effective. Such adjustment shall be
made successively whenever any event listed above shall occur.
(B) Stock Dividends in Common Stock. In case the Company
-------------------------------
shall at any time or from time to time after the Issuance Date pay a dividend or
make a distribution in shares of Common Stock on any class of capital stock of
the Company other than dividends or distributions of shares of Common Stock or
other securities with respect to which adjustments are provided in paragraph
(i)(A) above, and the total number of shares constituting such dividend or
distribution shall exceed 25% of the total number of shares of Common Stock
outstanding at the close of business on the record date fixed for determination
of shareholders entitled to receive such dividend or distribution, the
Conversion Price shall be adjusted so that the holder of each share of Preferred
Stock shall be entitled to receive upon conversion thereof, the number of shares
of Common Stock determined by multiplying (1) the applicable Conversion Price by
(2) a fraction, the numerator of which shall be the number of shares of Common
Stock theretofore outstanding and the denominator of which shall be the sum of
such number of shares and the total number of shares issued in such dividend or
distribution. In case the total number of shares constituting such dividend or
distribution shall not exceed 25% of the total number of shares of Common Stock
outstanding at the close of business on the record date fixed for such dividend
or distribution, such shares of Common Stock shall be considered to be issued at
the time of any such next succeeding dividend or other distribution in which the
number of shares of Common Stock issued, together with the number of shares
issued in all previous such dividends and distributions, shall exceed such 25%.
(C) Issuance of Rights or Warrants. In case the Company
------------------------------
shall issue to all holders of Common Stock rights or warrants expiring within 45
days entitling such holders to subscribe for or purchase Common Stock at a price
per share less than the Current Market Price (as defined below), the Conversion
Price in effect immediately prior to the close of business on the record date
fixed for determination of shareholders entitled to receive such rights or
warrants shall be reduced by multiplying such Conversion Price by a fraction,
the numerator of which is the sum of the number of shares of Common Stock
outstanding at the close of business on such record date and the number of
shares of Common Stock that the aggregate offering price of the total number of
shares of Common Stock so offered for subscription or purchase would purchase at
such Current Market Price and the denominator of which is the sum of the number
of shares of Common Stock outstanding at the close of business on such record
date and the number of additional shares of Common Stock so offered for
subscription or purchase. For purposes of this subparagraph (C), the issuance of
rights or warrants to subscribe for or purchase securities convertible into
Common Stock shall be deemed to be the issuance of rights or warrants to
purchase the Common Stock into which such securities are convertible at an
aggregate offering price equal to the sum of the aggregate offering price of
such securities and the minimum aggregate amount (if any) payable upon
conversion of such securities into Common Stock. Such adjustment shall be made
successively whenever any such event shall occur.
<PAGE>
13
(D) Distribution of Indebtedness, Securities or Assets.
--------------------------------------------------
In case the Company shall distribute to all holders of Common Stock (whether by
dividend or in a merger, amalgamation or consolidation or otherwise) evidences
of indebtedness, shares of capital stock of any class or series, other
securities, cash or assets (other than Common Stock, rights or warrants referred
to in subparagraph (C) above or a dividend payable exclusively in cash and other
than as a result of a Fundamental Change (as defined below)), the Conversion
Price in effect immediately prior to the close of business on the record date
fixed for determination of shareholders entitled to receive such distribution
shall be reduced by multiplying such Conversion Price by a fraction, the
numerator of which is the Current Market Price on such record date less the fair
market value (as determined by the Board of Directors of the Company, whose
determination in good faith shall be conclusive) of the portion of such
evidences of indebtedness, shares of capital stock, other securities, cash and
assets so distributed applicable to one share of Common Stock and the
denominator of which is the Current Market Price. Such adjustment shall be made
successively whenever any such event shall occur.
(E) Fundamental Changes. In case any transaction or
-------------------
event (including, without limitation, any merger, consolidation, sale of assets,
tender or exchange offer, reclassification, compulsory share exchange or
liquidation) shall occur in which all or substantially all outstanding Common
Stock is converted into or exchanged for stock, other securities, cash or assets
(each, a "Fundamental Change"), the holder of each share of Preferred Stock
outstanding immediately prior to the occurrence of such Fundamental Change shall
have the right upon any subsequent conversion to receive (but only out of
legally available funds, to the extent required by applicable law) the kind and
amount of stock, other securities, cash and assets that such holder would have
received if such share had been converted immediately prior thereto.
(ii) Anything in this section (i) to the contrary
notwithstanding, the Company shall not be required to give effect to any
adjustment in the Conversion Price unless and until the net effect of one or
more adjustments (each of which shall be carried forward until counted toward
adjustment), determined as above provided, shall have resulted in a change of
the Conversion Price by at least 1%, and when the cumulative net effect of more
than one adjustment so determined shall be to change the Conversion Price by at
least 1%, such change in the Conversion Price shall thereupon be given effect.
In the event that, at any time as a result of the provisions of this paragraph
(i), the holder of shares of Preferred Stock upon subsequent conversion shall
become entitled to receive any shares of capital stock of the Company other than
Common Stock, the number of such other shares so receivable upon conversion of
shares of Preferred Stock shall thereafter be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable to the
provisions contained herein.
(iii) There shall be no adjustment of the Conversion
Price in case of the issuance of any stock of the Company in a merger,
reorganization, acquisition, reclassification, recapitalization or other similar
transaction except as set forth in this paragraph (i).
<PAGE>
14
(iv) In any case in which this paragraph (i) requires
that an adjustment as a result of any event become effective from and
after a record date, the Company may elect to defer until after the occurrence
of such event (A) issuing to the holder of any shares of Preferred Stock
converted after such record date and before the occurrence of such event the
additional shares of Common Stock issuable upon such conversion over and above
the shares issuable on the basis of the conversion price in effect immediately
prior to adjustment and (B) paying to such holder any amount in cash in lieu of
a fractional share of Common Stock.
(v) If the Company shall take a record of the holders of
its Common Stock for the purpose of entitling them to receive a dividend or
other distribution, and shall thereafter and before the distribution to
shareholders thereof legally abandon its plan to pay or deliver such dividend or
distribution, then thereafter no adjustment in the number of shares of Common
Stock issuable upon exercise of the right of conversion granted by this
paragraph (i) or in the Conversion Price then in effect shall be required by
reason of the taking of such record.
(vi) The Board of Directors of the Company shall have
the power to resolve any ambiguity or correct any error in this paragraph (i),
and its action in so doing shall be final and conclusive.
(j) Notwithstanding anything herein to the contrary, if
the Company is reorganized such that the Common Stock is exchanged for the
Common Stock of a new entity ("Newco"), the Common Stock of which is traded on
the National Association of Securities Dealers, Inc. Automated Quotation System
or another recognized securities exchange, then the Company, by notice to the
holders of the Preferred Stock but without any required consent on their part,
shall have the option to cause the exchange of the shares of Preferred Stock for
preferred stock of Newco having the same terms and conditions as set forth
herein, provided that, in the event that Newco is not solely incorporated as a
--------
Bermuda company or in the event the Newco share structure is not identical to
that of the Company, the rights attaching to the preferred stock of Newco may be
adjusted so as to comply with the local law of the country of incorporation of
Newco or the new share structure of Newco. If the Company exercises such option,
the Company shall indemnify each holder of shares of Preferred Stock if an
exchange described in this paragraph (j) would, under then applicable United
States Federal income tax law, result in the recognition of tax by such holder;
provided, however, that the Company shall not be obligated to indemnify any
holder for any payments described under subparagraphs (f)(ii) and (f)(iii),
unless and to the extent provided in such subparagraphs.
(k) Certain Definitions. As used in this Schedule, the
-------------------
following terms shall have the following meanings, unless the context otherwise
requires:
"Affiliate" of any person means any other person who,
directly or indirectly, Controls, is under common Control or is
Controlled by such other person. For purposes of this definition, "Control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under
<PAGE>
15
common control with"), as used with respect to any person, shall mean the power,
directly or indirectly, to direct or cause the direction of the management or
policies of such person, whether through the ownership of voting securities, by
contract or otherwise; provided that beneficial ownership of 10% or more of the
Voting Stock of a person shall be deemed to be Control.
"Business Day" means any day other than a Saturday,
------------
Sunday or a United States federal or Bermuda holiday.
"Change in Control" means, with respect to the Company,
-----------------
the occurrence of any of the following: (i) any "person" (as such term is unused
in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), other than a Permitted Holder, is or becomes the beneficial
owner, directly or indirectly, of 35% or more of the Voting Stock (measured by
voting power rather than number of shares) of the Company, and the Permitted
Holders own, in the aggregate, a lesser percentage of the total Voting Stock
(measured by voting power rather than by number of shares) of the Company than
such person and do not have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the board of
directors of the Company (for the purposes of this clause, such other person
shall be deemed to "beneficially own" any Voting Stock of a specified
corporation held by a parent corporation if such other person beneficially owns,
directly or indirectly, more than 35% of the Voting Stock (measured by voting
power rather than by number of shares) of such parent corporation and the
Permitted Holders beneficially own, directly or indirectly, in the aggregate a
lesser percentage of Voting Stock (measured by voting power rather than by
number of shares) of such parent corporation and do not have the right or
ability by voting power, contract or otherwise to elect or designate for
election a majority of the board of directors of such parent corporation), (ii)
during any period of two consecutive years, Continuing Directors cease for any
reason to constitute a majority of the Board of Directors of the Company, (iii)
the Company consolidates or merges with or into any other person, other than a
consolidation or merger (a) of the Company into Global Crossing Holdings or
Global Crossing Holdings into the Company, or the Company with or into a
Subsidiary of the Company or (b) pursuant to a transaction in which the
outstanding Voting Stock of the Company is changed into or exchanged for cash,
securities or other property with the effect that the beneficial owners of the
outstanding Voting Stock of the Company immediately prior to such transaction,
beneficially own, directly or indirectly, more than 35% of the Voting Stock
(measured by voting power rather than number of shares) of the surviving
corporation immediately following such transaction or (iv) the sale, transfer,
conveyance or other disposition (other than by way of merger or consolidation),
in one or a series of related transactions, of all or substantially all of the
assets of the Company and its Subsidiaries, taken as a whole, to any person
other than a Subsidiary of the Company or a Permitted Holder or a person more
than 50% of the Voting Stock (measured by voting power rather than by number of
shares) of which is owned, directly or indirectly, following such transaction or
transactions by the Permitted Holders; provided, however, that sales, transfers,
conveyances or other dispositions in the ordinary course of business of capacity
on cable systems owned, controlled or operated by the Company or any Subsidiary
or of telecommunications capacity or transmission rights acquired by the
<PAGE>
16
Company or any Subsidiary for use in its business, including, without
limitation, for sale, lease, transfer, conveyance or other disposition to any
customer of the Company or any Subsidiary shall not be deemed a disposition of
assets for purposes of this clause (iv).
"Continuing Directors" means individuals who at the
--------------------
beginning of the period of determination constituted the Board of Directors of
the Company, together with any new directors whose election by such Board of
Directors or whose nomination for election by the shareholders of the Company
was approved by a vote of at least a majority of the directors of the Company
then still in office who were either directors at the beginning of such period
or whose election or nomination for election was previously so approved or is
designee of any one of the Permitted Holders or any combination thereof or was
nominated or elected by any such Permitted Holder(s) or any of their designees.
"Current Market Price" means, with respect to any event
--------------------
set forth in paragraph (i) herein, as applicable, the average of the
daily closing prices for the five consecutive trading days selected by the Board
of Directors of the Company commencing not more than 20 trading days before, and
ending not later than the date of such event and the date immediately preceding
the record date fixed in connection with such event.
"Permitted Holder" means Pacific Capital Group, Inc. and
----------------
CIBC Oppenheimer Corp., and their respective Affiliates.
"Subsidiary" means, with respect to any person, (i) any
---------
corporation, association or other business entity of which more than
50% of the total voting power of shares of capital stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such person or one or more of the other Subsidiaries
of that person (or a combination thereof) and (ii) any partnership (a) the sole
general partner or the managing general partner of which is such person or a
Subsidiary of such person or (b) the only general partners of which are such
person or of one or more Subsidiaries of such person (or any combination
thereof).
"Voting Stock" of any person as of any date means the
------------
capital stock of such person that is at the time entitled to vote in the
election of the Board of Directors of such person.
(l) Headings. The headings of the paragraphs of this
--------
Schedule are for convenience of reference only and hall not define, limit or
affect any of the provisions hereof.
(m) Bye-Laws. This Schedule shall be attached to the
--------
Bye-Laws of the Company and shall become incorporated in such Bye-Laws.
<PAGE>
Exhibit 4.9
GLOBAL CROSSING LTD.
__%[Cumulative][Convertible] Preferred Stock, Series __
Cusip No.: _________ ___________ Shares
THIS CERTIFIES THAT_____________________________________________ is
the owner of fully paid and non-assessable shares of ____%
[Cumulative][Convertible] Preferred Stock, Series ___, par value $0.01 per
share, of GLOBAL CROSSING LTD., a Bermuda company (the "Company"), transferable
on the books of the Company by the holder hereof in person or by its duly
authorized attorney, upon surrender of this Certificate properly endorsed. This
Certificate and the shares represented hereby are issued and shall be held
subject to all of the provisions of the Certificate of Designations, Powers,
Preferences and Rights of the __% [Cumulative][Convertible] Preferred Stock,
Series __, the Memorandum of Association of the Company, as amended, and the
Bye-Laws of the Company and any amendments or restatements thereto. This
Certificate is not valid unless countersigned and registered by the Transfer
Agent and Registrar.
IN WITNESS WHEREOF, the Company has caused this Certificate to be executed
on its behalf by its duly authorized officers.
GLOBAL CROSSING LTD.
By: _____________________
Name:
Title:
Countersigned and Registered:
- -----------------------------
Transfer Agent and Registrar
By: _____________________,
Authorized signatory
Dated: ___________________
<PAGE>
2
The Company will furnish without charge to each shareholder who
so requests a description of the powers, designations, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions, of each class of capital stock or series thereof
which the Company is authorized to issue. Such request should be directed to the
office of the Secretary of the Company, Wessex House, 45 Reid Street, Hamilton
HM 12, Bermuda, telephone number: (441) 296-8600.
---------------------------------
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN OR DESTROYED,
THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO THE
ISSUANCE OF A REPLACEMENT CERTIFICATE.
---------------------------------
The following abbreviations, when used in the inscription on the
face of this Certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT___________(Custodian)_________
(Custodian) (Minor)
TEN ENT -- as tenants by the entireties under Uniform Gifts to Minors Act of_____________
(State)
JT TEN -- as joint tenants with right of
survivorship and not as tenants
in common
Additional abbreviations may also be used though not in the above list.
</TABLE>
<PAGE>
ASSIGNMENT FORM
FOR VALUE RECEIVED, __________________________________________
HEREBY SELL, ASSIGN AND TRANSFER UNTO
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------
- ----------------------------------------
- ------------------------------------------------------------------------------
(Please Print or Typewrite Name and Address, Including Zip Code, of Assignee)
____________________________ shares of ____% [Cumulative][Convertible] Preferred
Stock Series ____ of the Company represented by this Certificate and do hereby
irrevocably constitute and appoint __________________ Attorney to transfer the
said shares of ____% [Cumulative][Convertible] Preferred Stock, Series ____ on
the books of the Company, with full power of substitution in the premises.
Dated: _______________________
Signature:_____________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
certificate in every particular,
without alteration or enlargement or
any change whatever.
Signature(s) Guaranteed:
By:__________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION,
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS) WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM) PURSUANT TO
S.E.C. RULE 17AD-15.
<PAGE>
NOTICE OF ELECTION TO CONVERT
If you want to elect to have all of the shares of Series __
Preferred Stock represented by this Certificate converted by the Company into
_____ shares of common stock, par value $0.01 per share, of the Company pursuant
to Section [ ] of the Certificate of Designations, please check the box below:
[_] Convert all shares of Series ___ Preferred Stock pursuant to Section [ ]
If you want to elect to have only part of the shares of Series __
Preferred Stock represented by this Certificate converted by the Company into
_____ shares of common stock, par value $0.01 per share, of the Company pursuant
to Section [ ] of the Certificate of Designations, state the amount you elect to
have converted:
$------------.
Your Signature:
-----------------------------------
(Sign exactly as your name appears on the face
of this Note)
Tax Identification No.:
---------------------------
Date:
---------------------------------------------
Signature Guarantee:
-------------------
<PAGE>
Exhibit 4.10
GLOBAL CROSSING LTD.
and
_______________________________
Debt Warrant Agent
_________________
[SENIOR] [SUBORDINATED] DEBT WARRANT AGREEMENT*
Dated as of ______________
________________
- -------------------------------------------------------------------------------
* OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS HEREIN SHALL BE
DETERMINED IN CONFORMITY WITH THE APPLICABLE PROSPECTUS SUPPLEMENT OR
SUPPLEMENTS.
<PAGE>
TABLE OF CONTENTS **
Page
----
PARTIES ................................................................... 1
RECITALS .................................................................. 1
ARTICLE I ISSUANCE OF DEBT WARRANTS AND EXECUTION AND DELIVERYOF DEBT
WARRANT CERTIFICATES............................................ -1-
Section 1.01. Issuance of Debt Warrants................................ -1-
Section 1.02 Form and Execution of Debt Warrant Certificates........... -2-
Section 1.03 Issuance and Delivery of Debt Warrant Certificates........ -3-
Section 1.04 Temporary Debt Warrant Certificates....................... -3-
Section 1.05 Payment of Certain Taxes.................................. -3-
Section 1.06 "Holder".................................................. -4-
ARTICLE II DURATION AND EXERCISE OF DEBT WARRANTS......................... -4-
Section 2.01 Duration of Debt Warrants................................. -4-
Section 2.02 Exercise of Debt Warrants................................. -4-
ARTICLE III OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERSOF DEBT
WARRANTS...................................................... -5-
Section 3.01 No Rights as Holder of Underlying Debt Securities
Conferred by Debt Warrants or Debt Warrant Certificates... -5-
Section 3.02 Lost, Stolen, Destroyed or Mutilated Debt Warrant
Certificates.............................................. -5-
Section 3.03 Holder of Debt Warrants May Enforce Rights................ -6-
ARTICLE IV EXCHANGE AND TRANSFER OF DEBT WARRANTS......................... -6-
Section 4.01 Debt Warrant Register; Exchange and Transfer of Debt
Warrants.................................................. -6-
Section 4.02 Treatment of Holders of Debt Warrants Certificates........ -7-
Section 4.03 Cancellation of Debt Warrant Certificates................. -7-
ARTICLE V CONCERNING THE DEBT WARRANT AGENT............................... -8-
Section 5.01 Debt Warrant Agent........................................ -8-
Section 5.02 Conditions of Debt Warrant Agent's Obligations............ -8-
Section 5.03 Resignation and Removal; Appointment of Successor......... -10-
Section 5.04 Compliance With Applicable Laws........................... -12-
Section 5.05 Office.................................................... -12-
- -----------------
** The Table of Contents is not part of the Debt Warrant Agreement.
ii
<PAGE>
ARTICLE VI MISCELLANEOUS................................................. -12-
Section 6.01 Consolidation, Merger or Amalgamation of the Company
and Conveyance or Transfer Permitted Subject to
Certain Conditions....................................... -12-
Section 6.02 Rights and Duties of Successor Corporation............... -12-
Section 6.03 Supplements and Amendments............................... -13-
Section 6.04 Notices and Demands to the Company and Debt Warrant
Agent.................................................... -13-
Section 6.05 Addresses................................................ -13-
Section 6.06 Applicable Law........................................... -13-
Section 6.07 Delivery of Prospectus................................... -14-
Section 6.08 Governmental Approvals................................... -14-
Section 6.09 Persons Having Rights under Debt Warrant Agreement....... -14-
Section 6.10 Headings................................................. -14-
Section 6.11 Counterparts............................................. -14-
Section 6.12 Consent to Jurisdiction and Service...................... -15-
Section 6.13 Inspection of Agreement.................................. -16-
iii
<PAGE>
THIS [SENIOR] [SUBORDINATED] DEBT WARRANT AGREEMENT, dated as of
__________, between Global Crossing Ltd., a Bermuda company (the "Company"), and
____________________, a __________ organized and existing under the laws of
__________, as warrant agent (the "Debt Warrant Agent").
WHEREAS, the Company and _____________________ has entered into an
Indenture dated as of [ ] (the "Indenture") with United States
Trust Company of New York, as trustee (the "Trustee"), providing for the
issuance by the Company from time to time, in one or more series, of debt
securities evidencing its unsecured, ________________ indebtedness (such debt
securities, being referred to as the "Securities");
WHEREAS, the Company proposes to issue warrants (the "Debt Warrants")
representing the right to purchase Debt Securities of one or more series (the
"Underlying Debt Securities");
WHEREAS, the Company has duly authorized the execution and delivery of this
Debt Warrant Agreement to provide for the issuance of Debt Warrants to be
exercisable at such times and for such prices, and to have such other
provisions, as shall be fixed as hereinafter provided; and
WHEREAS, the Company desires the Debt Warrant Agent to Act on behalf of the
Company, and the Debt Warrant Agent is willing to act in connection with the
issuance of the Debt Warrant Certificates and other matters as provided below.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF DEBT WARRANTS AND EXECUTION AND DELIVERY
OF DEBT WARRANT CERTIFICATES
Section 1.01. Issuance of Debt Warrants. Debt Warrants may be issued from
-------------------------
time to time. Prior to the issuance of any Debt Warrants, there shall be
established by or pursuant to a resolution or resolutions duly adopted by the
Company's Board of Directors or by any committee thereof duly authorized to act
with respect thereto (a "Board Resolution"):
a) the title and aggregate number of such Debt Warrants;
b) the offering price of such Debt Warrants, if any;
c) the title, aggregate principal amount, ranking and terms
(including the subordination and conversion provisions) of the Underlying Debt
Securities that may be purchased upon exercise of such Debt Warrants;
-1-
<PAGE>
d) the time or times at which, or period or periods during which,
such Debt Warrants may be exercised, the minimum or maximum amount of Debt
Warrants which may be exercised at any one time and the final date on which such
Debt Warrants may be exercised (the "Expiration Date");
e) the principal amount of Underlying Debt Securities that may be
purchased upon exercise of each Debt Warrant and the price, or the manner of
determining the price (the "Debt Warrant Price"), at which such principal amount
may be purchased upon such exercise;
f) the terms of any right to redeem or call such Debt Warrants; and
g) any other terms of such Debt Warrants not inconsistent with the
provisions of this Agreement.
Section 1.02 Form and Execution of Debt Warrant Certificates.
-----------------------------------------------
a) The Debt Warrants shall be evidenced by warrant certificates (the
"Debt Warrant Certificates"), which may be in registered or bearer form and
otherwise shall be substantially in such form or forms as shall be established
by or pursuant to a Board Resolution. Each Debt Warrant Certificate, whenever
issued, shall be dated the date it is countersigned by the Debt Warrant Agent
and may have such letters, numbers or other identifying marks and such legends
or endorsements printed, lithographed or engraved thereon as are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any applicable law, rule or regulation or with any rule or
regulation of any securities exchange on which the Debt Warrants may be listed,
or to conform to usage, as the officer of the Company executing the same may
approve (such officer's execution thereof to be conclusive evidence of such
approval). Each Debt Warrant Certificate shall evidence one or more Debt
Warrants.
b) The Debt Warrant Certificates shall be signed in the name and on
behalf of the Company by its Chairman of the Board of Directors, its President,
an Executive Vice President, any Vice President, the Treasurer or any Assistant
Treasurer and by its Secretary or any Assistant Secretary. Such signatures may
be manual or facsimile signatures of the present or any future holder of any
such office and may be imprinted or otherwise reproduced on the Debt Warrant
Certificates, subject to the Company=s Bye-Laws as in effect from time to time.
The seal of the Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Debt Warrant
Certificates.
c) No Debt Warrant Certificate shall be valid for any purpose, and no
Debt Warrant evidenced thereby shall be deemed issued or exercisable, until such
Debt Warrant Certificate has been countersigned by the manual or facsimile
signature of the Debt Warrant Agent. Such signature by the Debt Warrant Agent
upon any Debt Warrant Certificate executed by the Company shall be conclusive
evidence that the Debt Warrant Certificate so countersigned has been duly issued
hereunder.
-2-
<PAGE>
d) In case any officer of the Company who shall have signed any Debt
Warrant Certificate either manually or by facsimile signature shall cease to be
such officer before the Debt Warrant Certificate so signed shall have been
countersigned and delivered by the Debt Warrant Agent, such Debt Warrant
Certificate nevertheless may be countersigned and delivered as though the person
who signed such Debt Warrant Certificate had not ceased to be such officer of
the Company; and any Debt Warrant Certificate may be signed on behalf of the
Company by such person as, at the actual date of the execution of such Debt
Warrant Certificate, shall be the proper officer of the Company, although at the
date of the execution of this Agreement such person was not such an officer.
Section 1.03 Issuance and Delivery of Debt Warrant Certificates. At any
--------------------------------------------------
time and from time to time after the execution and delivery of this Agreement,
the Company may deliver Debt Warrant Certificates executed by the Company to the
Debt Warrant Agent for countersignature. Except as provided in the following
sentence, the Debt Warrant Agent shall countersign thereupon and deliver such
Debt Warrant Certificates to or upon the written request of the Company.
Subsequent to the original issuance of a Debt Warrant Certificate evidencing
Debt Warrants, the Debt Warrant Agent shall countersign a new Debt Warrant
Certificate evidencing such Debt Warrants only if such Debt Warrant Certificate
is issued in exchange or substitution for one or more previously countersigned
Debt Warrant Certificates evidencing such Debt Warrants or in connection with
their transfer, as hereinafter provided.
Section 1.04 Temporary Debt Warrant Certificates. Pending the preparation
-----------------------------------
of definitive Debt Warrant Certificates, the Company may execute, and upon the
order of the Company the Debt Warrant Agent shall countersign and deliver,
temporary Debt Warrant Certificates that are printed, lithographed, typewritten,
mimeographed or otherwise produced, substantially of the tenor of the definitive
Debt Warrant Certificates in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officer executing such Debt Warrant Certificates may determine, as evidenced by
such officer's execution of such Debt Warrant Certificates.
If temporary Debt Warrant Certificates are issued, the Company will
cause definitive Debt Warrant Certificates to be prepared without unreasonable
delay. After the preparation of definitive Debt Warrant Certificates, the
temporary Debt Warrant Certificates shall be exchangeable for definitive Debt
Warrant Certificates upon surrender of the temporary Debt Warrant Certificates
at the corporate trust office of the Debt Warrant Agent or __________, without
charge to the Holder, as defined in Section 1.06 hereof. Upon surrender for
cancellation of any one or more temporary Debt Warrant Certificates, the Company
shall execute and the Debt Warrant Agent shall countersign and deliver in
exchange therefor definitive Debt Warrant Certificates representing the same
aggregate number of Debt Warrants. Until so exchanged, the temporary Debt
Warrant Certificates shall in all respects be entitled to the same benefits
under this Agreement as definitive Debt Warrant Certificates.
-3-
<PAGE>
Section 1.05 Payment of Certain Taxes. The Company will pay all stamp and
------------------------
other duties, if any, to which this Agreement or the original issuance of the
Debt Warrants or Debt Warrant Certificates may be subject under the laws of the
United States of America or any state or locality.
Section 1.06 "Holder". The term "Holder" or "Holders", as used herein
------
with reference to a Debt Warrant Certificate, shall mean [if registered Debt
Warrants the person or persons in whose name such Debt Warrant Certificate shall
then be registered as set forth in the Debt Warrant Register to be maintained by
the Debt Warrant Agent pursuant to Section 4.01 for that purpose] [if bearer
Debt Warrants - the bearer of such Debt Warrant Certificate].
ARTICLE II
DURATION AND EXERCISE OF DEBT WARRANTS
Section 2.01 Duration of Debt Warrants. Each Debt Warrant may be
-------------------------
exercised at the time or times, or during the period or periods, provided by or
pursuant to the Board Resolution relating thereto and specified in the Debt
Warrant Certificate evidencing such Debt Warrant. Each Debt Warrant not
exercised at or before 5:00 P.M., New York City time, on its Expiration Date
shall become void, and all rights of the Holder of such Debt Warrant thereunder
and under this Agreement shall cease, provided that the Company reserves the
right to, and may, in its sole discretion, at any time and from time to time, at
such time or times as the Company so determines, extend the Expiration Date of
the Warrants for such periods of time as it chooses. Whenever the Expiration
Date of the Debt Warrants is so extended, the Company shall at least [20] days
prior to the then Expiration Date cause to be mailed to the Debt Warrant Agent
and the registered Holders of the Debt Warrants in accordance with the
provisions of Section 6.04 hereof a notice stating that the Expiration Date has
been extended and setting forth the new Expiration Date.
Section 2.02 Exercise of Debt Warrants. a) The Holder of a Debt Warrant
-------------------------
shall have the right, at its option, to exercise such Debt Warrant and, subject
to subsection (f) of this Section 2.02, purchase the principal amount of
Underlying Debt Securities provided for therein at the time or times or during
the period or periods referred to in Section 2.01 and specified in the Debt
Warrant Certificate evidencing such Debt Warrant. Except as may be provided in
a Debt Warrant Certificate, a Debt Warrant may be exercised by completing the
form of election to purchase set forth on the reverse side of the Debt Warrant
Certificate, by duly executing and delivering the same, together with payment in
full of the Debt Warrant Price in lawful money of the United States of America,
in cash or by certified or official bank check or by bank wire transfer, to the
Debt Warrant Agent. Except as may be provided in a Debt Warrant Certificate,
the date on which such Debt Warrant Certificate and payment are received by the
Debt Warrant Agent as aforesaid shall be deemed to be the date on which the Debt
Warrant is exercised and the Underlying Debt Securities are issued.
-4-
<PAGE>
b) Upon the exercise of a Debt Warrant, the Company shall issue,
pursuant to the Indenture, in authorized denominations to or upon the order of
the Holder of such Debt Warrant, the Underlying Debt Securities to which such
Holder is entitled, in the form required under such Indenture, registered, in
the case of Underlying Debt Securities in registered form, in such name or names
as may be directed by such Holder.
c) If fewer than all of the Debt Warrants evidenced by a Debt Warrant
Certificate are exercised, the Company shall execute, and an authorized officer
of the Debt Warrant Agent shall countersign and deliver, a new Debt Warrant
Certificate evidencing the number of Debt Warrants remaining unexercised.
d) The Debt Warrant Agent shall deposit all funds received by it in
payment of the Debt Warrant Price in the account of the Company maintained with
it for such purpose and shall advise the Company by telephone by 5:00 P.M., New
York City time, of each day on which a payment of the Debt Warrant Price for
Debt Warrants is received of the amount so deposited in its account. The Debt
Warrant Agent shall promptly confirm such telephone advice in writing to the
Company.
e) The Debt Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company and the Trustee of (i) the number of Debt
Warrants of each title exercised as provided herein, (ii) the instructions of
each Holder with respect to delivery of the Underlying Debt Securities to which
such Holder is entitled upon such exercise, (iii) the delivery of Debt Warrant
Certificates evidencing the balance, if any, of the Debt Warrants remaining
unexercised after such exercise, and (iv) such other information as the Company
or the Trustee shall reasonably require. Such notice may be given by telephone
to be promptly confirmed in writing.
f) The Company will pay all documentary stamp taxes attributable to
the initial issuance of Stock Warrants or to the issuance of Underlying Debt
Securities to the registered Holder of such Debt Securities upon exercise
thereof; provided, however, that the Holder, and not the Company, shall be
required to pay any stamp or other tax or other governmental charge that may be
imposed in connection with any transfer involved in the issuance of the
Underlying Debt Securities; and in the event that any such transfer is involved,
the Company shall not be required to issue any Underlying Debt Securities (and
the Holder's purchase of the Underlying Debt Securities upon the exercise of
such Holder's Debt Warrant shall not be deemed to have been consummated) until
such tax or other charge shall have been paid or it has been established to the
Company's satisfaction that no such tax or other charge is due.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF DEBT WARRANTS
Section 3.01 No Rights as Holder of Underlying Debt Securities Conferred
-----------------------------------------------------------
by Debt Warrants or Debt Warrant Certificates. No Debt Warrant or Debt Warrant
- ---------------------------------------------
Certificate shall
-5-
<PAGE>
entitle the Holder to any of the rights of a holder of Underlying Debt
Securities, including, without limitation, the right to receive the payment of
principal of (or premium, if any, on) or interest, if any, on Underlying Debt
Securities or to enforce any of the covenants in the Indenture.
Section 3.02 Lost, Stolen, Destroyed or Mutilated Debt Warrant
-------------------------------------------------
Certificates. Upon receipt by the Company and the Debt Warrant Agent of
- ------------
evidence reasonably satisfactory to them of the ownership of and the loss,
theft, destruction or mutilation of any Debt Warrant Certificate and of
indemnity (other than in connection with any mutilated Debt Warrant Certificates
surrendered to the Debt Warrant Agent for cancellation) reasonably satisfactory
to them, the Company shall execute, and the Debt Warrant Agent shall countersign
and deliver, in exchange for or in lieu of each lost, stolen, destroyed or
mutilated Debt Warrant Certificate, a new Debt Warrant Certificate evidencing a
like number of Debt Warrants of the same title. Upon the issuance of a new Debt
Warrant Certificate under this Section, the Company may require the payment of a
sum sufficient to cover any stamp or other tax or other governmental charge that
may be imposed in connection therewith and any other expenses (including the
fees and expenses of the Debt Warrant Agent) in connection therewith. Every
substitute Debt Warrant Certificate executed and delivered pursuant to this
Section in lieu of any lost, stolen or destroyed Debt Warrant Certificate shall
represent a contractual obligation of the Company, whether or not such lost,
stolen or destroyed Debt Warrant Certificate shall be at any time enforceable by
anyone, and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Debt Warrant Certificates, duly executed
and delivered hereunder, evidencing Debt Warrants of the same title. The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement of lost,
stolen, destroyed or mutilated Debt Warrant Certificates.
Section 3.03 Holder of Debt Warrants May Enforce Rights. Notwithstanding
------------------------------------------
any of the provisions of this Agreement, a Holder, without the consent of the
Debt Warrant Agent, the Trustee, the holder of any Underlying Debt Securities or
the Holder of any other Debt Warrant, may, on its own behalf and for its own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise in respect of, its right to
exercise its Debt Warrant or Debt Warrants in the manner provided in this
Agreement and its Debt Warrant Certificate.
ARTICLE IV
EXCHANGE AND TRANSFER OF DEBT WARRANTS
Section 4.01 Debt Warrant Register; Exchange and Transfer of Debt
----------------------------------------------------
Warrants. If registered Debt Warrants - The Debt Warrant Agent shall maintain,
at its corporate trust office or at __________, a register (the " Debt Warrant
Register") in which, upon the issuance of Debt Warrants and, subject to such
reasonable regulations as the Debt Warrant Agent may prescribe, it shall
register Debt Warrant Certificates and exchanges and transfers thereof. The
Debt Warrant
-6-
<PAGE>
Register shall be in written form or in any other form capable of being
converted into written form within a reasonable time.]
Except as provided in the following sentence, upon surrender at the
corporate trust office of the Debt Warrant Agent or at __________ Debt Warrant
Certificates may be exchanged for one or more other Debt Warrant Certificates
evidencing the same aggregate number of Debt Warrants of the same title, or may
be transferred in whole or in part. [If registered Debt Warrants - A transfer
shall be registered upon surrender of a Debt Warrant Certificate to the Debt
Warrant Agent at its corporate trust office or at __________ for transfer,
properly endorsed or accompanied by appropriate instruments of transfer and
written instructions for transfer, all in form satisfactory to the Company and
the Debt Warrant Agent duly signed by the registered holder or holders thereof
or by the duly appointed legal representative thereof or by a duly authorized
attorney, such signature to be guaranteed by (a) a bank or trust company, (b) a
broker or dealer that is a member of the National Association of Securities
Dealers, Inc. (the "NASD") or (c) a member of a national securities exchange.
Upon any such registration of transfer, a new Debt Warrant Certificate shall be
issued to the transferee. Whenever a Debt Warrant Certificate is surrendered
for exchange or transfer, the Debt Warrant Agent shall countersign and deliver
to the person or persons entitled thereto one or more Debt Warrant Certificates
duly executed by the Company, as so requested. The Debt Warrant Agent shall not
be required to effect any exchange or transfer which will result in the issuance
of a Debt Warrant Certificate evidencing a fraction of a Debt Warrant. All Debt
Warrant Certificates issued upon any exchange or transfer of a Debt Warrant
Certificate shall be the valid obligations of the Company, evidencing the same
obligations, and entitled to the same benefits under this Agreement, as the Debt
Warrant Certificate surrendered for such exchange or transfer.
No service charge shall be made for any exchange or transfer of Debt
Warrants, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any such
exchange or transfer, in accordance with Section 2.02(f) hereof.
Section 4.02 Treatment of Holders of Debt Warrants. Every Holder of a
-------------------------------------
Debt Warrant, by accepting the Debt Warrant Certificate evidencing the same,
consents and agrees with the Company, the Debt Warrant Agent and with every
other Holder of Debt Warrants of the same title that the Company and the Debt
Warrant Agent may treat the Holder of a Debt Warrant Certificate (or, if the
Debt Warrant Certificate is not then detachable, the Holder of the related
Offered Debt Security) as the absolute owner of such Debt Warrant for all
purposes and as the person entitled to exercise the rights represented by
such Debt Warrant, any notice to the contrary notwithstanding.
Section 4.03 Cancellation of Debt Warrant Certificates. In the event that
-----------------------------------------
the Company shall purchase, redeem or otherwise acquire any Debt Warrants after
the issuance thereof, the Debt Warrant Certificate or Certificates evidencing
such Debt Warrants shall thereupon be delivered to the Debt Warrant Agent and be
canceled by it. The Debt Warrant Agent shall also cancel any Debt Warrant
Certificate (including any mutilated Debt Warrant Certificate) delivered
-7-
<PAGE>
to it for exercise, in whole or in part, or for exchange [or transfer] [if Debt
Warrant Certificates are issued in bearer form - , except that Debt Warrant
Certificates delivered to the Debt Warrant Agent in exchange for Debt Warrant
Certificates of other denominations may be retained by the Debt Warrant Agent
for reissue]. Debt Warrant Certificates so canceled shall be delivered by the
Debt Warrant Agent to the Company from time to time, or disposed of in
accordance with the instructions of the Company.
ARTICLE V
CONCERNING THE DEBT WARRANT AGENT
Section 5.01 Debt Warrant Agent. The Company hereby appoints
------------------
___________________ as Debt Warrant Agent of the Company in respect of the Debt
Warrants and the Debt Warrant Certificates upon the terms and subject to the
conditions set forth herein; and _______________ hereby accepts such
appointment. The Debt Warrant Agent shall have the powers and authority granted
to and conferred upon it in the Debt Warrant Certificates and hereby and such
further powers and authority acceptable to it to act on behalf of the Company as
the Company may hereafter grant to or confer upon it. All of the terms and
provisions with respect to such powers and authority contained in any Debt
Warrant Certificate are subject to and governed by the terms and provisions
hereof.
Section 5.02 Conditions of Debt Warrant Agent's Obligations. The Debt
----------------------------------------------
Warrant Agent accepts its obligations set forth herein upon the terms and
conditions hereof, including the following, to all of which the Company agrees
and to all of which the rights hereunder of the Holders shall be subject:
a) Compensation and Indemnification. The Company agrees to promptly
--------------------------------
pay the Debt Warrant Agent the compensation [set forth in Exhibit A hereto]
and to reimburse the Debt Warrant Agent for reasonable out-of-pocket
expenses (including counsel fees) incurred by the Debt Warrant Agent in
connection with the services rendered hereunder by the Debt Warrant Agent.
The Company also agrees to indemnify the Debt Warrant Agent for, and to
hold it harmless against, any loss, liability or expense (including the
reasonable costs and expenses of defending against any claim of liability)
incurred without negligence or bad faith on the part of the Debt Warrant
Agent arising out of or in connection with its appointment, status or
service as Debt Warrant Agent hereunder.
b) Agent for the Company. In acting under this Agreement and in
---------------------
connection with any Debt Warrant Certificate, the Debt Warrant Agent is
acting solely as agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any Holder.
-8-
<PAGE>
c) Counsel. The Debt Warrant Agent may consult with counsel
-------
satisfactory to it, and the advice of such counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance with
the advice of such counsel.
d) Documents. The Debt Warrant Agent shall be protected and shall
---------
incur no liability for or in respect of any action taken, suffered or
omitted by it in reliance upon any notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it
to be genuine and to have been presented or signed by the proper parties.
e) Officer's Certificate. Whenever in the performance of its duties
---------------------
hereunder the Debt Warrant Agent shall reasonably deem it necessary that
any fact or matter be proved or established by the Company prior to taking,
suffering or omitting any action hereunder, the Debt Warrant Agent may
(unless other evidence in respect thereof be herein specifically
prescribed), in the absence of bad faith on its part, rely upon a
certificate signed by the Chairman of the Board of Directors, the Vice
Chairman of the Board of Directors, the President, an Executive Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary of the Company (an "Officer's Certificate")
delivered by the Company to the Debt Warrant Agent.
f) Actions Through Agents. The Debt Warrant Agent may execute and
----------------------
exercise any of the rights or powers hereby vested in it or perform any
duty hereunder either itself or by or through its attorneys or agents, and
the Debt Warrant Agent shall not be answerable or accountable for any act,
default, neglect or misconduct of any such attorney or agent or for any
loss to the Company resulting from such neglect or misconduct; provided,
however, that reasonable care shall have been exercised in the selection
and continued employment of such attorneys and agents.
g) Certain Transactions. The Debt Warrant Agent, and any officer,
--------------------
director or employee thereof, may become the owner of, or acquire any
interest in, any Debt Warrant, with the same rights that he, she or it
would have if it were not the Debt Warrant Agent, and, to the extent
permitted by applicable law, he, she or it may engage or be interested in
any financial or other transaction with the Company and may serve on, or as
depository, trustee or agent for, any committee or body of holders of
Underlying Debt Securities or other obligations of the Company as if it
were not the Debt Warrant Agent. Nothing in this Agreement shall be deemed
to prevent the Debt Warrant Agent from acting as Trustee under the
Indenture.
h) No Liability for Interest. The Debt Warrant Agent shall not be
-------------------------
liable for interest on any monies at any time received by it pursuant to
any of the provisions of this Agreement or of the Debt Warrant
Certificates, except as otherwise agreed with the Company.
-9-
<PAGE>
i) No Liability for Invalidity. The Debt Warrant Agent shall incur
---------------------------
no liability with respect to the validity of this Agreement (except as to
the due execution hereof by the Debt Warrant Agent) or any Debt Warrant
Certificate (except as to the countersignature thereof by the Debt Warrant
Agent).
j) No Responsibility for Company Representations. The Debt Warrant
---------------------------------------------
Agent shall not be responsible for any of the recitals or representations
contained herein (except as to such statements or recitals as describe the
Debt Warrant Agent or action taken or to be taken by it) or in any Debt
Warrant Certificate (except as to the Debt Warrant Agent's countersignature
on such Debt Warrant Certificate), all of which recitals and
representations are made solely by the Company.
k) No Implied Obligations. The Debt Warrant Agent shall be obligated
----------------------
to perform only such duties as are specifically set forth herein, and no
other duties or obligations shall be implied. The Debt Warrant Agent shall
not be under any obligation to take any action hereunder that may subject
it to any expense or liability, the payment of which within a reasonable
time is not, in its reasonable opinion, assured to it. The Debt Warrant
Agent shall not be accountable or under any duty or responsibility for the
use by the Company of any Debt Warrant Certificate countersigned by the
Debt Warrant Agent and delivered by it to the Company pursuant to this
Agreement or for the application by the Company of the proceeds of the
issuance or exercise of Debt Warrants. The Debt Warrant Agent shall have
no duty or responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in any Debt
Warrant Certificate or in case of the receipt of any written demand from a
Holder with respect to such default, including, without limiting the
generality of the foregoing, any duty or responsibility to initiate or
attempt to initiate any proceedings at law or otherwise or, except as
provided in Section 6.04 hereof, to make any demand upon the Company.
Section 5.03 Resignation and Removal; Appointment of Successor. a) The
-------------------------------------------------
Company agrees, for the benefit of the Holders of the Debt Warrants, that there
shall at all times be a Debt Warrant Agent hereunder until all the Debt Warrants
are no longer exercisable.
b) The Debt Warrant Agent may at any time resign as such by giving
written notice to the Company, specifying the date on which such resignation
shall become effective; provided that such date shall not be less than [90] days
after the date on which such notice is given, unless the Company agrees to
accept a shorter notice. Such resignation is subject to the appointment and
acceptance of a successor Debt Warrant Agent, as hereinafter provided. The Debt
Warrant Agent hereunder may be removed at any time by the filing with it of an
instrument in writing signed by or on behalf of the Company and specifying such
removal and the date when it shall become effective. Notwithstanding the
provisions of this Section 5.03(b), such resignation or removal shall take
effect only upon the appointment by the Company, as
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<PAGE>
hereinafter provided, of a successor Debt Warrant Agent (which shall be a bank
or trust company organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under the laws of such jurisdiction to exercise corporate trust powers and
having at the time of its appointment as Debt Warrant Agent a combined capital
and surplus (as set forth in its most recent published report of financial
condition) of at least [$50,000,000]) and the acceptance of such appointment by
such successor Debt Warrant Agent. In the event a successor Debt Warrant Agent
has not been appointed and has not accepted its duties within [90] days of the
Debt Warrant Agent's notice of resignation, the Debt Warrant Agent may apply to
any court of competent jurisdiction for the designation of a successor Debt
Warrant Agent. The obligations of the Company under Section 5.02(a) shall
continue to the extent set forth therein notwithstanding the resignation or
removal of the Debt Warrant Agent.
c) In case at any time the Debt Warrant Agent shall resign, or shall
be removed, or shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or shall file a petition seeking relief under Title 11 of the
United States Code, as now constituted or hereafter amended, or under any other
applicable federal or state bankruptcy law or similar law, or make an assignment
for the benefit of its creditors, or consent to the appointment of a receiver or
custodian for all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or if a receiver
or custodian for it or for all or any substantial part of its property shall be
appointed, or if an order of any court shall be entered for relief against it
under the provisions of Title 11 of the United States Code, as now constituted
or hereafter amended, or under any other applicable federal or state bankruptcy
or similar law, or if any public officer shall have taken charge or control of
the Debt Warrant Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, a successor Debt Warrant Agent,
qualified as aforesaid, shall be appointed by the Company by an instrument in
writing, filed with the successor Debt Warrant Agent. Upon the appointment as
aforesaid of a successor Debt Warrant Agent and acceptance by the successor Debt
Warrant Agent of such appointment, the Debt Warrant Agent so superseded shall
cease to be Debt Warrant Agent hereunder.
d) Any successor Debt Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Debt Warrant Agent, without any further act, deed or conveyance, shall become
vested with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named as Debt
Warrant Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer, deliver
and pay over, and such successor Debt Warrant Agent shall be entitled to
receive, [the Debt Warrant Register and] all monies, securities and other
property on deposit with or held by such predecessor (together with any books
and records relating thereto), as Debt Warrant Agent hereunder.
e) The Company shall cause notice of the appointment of any successor
Debt Warrant Agent to be [if registered Debt Warrants - mailed by first-class
mail, postage prepaid, to each Holder at its address appearing on the Debt
Warrant Register or, in the case of Debt
-11-
<PAGE>
Warrants that are issued with Offered Debt Securities and cannot then be
transferred separately therefrom, on the security register for the Offered Debt
Securities] [if bearer Debt Warrants -published in an Authorized Newspaper (as
defined in Section 101 of the Indenture) in The City of New York and in such
other city or cities as may be specified by the Company at least twice, [the
first such publication to be not earlier than the earliest date and not later
than the latest date prescribed for the giving such notice]. Such notice shall
set forth the name and address of the successor Debt Warrant Agent. Failure to
give any notice provided for in this Section 5.03(e), or any defect therein,
shall not, however, affect the legality or validity of the appointment of the
successor Debt Warrant Agent.
f) Any corporation into which the Debt Warrant Agent hereunder may be
merged or converted, or any corporation with which the Debt Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Debt Warrant Agent shall be a party, or any
corporation to which the Debt Warrant Agent shall sell or otherwise transfer all
or substantially all of its assets and business, provided that such Corporation
shall be qualified as aforesaid, shall be the successor Debt Warrant Agent under
this Agreement without the execution or filing of any paper, the giving of any
notice to Holders or any further act on the part of the parties hereto.
Section 5.04 Compliance With Applicable Laws. The Debt Warrant Agent
-------------------------------
agrees to comply with all applicable federal and state laws imposing obligations
on it in respect of the services rendered by it under this Debt Warrant
Agreement and in connection with the Debt Warrants, including (but not limited
to) the provisions of United States federal income tax laws regarding
information reporting and backup withholding. The Debt Warrant Agent expressly
assumes all liability for its failure to comply with any such laws imposing
obligations on it, including (but not limited to) any liability for failure to
comply with any applicable provisions of United States federal income tax laws
regarding information reporting and backup withholding.
Section 5.05 Office. The Company will maintain an office or agency where
------
Debt Warrant Certificates may be presented for exchange, transfer or exercise.
The office initially designated for this purpose shall be the corporate trust
office of the Debt Warrant Agent at _____________.
ARTICLE VI
MISCELLANEOUS
Section 6.01 Consolidation, Merger or Amalgamation of the Company and
--------------------------------------------------------
Conveyance or Transfer Permitted Subject to Certain Conditions. To the extent
- --------------------------------------------------------------
permitted in the Indenture, the Company may consolidate with or merge or
amalgamate into another corporation or other entity, or convey or transfer all
or substantially all of its properties and assets to any other corporation or
other entity.
-12-
<PAGE>
Section 6.02 Rights and Duties of Successor Corporation. In case of any
------------------------------------------
such consolidation, merger, conveyance or transfer and upon any assumption of
the duties and obligations of the Company by the successor corporation, such
successor corporation shall succeed to and be substituted for the Company, with
the same effect as if it had been named herein, and the Company shall be
relieved of any further obligation under this Agreement and the Debt Warrants.
Such successor corporation thereupon may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of the
Underlying Debt Securities issuable pursuant to the terms hereof. All the
Underlying Debt Securities so issued shall in all respects have the same legal
rank and benefit under the Indenture as the Underlying Debt Securities
theretofore or thereafter issued in accordance with the terms of this Agreement
and the Indenture.
In case of any such consolidation, merger, conveyance or transfer,
such changes in phraseology and form (but not in substance) may be made in the
Underlying Debt Securities thereafter to be issued as may be appropriate.
Section 6.03 Supplements and Amendments. a) The Company and the Debt
--------------------------
Warrant Agent may from time to time supplement or amend this Agreement without
the approval or consent of any Holder in order to cure any ambiguity, to correct
or supplement any provision contained herein that may be defective or
inconsistent with any other provision herein, or to make any other provision in
regard to matters or questions arising hereunder that the Company and the Debt
Warrant Agent may deem necessary or desirable and that shall not adversely
affect the interests of the Holders. Every Holder of Debt Warrants, whether
issued before or after any such supplement or amendment, shall be bound thereby.
Promptly after the effectiveness of any supplement or amendment that affects the
interests of the Holders, the Company shall give notice thereof, as provided in
Section 5.03(d) and 6.05 hereof, to the Holders affected thereby, setting forth
in general terms the substance of such supplement or amendment.
b) The Company and the Debt Warrant Agent may modify or amend this
Agreement and the Debt Warrant Certificates with the consent of the Holders of
not fewer than a majority in principal amount of the underlying Debt Securities
represented by the Debt Warrants affected by such modification or amendment, for
any purpose; provided, however, that no such modification or amendment that
shortens the period of time during which the Debt Warrants may be exercised, or
otherwise materially and adversely affects the exercise rights of the Holders or
reduces the percentage of Holders of outstanding Debt Warrants the consent of
which is required for modification or amendment of this Agreement or the Debt
Warrants, may be made without the consent of each Holder affected thereby.
Section 6.04 Notices and Demands to the Company and Debt Warrant Agent.
---------------------------------------------------------
If the Debt Warrant Agent shall receive any notice or demand addressed to the
Company by a Holder pursuant to the provisions of this Agreement or a Debt
Warrant Certificate, the Debt Warrant Agent shall promptly forward such notice
or demand to the Company.
-13-
<PAGE>
Section 6.05 Addresses. Any communications from the Company to the Debt
---------
Warrant Agent with respect to this Agreement shall be directed to
____________________, Attention: ____________________, and any communications
from the Debt Warrant Agent to the Company with respect to this Agreement shall
be directed to Global Crossing Ltd., Wessex House, 45 Reid Street, Hamilton
HM12, Bermuda, attention of General Counsel (or such other address as shall be
specified in writing by the Debt Warrant Agent or by the Company, as the case
may be).
Section 6.06 Applicable Law. This Agreement and the Debt Warrants shall
--------------
be governed by and construed in accordance with the laws of the State of New
York applicable to contracts made and to be performed entirely within such
State.
Section 6.07 Delivery of Prospectus/Prospectus Supplement. The Company
--------------------------------------------
will furnish to the Debt Warrant Agent sufficient copies of a prospectus,
prospectus supplement or prospectuses relating to the Underlying Debt Securities
deliverable upon exercise of any outstanding Debt Warrants (each a
"Prospectus"), and the Debt Warrant Agent agrees to deliver to the Holder of a
Debt Warrant, prior to or concurrently with the delivery of the Underlying Debt
Securities issued upon the exercise thereof, a copy of the Prospectus/Prospectus
Supplement relating to such Underlying Debt Securities.
Section 6.08 Governmental Approvals. The Company will use its reasonable
----------------------
best efforts to obtain and keep effective any and all permits, consents and
approvals of governmental agencies and authorities and the national securities
exchange on which the Debt Warrants may be listed or authorized for trading from
time to time, and will make all filings under federal and state securities laws
(including, without limitation, the maintenance of the effectiveness of a
registration statement in respect of the Underlying Debt Securities under the
Securities Act of 1933), as may be or become requisite in connection with the
issuance, sale, transfer and delivery of Debt Warrants and Debt Warrant
Certificates, the exercise of Debt Warrants and the issuance, sale and delivery
of Underlying Debt Securities issued upon exercise of Debt Warrants.
Section 6.09 Persons Having Rights under Debt Warrant Agreement. Nothing
--------------------------------------------------
in this Agreement, expressed or implied, and nothing that may be inferred from
any of the provisions hereof is intended or shall be construed to confer upon or
give to any person or corporation other than the Company, the Debt Warrant Agent
and the Holders any right, remedy or claim under or by reason of this Agreement
or any covenant, condition, stipulation, promise or agreement herein; and all
covenants, conditions, stipulations, promises and agreements herein shall be for
the sole and exclusive benefit of the Company, the Debt Warrant Agent and their
respective successors and the Holders of Debt Warrant Certificates.
Section 6.10 Headings. The descriptive headings of the several Articles
--------
and Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
-14-
<PAGE>
Section 6.11 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which when so executed and delivered shall be deemed to be
an original; but all such counterparts taken together shall constitute one and
the same agreement.
Section 6.12 Consent to Jurisdiction and Service. To the fullest extent
-----------------------------------
permitted by applicable law, the Company hereby 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 or any 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 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
AProcess Agent@) as the authorized agent of the Company, 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 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. 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. To the extent the Company
has or hereafter may acquire any immunity from jurisdiction of any court or from
any legal process (whether through service of notice, 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.
-15-
<PAGE>
Section 6.13 Inspection of Agreement. A copy of this Agreement shall be
-----------------------
available during business hours at the office of the Debt Warrant Agent for
inspection by any Holder. The Debt Warrant Agent may require such Holder to
submit its Debt Warrant Certificate for inspection prior to making such copy
available.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed all as of the day and year first above written.
GLOBAL CROSSING LTD., a Bermuda company,
[Seal]
By__________________________
Attest: Name:
Title:
_________________________________
Name and Title:
_________________________________
[Seal]
Attest:
By__________________________
Name and Title:
_________________________
Name and Title:
-16-
<PAGE>
Exhibit A
to
[Senior] [Subordinated] Debt Warrant Agreement
dated as of __________, 19__
[Compensation of Debt Warrant Agent]
-17-
<PAGE>
Exhibit 4.11
================================================================================
GLOBAL CROSSING LTD.
and
_______________________________
Stock Warrant Agent
STOCK WARRANT AGREEMENT*
Dated as of ______________, ____
FOR
UP TO ___ STOCK WARRANTS
EXPIRING ___________, _____
================================================================================
* OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS HEREIN SHALL BE DETERMINED
IN CONFORMITY WITH THE APPLICABLE PROSPECTUS SUPPLEMENT OR SUPPLEMENTS.
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I..........................................
Section 1.01 Issuance of Stock Warrants................................... 1
Section 1.02 Form and Execution of Warrant Certificates................... 2
Section 1.03 Issuance and Delivery of Warrant Certificates................ 3
Section 1.04 Temporary Warrant Certificates............................... 3
Section 1.05 Payment of Certain Taxes..................................... 3
Section 1.06 "Holder"..................................................... 3
ARTICLE II.........................................
Section 2.01 Duration of Stock Warrants................................... 4
Section 2.02 Exercise of Stock Warrants................................... 4
Section 2.03 Stock Warrant Adjustments.................................... 5
ARTICLE III........................................
Section 3.01 No Rights as Holder of Underlying [Preferred/Common] Shares
Conferred by Stock Warrants or Warrant Certificates.......... 5
Section 3.02 Lost, Stolen, Destroyed or Mutilated Warrant Certificates.... 6
Section 3.03 Holders of Stock Warrants May Enforce Rights................. 6
Section 3.04 Merger, Consolidation, Sale, Transfer or Conveyance.......... 6
ARTICLE IV.......................................
Section 4.01 Stock Warrant Register; Exchange and Transfer of Stock
Warrants..................................................... 7
Section 4.02 Treatment of Holders of Warrant Certificates................. 8
Section 4.03 Cancellation of Warrant Certificates......................... 8
ARTICLE V........................................
Section 5.01. Warrant Agent................................................ 8
Section 5.02 Conditions of Warrant Agent's Obligations.................... 8
Section 5.03 Resignation and Removal; Appointment of Successor........... 10
Section 5.04 Compliance With Applicable Laws............................. 11
Section 5.05 Office...................................................... 12
ARTICLE VI........................................
Section 6.01 Supplements and Amendments.................................. 12
Section 6.02 Notices and Demands to the Company and Warrant Agent........ 12
<PAGE>
Section 6.03 Addresses for Notices....................................... 12
Section 6.04 Governing Law............................................... 13
Section 6.05 Governmental Approvals...................................... 13
Section 6.06 Persons Having Rights Under Stock Warrant Agreement......... 13
Section 6.07 Delivery of Prospectus...................................... 13
Section 6.08 Headings.................................................... 13
Section 6.09 Counterparts................................................ 13
Section 6.10 Inspection of Agreement..................................... 13
Section 6.11 Consolidation, Merger or Amalgamation of the Company and
Conveyance or Transfer Permitted Subject to Certain
Conditions.................................................. 13
Section 6.12 Rights and Duties of Successor Corporation.................. 14
Section 6.13 Consent to Jurisdiction and Service......................... 15
<PAGE>
This STOCK WARRANT AGREEMENT, dated as of __________________, between
Global Crossing Ltd., a Bermuda Corporation (the "Company"), and
_______________, a ________________ organized and existing under the laws of
________________ (the "Warrant Agent").
WHEREAS, the Company proposes to sell certificates evidencing one or more
warrants (the " Stock Warrants" or, individually, a " Stock Warrant")
representing the right to purchase [common stock, par value $0.01 per share, of
the Company (the "Common Shares")] [shares of a series of preferred stock, par
value $0.01 per share, of the Company (the "Preferred Shares")], such warrant
certificates and other warrant certificates issued pursuant to this Agreement
being herein called the "Warrant Certificates";
WHEREAS, the Company has duly authorized the execution and delivery of
this Stock Warrant Agreement to provide for the issuance of Stock Warrants to be
exercisable at such times and for such prices, and to have such other
provisions, as shall be fixed as hereinafter provided; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act in connection with the
issuance of the Warrant Certificates and other matters as provided herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF STOCK WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
Section I.1 Issuance of Stock Warrants. Stock Warrants may be issued
--------------------------
from time to time. Prior to the issuance of any Stock Warrants, there shall be
established by or pursuant to a resolution or resolutions duly adopted by the
Company's Board of Directors or by any committee thereof duly authorized to act
with respect thereto (a "Board Resolution"):
(a) the title and aggregate number of such Stock Warrants;
(b) the offering price of such Stock Warrants, if any;
[(c) the designation, number and terms (including any subordination and
conversion provisions) of any Preferred Shares that are purchasable upon
exercise of such Stock Warrants;]
(d) the time or times at which, or period or periods during which, such
Stock Warrants may be exercised and the final date on which such Stock
Warrants may be exercised (the "Expiration Date");
<PAGE>
(e) the number of [Preferred/Common] Shares that may be purchased upon
exercise of such Stock Warrants; the price, or the manner of determining the
price (the "Warrant Price"), at which such [Preferred/Common] Shares may be
purchased upon exercise of the Stock Warrants; and any minimum or maximum
number of such Stock Warrants that are exercisable at any one time;
(f) if applicable, any anti-dilution provisions of such Stock Warrants;
(g) the terms of any right to redeem or call such Stock Warrants;
(h) the terms of any right of the Company to accelerate the Expiration
Date of the Stock Warrants upon the occurrence of certain events; and
(i) any other terms of such Stock Warrants not inconsistent with the
provisions of this Agreement.
Section I.2 Form and Execution of Warrant Certificates.
------------------------------------------
(a) The Stock Warrants shall be evidenced by the Warrant Certificates,
which shall be in registered form and substantially in such form or forms as
shall be established by or pursuant to a Board Resolution. Each Warrant
Certificate, whenever issued, shall be dated the date it is countersigned by the
Warrant Agent and may have such letters, numbers or other marks of
identification and such legends or endorsements printed, lithographed or
engraved thereon as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any securities exchange on
which the Stock Warrants may be listed, or to conform to usage, as the officer
of the Company executing the same may approve (such officer's execution thereof
to be conclusive evidence of such approval). Each Warrant Certificate shall
evidence one or more Stock Warrants.
(b) The Warrant Certificates shall be signed in the name and on behalf of
the Company by its Chairman of the Board of Directors, its President, an
Executive Vice President, any Vice President, the Treasurer or any Assistant
Treasurer and by its Secretary or any Assistant Secretary. Such signatures may
be manual or facsimile signatures of the present or any future holder of any
such office and may be imprinted or otherwise reproduced on the Warrant
Certificates, subject to the Company's Bye-Laws as in effect from time to time.
The seal of the Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
(c) No Warrant Certificate shall be valid for any purpose, and no Stock
Warrant evidenced thereby shall be deemed issued or exercisable, until such
Warrant Certificate has been countersigned by the manual or facsimile signature
of the Warrant Agent. Such signature by the Warrant Agent upon any Warrant
Certificate executed by the Company shall be conclusive evidence that the
Warrant Certificate so countersigned has been duly issued hereunder.
2
<PAGE>
(d) In case any officer of the Company who shall have signed any Warrant
Certificate either manually or by facsimile signature shall cease to be such
officer before the Warrant Certificate so signed shall have been countersigned
and delivered by the Warrant Agent, such Warrant Certificate nevertheless may be
countersigned and delivered as though the person who signed such Warrant
Certificate had not ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such person as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officer of the Company, although at the date of the execution of this Agreement
such person was not such an officer.
Section I.3 Issuance and Delivery of Warrant Certificates. At any time
---------------------------------------------
and from time to time after the execution and delivery of this Agreement, the
Company may deliver Warrant Certificates executed by the Company to the Warrant
Agent for countersignature. Subject to the provisions of this Section 1.03, the
Warrant Agent shall thereupon countersign and deliver such Warrant Certificates
to or upon the written request of the Company. Subsequent to the original
issuance of a Stock Warrant Certificate evidencing Stock Warrants, the Warrant
Agent shall countersign a new Warrant Certificate evidencing such Stock Warrants
only if such Warrant Certificate is issued in exchange or substitution for one
or more previously countersigned Warrant Certificates evidencing such Stock
Warrants or in connection with their transfer, as hereinafter provided.
Section I.4 Temporary Warrant Certificates. Pending the preparation of
------------------------------
definitive Warrant Certificates, the Company may execute, and upon the order of
the Company the Warrant Agent shall countersign and deliver, temporary Warrant
Certificates that are printed, lithographed, typewritten, mimeographed or
otherwise produced, substantially of the tenor of the definitive Warrant
Certificates in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officer
executing such Warrant Certificates may determine, as evidenced by his execution
of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office of
the Warrant Agent or ______________, without charge to the Holder, as defined in
Section 1.06 hereof. Upon surrender for cancellation of any one or more
temporary Warrant Certificates, the Company shall execute and the Warrant Agent
shall countersign and deliver in exchange therefor definitive Warrant
Certificates representing the same aggregate number of Stock Warrants. Until so
exchanged, the temporary Warrant Certificates shall in all respects be entitled
to the same benefits under this Agreement as definitive Warrant Certificates.
Section I.5 Payment of Certain Taxes. The Company will pay all stamp and
------------------------
other duties, if any, to which this Agreement or the original issuance of the
Stock Warrants or Warrant Certificates may be subject under the laws of the
United States of America or any state or locality.
3
<PAGE>
Section I.6 "Holder". The term "Holder" or "Holders" as used herein with
------
reference to a Warrant Certificate shall mean the person or persons in whose
name such Warrant Certificate shall then be registered as set forth in the
Warrant Register to be maintained by the Warrant Agent pursuant to Section 4.01
for that purpose.
ARTICLE II
DURATION AND EXERCISE OF STOCK WARRANTS
Section II.1 Duration of Stock Warrants. Each Stock Warrant may be
--------------------------
exercised at the time or times, or during the period or periods, provided by or
pursuant to the Board Resolution relating thereto and specified in the Warrant
Certificate evidencing such Stock Warrant. Each Stock Warrant not exercised at
or before 5:00 P.M., New York City time, on its Expiration Date shall become
void, and all rights of the Holder of such Stock Warrant thereunder and under
this Agreement shall cease, provided that the Company reserves the right to, and
may, in its sole discretion, at any time and from time to time, at such time or
times as the Company so determines, extend the Expiration Date of the Stock
Warrants for such periods of time as it chooses. Whenever the Expiration Date
of the Stock Warrants is so extended, the Company shall at least [20] days prior
to the then Expiration Date cause to be mailed to the Warrant Agent and the
registered Holders of the Stock Warrants in accordance with the provisions of
Section 6.03 hereof a notice stating that the Expiration Date has been extended
and setting forth the new Expiration Date. No adjustment shall be made for any
dividends on any [Preferred/Common] Shares issuable upon exercise of any Stock
Warrant.
Section II.2 Exercise of Stock Warrants. (a) The Holder of a Stock
--------------------------
Warrant shall have the right, at its option, to exercise such Stock Warrant and,
subject to subsection (f) of this Section 2.02, purchase the number of
[Preferred/Common] Shares provided for therein at the time or times or during
the period or periods referred to in Section 2.01 and specified in the Warrant
Certificate evidencing such Stock Warrant. No fewer than the minimum number of
Stock Warrants as set forth in the Warrant Certificate may be exercised by or on
behalf of any one Holder at any one time. Except as may be provided in a
Warrant Certificate, a Stock Warrant may be exercised by completing the form of
election to purchase set forth on the reverse side of the Warrant Certificate,
by duly executing the same, and by delivering the same, together with payment in
full of the Warrant Price, in lawful money of the United States of America, in
cash or by certified or official bank check or by bank wire transfer, to the
Warrant Agent. Except as may be provided in a Warrant Certificate, the date on
which such Warrant Certificate and payment are received by the Warrant Agent as
aforesaid shall be deemed to be the date on which the Stock Warrant is exercised
and the relevant [Preferred/Common] Shares are issued.
(b) Upon the exercise of a Stock Warrant, the Company shall issue to or
upon the order of the Holder of such Warrant, the [Preferred/Common] Shares to
which such Holder is entitled, registered, in the case of [Preferred/Common]
Shares in registered form, in such name or names as may be directed by such
Holder.
4
<PAGE>
(c) If fewer than all of the Stock Warrants evidenced by a Warrant
Certificate are exercised, the Company shall execute, and an authorized officer
of the Warrant Agent shall countersign and deliver, a new Warrant Certificate
evidencing the number of Stock Warrants remaining unexercised.
(d) The Warrant Agent shall deposit all funds received by it in payment
of the Warrant Price for Stock Warrants in the account of the Company maintained
with it for such purpose and shall advise the Company by telephone by 5:00 P.M.,
New York City time, of each day on which a payment of the Warrant Price for
Warrants is received of the amount so deposited in its account. The Warrant
Agent shall promptly confirm such telephone advice in writing to the Company.
(e) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company of (i) the number of Stock Warrants of each
title exercised as provided herein, (ii) the instructions of each Holder of such
Stock Warrants with respect to delivery of the [Preferred/Common] Shares issued
upon exercise of such Stock Warrants to which such Holder is entitled upon such
exercise, and (iii) such other information as the Company shall reasonably
require. Such notice may be given by telephone to be promptly confirmed in
writing.
(f) The Company will pay all documentary stamp taxes attributable to the
initial issuance of Stock Warrants or to the issuance of [Preferred/Common]
Shares to the registered Holder of such Stock Warrants upon exercise thereof;
provided, however, that the Holder, and not the Company, shall be required to
pay any stamp or other tax or other governmental charge that may be imposed in
connection with any transfer involved in the issuance of the [Preferred/Common]
Shares; and in the event that any such transfer is involved, the Company shall
not be required to issue any [Preferred/Common] Shares (and the Holder's
purchase of the [Preferred/Common] Shares issued upon the exercise of such
Holder's Stock Warrant shall not be deemed to have been consummated) until such
tax or other charge shall have been paid or it has been established to the
Company's satisfaction that no such tax or other charge is due.
Section II.3 Stock Warrant Adjustments. The terms and conditions, if
-------------------------
any, on which the exercise price of and/or the number of [Preferred/Common]
Shares covered by a Stock Warrant are subject to adjustments will be set forth
in the Warrant Certificate and in the Prospectus Supplement relating thereto.
Such terms may include the adjustment mechanism for the exercise price of, and
the number of [Preferred/Common] Shares covered by, a Stock Warrant, the events
requiring such adjustments, the events upon which the Company may, in lieu of
making such adjustments, make proper provisions so that the Holder, upon
exercise of such Holder's Stock Warrant, would be treated as if such Holder had
been a holder of the [Preferred/Common] Shares received upon such exercise,
prior to the occurrence of such events, and provisions affecting exercise of the
Stock Warrants in the event of certain events affecting the [Preferred/Common]
Shares.
5
<PAGE>
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF STOCK WARRANTS
Section III.1 No Rights as Holder of Underlying [Preferred/Common] Shares
-----------------------------------------------------------
Conferred by Stock Warrants or Warrant Certificates. No Stock Warrants or
- ---------------------------------------------------
Warrant Certificates shall entitle the Holder to any of the rights, preferences
and privileges of a holder of the underlying [Preferred/Common] Shares,
including without limitation, any dividend, voting, redemption, conversion,
exchange and liquidation rights.
Section III.2 Lost, Stolen, Destroyed or Mutilated Warrant Certificates.
---------------------------------------------------------
Upon receipt by the Company and the Warrant Agent of evidence reasonably
satisfactory to them of the ownership of and the loss, theft, destruction or
mutilation of any Warrant Certificate and of indemnity (other than in connection
with any mutilated Warrant Certificates surrendered to the Warrant Agent for
cancellation) reasonably satisfactory to them, the Company shall execute, and
Warrant Agent shall countersign and deliver, in exchange for or in lieu of each
lost, stolen, destroyed or mutilated Warrant Certificate, a new Warrant
Certificate evidencing a like number of Stock Warrants of the same title. Upon
the issuance of a new Warrant Certificate under this Section, the Company may
require the payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection therewith and any other
expenses (including the fees and expenses of the Warrant Agent) in connection
therewith. Every substitute Warrant Certificate executed and delivered pursuant
to this Section in lieu of any lost, stolen or destroyed Warrant Certificate
shall represent a contractual obligation of the Company, whether or not such
lost, stolen or destroyed Warrant Certificate shall be at any time enforceable
by anyone, and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates, duly executed and
delivered hereunder, evidencing Stock Warrants of the same title. The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement of lost,
stolen, destroyed or mutilated Warrant Certificates.
Section III.3 Holders of Stock Warrants May Enforce Rights.
--------------------------------------------
Notwithstanding any of the provisions of this Agreement, any Holder may, without
the consent of the Warrant Agent, enforce and may institute and maintain any
suit, action or proceeding against the Company suitable to enforce, or otherwise
in respect of, its right to exercise his Stock Warrants as provided in the Stock
Warrants and in this Agreement.
Section III.4 Merger, Consolidation, Sale, Transfer or Conveyance. (a)
---------------------------------------------------
In case any of the following shall occur while any Stock Warrants are
outstanding: (i) any reclassification or change of the outstanding
[Preferred/Common] Shares; or (ii) any consolidation or merger to which the
Company is party (other than a consolidation or a merger in which the Company is
the continuing corporation and which does not result in any reclassification of,
or change in, the
6
<PAGE>
outstanding [Preferred/Common] Shares issuable upon exercise of the Stock
Warrants); or (iii) any sale, conveyance or lease to another corporation of the
property of the Company as an entirety or substantially as an entirety; then the
Company, or such successor or purchasing corporation, as the case may be, shall
make appropriate provision by amendment of this Agreement or otherwise so that
the Holders of the Stock Warrants then outstanding shall have the right at any
time thereafter, upon exercise of such Stock Warrants, to purchase the kind and
amount of capital shares and other securities and property receivable upon such
a reclassification, change, consolidation, merger, sale, conveyance or lease as
would be received by a holder of the number of [Preferred/Common] Shares
issuable upon exercise of such Stock Warrant immediately prior to such
reclassification, change, consolidation, merger, sale, conveyance or lease, and,
in the case of a consolidation, merger, sale, conveyance or lease, the Company
shall thereupon be relieved of any further obligation hereunder or under the
Stock Warrants, and the Company as the predecessor corporation may thereupon or
at any time thereafter be dissolved, wound up or liquidated. Such successor or
assuming corporation thereupon may cause to be signed, and may issue either in
its own name or in the name of the Company, any of all of the Stock Warrants
issuable hereunder which theretofore shall not have been signed by the Company,
and may execute and deliver [Preferred/Common] Shares in its own name, in
fulfillment of its obligations to deliver Shares upon exercise of the Stock
Warrants. All the Stock Warrants so issued shall in all respects have the same
legal rank and benefit under this Agreement as the Stock Warrants theretofore or
thereafter issued in accordance with the terms of this Agreement as though all
of such Stock Warrants had been issued at the date of the execution hereof. In
any case of any such reclassification, change, consolidation, merger,
conveyance, transfer or lease, such changes in phraseology and form (but not in
substance) may be made in the Stock Warrants thereafter to be issued as may be
appropriate.
(b) The Stock Warrant Agent may receive a written opinion of legal
counsel as conclusive evidence that any such merger, consolidation, sale,
transfer, conveyance or other disposition of substantially all of the assets of
the Company complies with the provisions of this Section 3.04.
ARTICLE IV
EXCHANGE AND TRANSFER OF STOCK WARRANTS
Section IV.1 Stock Warrant Register; Exchange and Transfer of Stock
------------------------------------------------------
Warrants. The Warrant Agent shall maintain, at its corporate trust office or at
- --------
__________ ________, a register (the "Warrant Register") in which, upon the
issuance of Stock Warrants and, subject to such reasonable regulations as the
Warrant Agent may prescribe, it shall register Warrant Certificates and
exchanges and transfers thereof. The Warrant Register shall be in written form
or in any other form capable of being converted into written form within a
reasonable time.
Except as provided in the following sentence, upon surrender at the
corporate trust office of the Warrant Agent or at _________ __________, Warrant
Certificates may be exchanged for one or more other Warrant Certificates
evidencing the same aggregate number of Stock Warrants of the same title, or may
be transferred in whole or in part. A transfer shall be
7
<PAGE>
registered upon surrender of a Warrant Certificate to the Warrant Agent at its
corporate trust office or at __________ __________ for transfer, properly
endorsed or accompanied by appropriate instruments of transfer and written
instructions for transfer, all in form satisfactory to the Company and the
Warrant Agent, duly signed by the registered holder or holders thereof or by the
duly appointed legal representative thereof or by a duly authorized attorney,
such signature to be guaranteed by (a) a bank or trust company, (b) a broker or
dealer that is a member of the National Association of Securities Dealers, Inc.
(the "NASD") or (c) a member of a national securities exchange. Upon any such
registration of transfer, a new Warrant Certificate shall be issued to the
transferee. Whenever a Warrant Certificate is surrendered for exchange or
transfer, the Warrant Agent shall countersign and deliver to the person or
persons entitled thereto one or more Warrant Certificates duly executed by the
Company, as so requested. The Stock Warrant Agent shall not be required to
effect any exchange or transfer which will result in the issuance of a Warrant
Certificate evidencing a fraction of a Stock Warrant. All Warrant Certificates
issued upon any exchange or transfer of a Warrant Certificate shall be the valid
obligations of the Company, evidencing the same obligations, and entitled to the
same benefits under this Agreement, as the Warrant Certificate surrendered for
such exchange or transfer.
No service charge shall be made for any exchange or transfer of Stock
Warrants, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any such
exchange or transfer, in accordance with Section 2.02(f) hereof.
Section IV.2 Treatment of Holders of Warrant Certificates.
--------------------------------------------
The Company and the Warrant Agent may treat the registered Holder of a
Warrant Certificate as the absolute Holder thereof for any purpose and as the
person entitled to exercise the rights represented by the Stock Warrants
evidenced thereby, any notice to the contrary notwithstanding.
Section IV.3 Cancellation of Warrant Certificates. In the event that the
------------------------------------
Company shall purchase, redeem or otherwise acquire any Stock Warrants after the
issuance thereof, the Warrant Certificate or Warrant Certificates evidencing
such Stock Warrants shall thereupon be delivered to the Warrant Agent and be
cancelled by it. The Warrant Agent shall also cancel any Warrant Certificate
(including any Warrant Certificate) delivered to it for exercise, in whole or in
part, or for exchange or transfer. Warrant Certificates so cancelled shall be
delivered by the Warrant Agent to the Company from time to time, or disposed of
in accordance with the instructions of the Company.
ARTICLE V
CONCERNING THE WARRANT AGENT
Section V.1. Warrant Agent. The Company hereby appoints
-------------
__________________ as Warrant Agent of the Company in respect of the Stock
Warrants upon the terms and subject to
8
<PAGE>
the conditions set forth herein, and __________________ hereby accepts such
appointment. The Warrant Agent shall have the powers and authority granted to
and conferred upon it in the Warrant Certificates and hereby, and such further
powers and authority acceptable to it to act on behalf of the Company as the
Company may hereafter grant to or confer upon it. All of the terms and
provisions with respect to such powers and authority contained in the Warrant
Certificates are subject to and governed by the terms and provisions hereof.
Section V.2 Conditions of Warrant Agent's Obligations. The Warrant Agent
-----------------------------------------
accepts its obligations set forth herein upon the terms and conditions hereof,
including the following, to all of which the Company agrees and to all of which
the rights hereunder of the Holders shall be subject:
(a) Compensation and Indemnification. The Company agrees to promptly pay
the Warrant Agent the compensation set forth in Exhibit A hereto and to
reimburse the Warrant Agent for reasonable out-of-pocket expenses (including
counsel fees) incurred by the Warrant Agent in connection with the services
rendered hereunder by the Warrant Agent. The Company also agrees to
indemnify the Warrant Agent for, and to hold it harmless against, any loss,
liability or expense (including the reasonable costs and expenses of
defending against any claim of liability) incurred without negligence or bad
faith on the part of the Warrant Agent arising out of or in connection with
its appointment, status or service as Warrant Agent hereunder.
(b) Agent for the Company. In acting under this Agreement and in
connection with any Warrant Certificate, the Warrant Agent is acting solely
as agent of the Company and does not assume any obligation or relationship of
agency or trust for or with any Holder.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory to
it, and the advice of such counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or omitted by it in
reliance upon any notice, direction, consent, certificate, affidavit,
statement or other paper or document reasonably believed by it to be genuine
and to have been presented or signed by the proper parties.
(e) Officer's Certificate. Whenever in the performance of its duties
hereunder the Warrant Agent shall reasonably deem it necessary that any fact
or matter be proved or established by the Company prior to taking, suffering
or omitting any action hereunder, the Warrant Agent may (unless other
evidence in respect thereof be herein specifically prescribed), in the
absence of bad faith on its part, rely upon a certificate signed by the
Chairman of the Board of Directors, the Vice Chairman of the Board of
Directors, the President, an Executive Vice President, the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Company
(an "Officer's Certificate") delivered by the Company to the Warrant Agent.
9
<PAGE>
(f) Actions Through Agents. The Warrant Agent may execute and exercise
any of the rights or powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorneys or agents, and the Warrant Agent
shall not be answerable or accountable for any act, default, neglect or
misconduct of any such attorney or agent or for any loss to the Company
resulting from such neglect or misconduct; provided, however, that reasonable
care shall have been exercised in the selection and continued employment of
such attorneys and agents.
(g) Certain Transactions. The Warrant Agent, and any officer, director
or employee thereof, may become the owner of, or acquire any interest in, any
Stock Warrant, with the same rights that he, she or it would have if it were
not the Warrant Agent, and, to the extent permitted by applicable law, he,
she or it may engage or be interested in any financial or other transaction
with the Company and may serve on, or as depository, trustee or agent for,
any committee or body of holders of [Preferred/Common] Shares or other
obligations of the Company as if it were not the Warrant Agent.
(h) No Liability For Interest. The Warrant Agent shall not be liable for
interest on any monies at any time received by it pursuant to any of the
provisions of this Agreement or of the Warrant Certificates, except as
otherwise agreed with the Company.
(i) No Liability For Invalidity. The Warrant Agent shall incur no
liability with respect to the validity of this Agreement (except as to the
due execution hereof by the Warrant Agent) or any Warrant Certificate (except
as to the countersignature thereof by the Warrant Agent).
(j) No Responsibility For Company Representations. The Warrant Agent
shall not be responsible for any of the recitals or representations contained
herein (except as to such statements or recitals as describe the Warrant
Agent or action taken or to be taken by it) or in any Warrant Certificate
(except as to the Warrant Agent's countersignature on such Warrant
Certificate), all of which recitals and representations are made solely by
the Company.
(k) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are specifically set forth herein, and no other
duties or obligations shall be implied. The Warrant Agent shall not be under
any obligation to take any action hereunder that may subject it to any
expense or liability, the payment of which within a reasonable time is not,
in its reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the Company of
any Warrant Certificate countersigned by the Warrant Agent and delivered by
it to the Company pursuant to this Agreement or for the application by the
Company of the proceeds of the issuance or exercise of Stock Warrants. The
Warrant Agent shall have no duty or responsibility in case of any default by
the Company in the performance of its covenants or agreements contained
herein or in any Warrant Certificate or in case of the receipt of any written
demand from a Holder with respect to such default, including, without
limiting the generality of the foregoing, any duty or responsibility to
initiate or attempt to initiate any proceedings at law or otherwise or,
except as provided in Section 6.02 hereof, to make any demand upon the
Company.
10
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Section V.3 Resignation and Removal; Appointment of Successor. (a) The
-------------------------------------------------
Company agrees, for the benefit of the Holders of the Stock Warrants, that there
shall at all times be a Warrant Agent hereunder until all the Stock Warrants are
no longer exercisable.
(b) The Warrant Agent may at any time resign as such by giving written
notice to the Company, specifying the date on which its desired resignation
shall become effective; provided that such date shall not be less than [90] days
after the date on which such notice if given unless the Company agrees to accept
a shorter notice. The Warrant Agent hereunder may be removed at any time by the
filing with it of an instrument in writing signed by or on behalf of the Company
and specifying such removal and the date when it shall become effective.
Notwithstanding the provisions of this Section 5.03(b), such resignation or
removal shall take effect upon the appointment by the Company, as hereinafter
provided, of a successor Warrant Agent (which shall be a banking institution
organized and doing business under the laws of the United States of America, any
State thereof or the District of Columbia, authorized under the laws of such
jurisdiction to exercise corporate trust powers and having at the time of its
appointment as Warrant Agent a combined capital and surplus (as set forth in its
most recent published report of financial condition) of at least
[$50,000,000])and the acceptance of such appointment by such successor Warrant
Agent. In the event a successor Warrant Agent has not been appointed and has
not accepted its duties within [90] days of the Warrant Agent's notice of
resignation, the Warrant Agent may apply to any court of competent jurisdiction
for the designation of a successor Warrant Agent. The obligations of the
Company under Section 5.02(a) shall continue to the extent set forth therein
notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall file a petition seeking
relief under Title 11 of the United States Code, as now constituted or hereafter
amended or under any other applicable federal or state bankruptcy law or similar
law, or make an assignment for the benefit of its creditors or consent to the
appointment of a receiver or custodian of all or any substantial part of its
property, or shall admit in writing its inability to pay or meet its debts as
they mature, or if a receiver or custodian of it or all or any substantial part
of its property shall be appointed, or if an order of any court shall be entered
for relief against it under the provisions of Title 11 of the United States
Code, as now constituted or hereafter amended, or under any other applicable
federal or state bankruptcy or similar law, or if any public officer shall have
taken charge or control of the Warrant Agent or of its property or affairs, for
the purpose of rehabilitation, conservation or liquidation, a successor Warrant
Agent, qualified as aforesaid, shall be appointed by the Company by an
instrument in writing, filed with the successor Warrant Agent. Upon the
appointment as aforesaid of a successor Warrant Agent and acceptance by the
latter of such appointment, the Warrant Agent so superseded shall cease to be
Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Warrant Agent
11
<PAGE>
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over,
and such successor Warrant Agent shall be entitled to receive all moneys,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be merged
or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all of the assets and business of the Warrant Agent, provided that such
Corporation shall be qualified as aforesaid, shall be the successor Warrant
Agent under this Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
Section V.4 Compliance With Applicable Laws. The Warrant Agent agrees to
-------------------------------
comply with all applicable federal and state laws imposing obligations on it in
respect of the services rendered by it under this Warrant Agreement and in
connection with the Stock Warrants, including (but not limited to) the
provisions of United States federal income tax laws regarding information
reporting and backup withholding. The Warrant Agent expressly assumes all
liability for its failure to comply with any such laws imposing obligations on
it, including (but not limited to) any liability for failure to comply with any
applicable provisions of United States federal income tax laws regarding
information reporting and backup withholding.
Section V.5 Office. The Company will maintain an office or agency where
------
Warrant Certificates may be presented for exchange, transfer or exercise. The
office initially designated for this purpose shall be the corporate trust office
of the Warrant Agent at ________________.
ARTICLE VI
MISCELLANEOUS
Section VI.1 Supplements and Amendments. (a) The Company and Warrant
--------------------------
Agent may from time to time supplement or amend this Agreement without the
approval or consent of any Holder in order to cure any ambiguity, to correct or
supplement any provision contained herein that may be defective or inconsistent
with any other provisions herein, or to make any other provision in regard to
matters or questions arising hereunder that the Company and the Warrant Agent
may deem necessary or desirable and that shall not adversely affect the
interests of the Holders. Every Holder of Stock Warrants, whether issued before
or after any such supplement or amendment, shall be bound thereby. Promptly
after the effectiveness of any supplement or amendment that affects the interest
of the Holders, the Company shall give notice thereof, as provided in Section
6.03 hereof, to the Holders affected thereby, setting forth in general terms the
substance of such supplement or amendment.
12
<PAGE>
(b) The Company and the Warrant Agent may modify or amend this Agreement
and the Warrant Certificates with the consent of the Holders of not fewer than a
majority in number of the underlying [Preferred/Common] Shares affected by such
modification or amendment, for any purpose; provided, however, that no such
modification or amendment that shortens the period of time during which the
Stock Warrants may be exercised, or otherwise materially and adversely affects
the exercise rights of the Holders or reduces the percentage of Holders of
outstanding Stock Warrants the consent of which is required for modification or
amendment of this Agreement or the Stock Warrants, may be made without the
consent of each Holder affected thereby.
Section VI.2 Notices and Demands to the Company and Warrant Agent. If
----------------------------------------------------
the Warrant Agent shall receive any notice or demand addressed to the Company by
any Holder pursuant to the provisions of the Warrant Certificates, the Warrant
Agent shall promptly forward such notice or demand to the Company.
Section VI.3 Addresses for Notices. Any communications from the Company
---------------------
to the Warrant Agent with respect to this Agreement shall be addressed to [name
of Warrant Agent, _______________, Attention: Corporate Trust Department;] any
communications from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to Global Crossing Ltd., 45 Reid Street, Hamilton
HM12, Bermuda, attention of General Counsel; or such other addresses as shall be
specified in writing by the Warrant Agent or by the Company, as the case may be.
Section VI.4 Governing Law. This Agreement and the Stock Warrants shall
-------------
be governed by the laws of the State of New York applicable to contracts made
and to be performed entirely within such State.
Section VI.5 Governmental Approvals. The Company will from time to time
----------------------
use all reasonable best efforts to obtain and keep effective any and all
permits, consents and approvals of governmental agencies and authorities and the
national securities exchange on which the Stock Warrants may be listed or
authorized for trading from time to time and will make all filings under the
federal and state securities laws (including, without limitation, the
maintenance of the effectiveness of the registration statement in respect of the
[Preferred/Common] Shares under the Securities Act of 1933), as may be or become
requisite in connection with the issuance, sale, trading, transfer or delivery
of the Stock Warrants and Warrant Certificates, the exercise of the Stock
Warrants and the issuance, sale and delivery of the underlying
[Preferred/Common] Shares issued upon the exercise of the Stock Warrants.
Section VI.6 Persons Having Rights Under Stock Warrant Agreement.
---------------------------------------------------
Nothing in this Agreement expressed or implied and nothing that may be inferred
from any of the provisions hereof is intended, or shall be construed, to confer
upon, or give to, any person or corporation other than the Company, the Warrant
Agent and the Holders any right, remedy or claim under or by reason of this
Agreement or of any covenant, condition, stipulation, promise or agreement
hereof; and all covenants, conditions, stipulations, promises and agreements in
this Agreement
13
<PAGE>
contained shall be for the sole and exclusive benefit of the Company and the
Warrant Agent and their respective successors and of the Holders of Warrant
Certificates.
Section VI.7 Delivery of Prospectus/Prospectus Supplement. The Company
--------------------------------------------
will furnish to the Warrant Agent sufficient copies of a prospectus, prospectus
supplement or prospectuses relating to the [Preferred/Common] Shares deliverable
upon exercise of any outstanding Stock Warrants (each a "Prospectus"), and prior
to or concurrent with the delivery of the [Preferred/Common] Shares issued upon
the exercise thereof, a copy of the Prospectus/Prospectus supplement relating to
such [Preferred/ Common] Shares.
Section VI.8 Headings. The descriptive headings of the several Articles
--------
and Sections and the Table of Contents of this Agreement are for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
Section VI.9 Counterparts. This Agreement may be executed by the parties
------------
hereto in any number of counterparts, each of which when so executed and
delivered shall be deemed to be an original; but all such counterparts shall
together constitute but one and the same instrument.
Section VI.10 Inspection of Agreement. A copy of this Agreement shall be
-----------------------
available at all reasonable times at the principal corporate trust office of the
Warrant Agent, for inspection by the Holders of Stock Warrants.
Section VI.11 Consolidation, Merger or Amalgamation of the Company and
--------------------------------------------------------
Conveyance or Transfer Permitted Subject to Certain Conditions. [If Preferred
- --------------------------------------------------------------
Shares underlie Stock WarrantsCTo the extent permitted in the Certificate of
Designations, the Company may consolidate with or merge or amalgamate into
another corporation or other entity, or convey or transfer all or substantially
all of its properties and assets to any other corporation or other entity.]
Section VI.12 Rights and Duties of Successor Corporation. In case of any
------------------------------------------
such consolidation, merger, conveyance or transfer and upon any assumption of
the duties and obligations of the Company by the successor corporation, such
successor corporation shall succeed to and be substituted for the Company, with
the same effect as if it had been named herein, and the Company shall be
relieved of any further obligation under this Agreement and the Stock Warrants.
Such successor corporation thereupon may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of the
Preferred Shares underlying the Stock Warrants and issuable pursuant to the
terms hereof. All such Preferred Shares so issued shall in all respects have
the same legal rank and benefit as the Preferred Shares theretofore or
thereafter issued in accordance with the terms of this Agreement and the
Certificate of Designations.
In case of any such consolidation, merger, conveyance or transfer, such
changes in phraseology and form (but not in substance) may be made in the
Preferred Shares thereafter to be issued as may be appropriate.
14
<PAGE>
Section 6.13 Consent to Jurisdiction and Service. To the fullest extent
-----------------------------------
permitted by applicable law, the Company hereby 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 or any 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 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
AProcess Agent@) as the authorized agent of the Company, 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 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. 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. To the extent the Company
has or hereafter may acquire any immunity from jurisdiction of any court or from
any legal process (whether through service of notice, 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.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
GLOBAL CROSSING LTD.,
a Bermuda company
Seal
Attest: By: __________________________
Name and Title
______________________________
NAME AND TITLE:
15
<PAGE>
STOCK WARRANT AGENT
Seal
By: __________________________
Attest: Name and Title
_____________________________
NAME AND TITLE:
16
<PAGE>
Exhibit A
to Stock Warrant Agreement
dated as of ____________, 19__
[Compensation of Warrant Agent]
<PAGE>
Exhibit 4.12
(Face of Note)
[Insert the Global Note Legends, if applicable pursuant to
the provisions of the Indenture]
[Insert Original Issue Discount Legend]
CUSIP
[ ]% [Series __] [Senior][Subordinated] Notes due [ ]
No. $
GLOBAL CROSSING LTD.
promises to pay to Cede & Co.
or registered assigns, the principal sum of
Dollars on _________________________.
Interest Payment Dates: __________________________
Record Dates: __________________________
GLOBAL CROSSING LTD.
By:
Name:
Title:
By:
Name:
Title:
This is one of the
Notes referred to in the
within-mentioned Indenture:
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By: Dated: November 19, 1999
Name:
Title:
<PAGE>
2
(Back of Note)
[ ]% [Series __] [Senior][Subordinated] Notes due [ ]
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated. For the
purposes of this Note, the term "Notes" shall refer only to the Company's [ ]%
[Senior][Subordinated] Notes due [ ].
1. INTEREST.
Global Crossing Ltd., a Bermuda company (the "Company"),
promises to pay interest on the principal amount of this Note at [ ]% per annum
from ____________ until maturity. The Company shall pay interest semi-annually
on _________________ of each year, or if any such day is not a Business Day, on
the next succeeding Business Day (each an "Interest Payment Date"). Interest on
the Notes shall accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from the date of issuance; provided that if
there is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided, further, that the first Interest
Payment Date shall be________________. The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand at a rate that is
1.0% per annum in excess of the rate then in effect; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Special Interest (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
2. METHOD OF PAYMENT.
The Company shall pay interest on the Notes (except defaulted
interest) to the Persons who are registered Holders of Notes at the close of
business on the ____________________ next preceding the Interest Payment Date,
even if such Notes are canceled after such record date and on or before such
Interest Payment Date, except as provided in Section _______ of the Indenture
with respect to defaulted interest. The Notes shall be payable as to principal,
premium, if any, and interest at the office or agency of the Company maintained
for such purpose within or without the City and State of New York, or, at the
option of the Company, payment of interest may be made by check mailed to the
Holders at their addresses set forth in the register of Holders, and provided
that payment by wire transfer of immediately available funds shall be required
with respect to principal of and interest, premium and Special Interest on, all
Global Notes and all other Notes the Holders of which shall have provided wire
transfer instructions to the Company or the Paying Agent. Such payment shall be
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR.
Initially, United States Trust Company of New York, the
Trustee under the Indenture, shall act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to any Holder.
The Company or any of its Restricted Subsidiaries may act in any such capacity.
<PAGE>
3
4. INDENTURE.
The Company issued the Notes under an Indenture dated as
of______________ ("Indenture") between the Company and the Trustee. The terms of
the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code ss.ss. 77aaa-77bbbb) (the "TIA"). The Notes are subject to all such terms,
and Holders are referred to the Indenture and the TIA for a statement of such
terms. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and be
controlling. The Notes are obligations of the Company limited to $______ million
in aggregate principal amount.
5. OPTIONAL REDEMPTION.
i. Except as set forth below, the Notes shall not be
redeemable at the Company's option at any time.
ii. Any redemption pursuant to this Section 5 shall be
made pursuant to the provisions of Sections _______ through _______ of the
Indenture.
6. OPTIONAL TAX REDEMPTION.
The Notes shall be subject to redemption at the option of the
Company or a successor corporation at any time, in whole but not in part, upon
not less than 30 nor more than 60 days' notice, at a redemption price equal to
the principal amount thereof, plus accrued and unpaid interest thereon to the
redemption date if, as a result of any change in or amendment to the laws or any
regulations or ruling promulgated thereunder of (x) Bermuda or any political
subdivision or governmental authority thereof or therein having the power to
tax, (y) any jurisdiction, other than the United States, from or through which
payment on the Notes is made by the Company or a successor corporation, or its
paying agent in its capacity as such or any political subdivision or
governmental authority thereof or therein having the power to tax or (z) any
other jurisdiction, other than the United States, in which the Company or a
successor corporation is organized, or any political subdivision or governmental
authority thereof or therein having the power to tax, or any change in the
official application or interpretation of such laws, regulations or rulings, or
any change in the official application or interpretation of, or any execution of
or amendment to, any treaty or treaties affecting taxation to which such
jurisdiction (or such political subdivision or taxing authority) is a party (a
"Change in Tax Law"), which becomes effective on or after November 12, 1999, the
Company or a successor corporation is or would be required on the next
succeeding interest payment date to pay Additional Amounts with respect to the
Notes (as described under Section 7 hereof), and the payment of such Additional
Amounts cannot be avoided by the use of any reasonable measures available to the
Company or a successor corporation.
In addition, the Notes shall be subject to redemption at the
option of the Company at any time, in whole but not in part, upon not less than
30 nor more than 60 days' notice, at a redemption price equal to the principal
amount thereof, plus accrued and unpaid interest thereon to the redemption date,
if the Person formed by a consolidation or amalgamation of the Company or into
which the Company is merged or to which the Company conveys, transfers or leases
its properties and assets substantially as an entirety is required, as a
consequence of such consolidation, amalgamation, merger, conveyance, transfer or
lease and as a consequence of a Change in Tax Law occurring after the date of
such consolidation,
<PAGE>
4
amalgamation, merger, conveyance, transfer or lease, to pay Additional Amounts
in respect of any tax, assessment or governmental charge imposed on any Holder
of Notes.
7. PAYMENT OF ADDITIONAL AMOUNTS.
If any deduction or withholding for any present or future
taxes, assessments or other governmental charges of (x) Bermuda or any political
subdivision or governmental authority thereof or therein having power to tax,
(y) any jurisdiction, other than the United States, from or through which
payment on the Notes is made by the Company or a successor corporation, or its
paying agent in its capacity as such or any political subdivision or
governmental authority thereof or therein having the power to tax or (z) any
other jurisdiction, other than the United States, in which the Company or a
successor corporation is organized, or any political subdivision or governmental
authority thereof or therein having the power to tax shall at any time be
required by such jurisdiction (or any such political subdivision or taxing
authority) in respect of any amounts to be paid by the Company or a successor
corporation under the Notes, the Company or a successor corporation shall pay to
each Holder of Notes as additional interest, such additional amounts
("Additional Amounts") as may be necessary in order that the net amounts paid to
such holder of such Notes who, with respect to any such tax, assessment or other
governmental charge, is not resident in, or a citizen of, such jurisdiction,
after such deduction or withholding, shall be not less than the amount specified
in such Notes to which such Holder is entitled; provided, however, that the
Company or a successor corporation shall not be required to make any payment of
Additional Amounts for or on account of:
i. Any tax, assessment or other governmental charge that would
not have been imposed but for (i) the existence of any present or former
connection between such Holder (or between a fiduciary, settlor, beneficiary,
member or shareholder of, or possessor of a power over, such Holder, if such
Holder is an estate, trust, partnership, limited liability company or
corporation) and the taxing jurisdiction or any political subdivision or
territory or possession thereof or area subject to its jurisdiction, including,
without limitation, such Holder (or such fiduciary, settlor, beneficiary,
member, shareholder or possessor) being or having been a citizen or resident
thereof or being or having been present or engaged in a trade or business
therein or having or having had a permanent establishment therein, (ii) the
presentation of a Note (where presentation is required) for payment on a date
more than 30 days after (x) the date on which such payment became due and
payable or (y) the date on which payment thereof is duly provided for, whichever
occurs later, or (iii) the presentation of a Note for payment in Bermuda or any
political subdivision thereof or therein, unless such Note could not have been
presented for payment elsewhere;
ii. Any estate, inheritance, gift, sales, transfer,
personal property or similar tax, assessment or other governmental charge;
iii. Any tax, assessment or other governmental charge that
is payable otherwise than by withholding from payment of principal of, premium,
if any, or any interest on the Notes;
iv. Any tax, assessment or other governmental charge that is
imposed or withheld by reason of the failure by the Holder or the beneficial
owner of the Note to comply with a request of the Company addressed to the
Holder (i) to provide information, documents or other evidence concerning the
nationality, residence or identity of the Holder or such beneficial owner or
(ii) to make and deliver any declaration or other similar claim (other than a
claim for refund of a tax, assessment or other governmental charge withheld by
the Company) or satisfy any information or reporting requirements,
<PAGE>
5
which, in the case of (i) or (ii), is required or imposed by a statute, treaty,
regulation or administrative practice of the taxing jurisdiction as a
precondition to exemption from all or part of such tax, assessment or other
governmental charge; or
v. Any combination of items (i), (ii), (iii) and (iv)
above;
nor shall Additional Amounts be paid with respect to any
payment of the principal of, or any premium or interest on, any Note to any
Holder who is a fiduciary or partnership or limited liability company or other
than the sole beneficial owner of such payment to the extent such payment would
be required by the laws of (x) Bermuda or any political subdivision or
governmental authority thereof or therein having the power to tax, (y) any
jurisdiction, other than the United States, from or through which payment on the
Notes is made by the Company or a successor corporation, or its paying agent in
its capacity as such or any political subdivision or governmental authority
thereof or therein having the power to tax or (z) any other jurisdiction, other
than the United States, in which the Company or a successor corporation is
organized, or any political subdivision or governmental authority thereof or
therein having the power to tax to be included in the income for tax purposes of
a beneficiary or settlor with respect to such fiduciary or a member of such
partnership, limited liability company or beneficial owner who would not have
been entitled to such Additional Amounts had it been the Holder of such Note.
The Company shall provide the Trustee with the official
acknowledgment of the relevant taxing authority (or, if such acknowledgment is
not available, a certified copy thereof) evidencing the payment of the
withholding taxes, if any, by the Company. Copies of such documentation shall be
made available to the Holders of the Notes or the Paying Agent, as applicable,
upon request therefor.
All references in the Indenture to principal of, premium, if
any, and interest on the Notes shall include any Additional Amounts payable by
the Company in respect of such principal, such premium, if any, and such
interest.
8. DENOMINATIONS, TRANSFER, EXCHANGE.
The Notes are in registered form without coupons in
denominations of $1,000 and integral multiples of $1,000. The transfer of Notes
may be registered and Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a
Holder to pay any taxes and fees required by law or permitted by the Indenture.
The Company need not exchange or register the transfer of any Note or portion of
a Note selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, the Company need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes to be
redeemed or during the period between a record date and the corresponding
Interest Payment Date.
9. PERSONS DEEMED OWNERS.
The registered Holder of a Note may be treated as its owner
for all purposes under the Indenture.
10. AMENDMENT, SUPPLEMENT AND WAIVER.
<PAGE>
6
Subject to certain exceptions, the Indenture or the Notes may
be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the then outstanding Notes voting as a single
class, and any existing default or compliance with any provision of the
Indenture, the Notes may be waived with the consent of the Holders of a majority
in principal amount of the then outstanding Notes voting as a single class.
Without the consent of any Holder of a Note, the Indenture or the Notes may be
amended or supplemented to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Notes in addition to or in place of certificated
Notes, to provide for the assumption of the Company's obligations to Holders of
the Notes in case of a merger, amalgamation or consolidation, to make any change
that would provide any additional rights or benefits to the Holders of the Notes
or that does not adversely affect the legal rights under the Indenture of any
such Holder, to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the TIA.
11. DEFAULTS AND REMEDIES.
i. Events of Default under the Indenture include:
12. TRUSTEE DEALINGS WITH COMPANY.
The Trustee, in its individual or any other capacity, may make
loans to, accept deposits from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company or its Affiliates, as if it
were not the Trustee.
13. NO RECOURSE AGAINST OTHERS.
A director, officer, employee, incorporator or shareholder, of
the Company, as such, shall not have any liability for any obligations of the
Company under the Notes, any Guarantee or the Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder by accepting a Note waives and releases all such liability. The waiver
and release are part of the consideration for the issuance of the Notes.
14. AUTHENTICATION.
This Note shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.
15. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder or
an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entirety), JT TEN (= joint tenants with right of survivorship and not as tenants
in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
16. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL
NOTES AND RESTRICTED DEFINITIVE NOTES.
In addition to the rights provided to Holders of Notes under
the Indenture, Holders of Notes shall have all the rights set forth in the
Registration Rights Agreement.
<PAGE>
7
17. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers
to be printed on the Notes and the Trustee may use CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture and/or the Registration Rights
Agreement. Requests may be made to:
Global Crossing Holdings Ltd.
Wessex House
45 Reid Street
Hamilton HM 12, Bermuda
Attention: Secretary of the Company
18. [ADDITIONAL PROVISIONS TO BE INCLUDED CONSISTENT WITH
THE TERMS OF EACH SERIES OF NOTES]
<PAGE>
8
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Date: Your Signature:
- --------------------------------------------------------------------------------
Sign exactly as your name
appears on the face of this Note)
Tax Identification No:
SIGNATURE GUARANTEE:
---------------------------------
Signatures must be
guaranteed by an "eligible
guarantor institution"
meeting the requirements of
the Registrar, which
requirements include
membership or participation
in the Security Transfer
Agent Medallion Program
("STAMP") or such other
"signature guarantee
program" as may be
determined by the Registrar
in addition to, or in
substitution for, STAMP,
all in accordance with the
Securities Exchange Act of
1934, as amended.
<PAGE>
9
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE/1/
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Principal Amount
Amount of decrease Amount of increase of this Global Note Signature of
in Principal in Principal following such authorized officer
Amount of this Amount of this decrease of Trustee or
Date of Exchange Global Note Global Note (or increase) Note Custodian
---------------- ----------------------- ---------------------- -------------- ----------------
</TABLE>
- --------
/1/ This should be included only if the Note is issued in global form.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANT
As independent public accountants, we hereby consent to the use of our
reports (and to all references to our Firm) included in or incorporated by
reference in this Pre-Effective Amendment No. 1 to this Registration Statement
on Form S-3.
/s/ Arthur Andersen
March 20, 2000
Hamilton, Bermuda
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Pre-Effective
Amendment No. 1 to this Registration Statement on Form S-3 of Global Crossing
Ltd. of our report dated January 25, 1999 relating to the financial statements,
which appears on page 28 of the 1998 Annual Report to Shareholders of Frontier
Corporation, which is incorporated by reference in Frontier Corporation's Annual
Report on Form 10-K for the year ended December 31, 1998, and which appears on
Page 20 of the Frontier Corporation Current Report on Form 8-K dated January 26,
1999. We also consent to the incorporation by reference of our report dated
January 25, 1999 relating to the Financial Statement Schedule, which appears on
page 30 on such Annual Report on Form 10-K. We also consent to the reference to
us under the headings "Experts" and "Frontier Selected Historical Financial
Information" in such Pre-Effective Amendment No. 1 to such Registration
Statement.
/s/ PricewaterhouseCoopers LLP
- ----------------------------------
PricewaterhouseCoopers LLP
Rochester, New York
March 20, 2000
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the inclusion of our report dated 26 May 1999 with respect to
the balance sheets of Cable & Wireless Global Marine as of 31 March 1999 and
1998 and the results of their operations and cashflows for each of the years in
the three-year period ended 31 March 1999, incorporated by reference into this
Pre-Effective Amendment No. 1 to this Registration Statement on Form S-3, of
Global Crossing Ltd. and to the references to our firm under the headings
"Experts" and "Global Marine systems selected historical financial information"
in this Pre-Effective Amendment No. 1 to this Registration Statement.
Yours faithfully
/s/ KPMG Audit Plc
-------------------------------
KPMG Audit Plc
Ipswich, England
March 20, 2000
<PAGE>
EXHIBIT 23.4
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Pre-Effective Amendment
No. 1 to this Registration Statement on Form S-3 of our report dated 8 October
1999, (2 December 1999 as to note 5 and 17 December 1999 as to notes 29, 30, 31
and 32) on the combined balance sheets of Racal Telecommunications Limited,
Racal Telecommunications Networks Limited, Racal Internet Services Limited and
Racal Telecommunications Inc. (collectively "Racal Telecom") as of 31 March 1999
and 1998 and the combined profit and loss accounts and combined cash flow
statements for each of the years in the three year period ended 31 March 1999,
appearing in the current report on Form 8-K of Global Crossing Ltd. and to the
references to our firm under the headings "Experts" and "Racal Telecom selected
historical financial information" in this Pre-Effective Amendment No. 1 to this
Registration Statement.
Yours faithfully
/s/ Deloitte & Touche
-------------------------------
Deloitte & Touche
London, England
March 20, 2000
<PAGE>
EXHIBIT 23.5
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Pre-Effective
Amendment No. 1 to this Registration Statement on Form S-3 of Global Crossing
Ltd. of our report dated December 15, 1999 relating to the financial statements
of HCL Holdings Limited for each of the three years ended December 31, 1998. We
also consent to the reference to us under the headings "Experts" and "HCL
Holdings Selected Historical Financial Information" in this Pre-Effective
Amendment No. 1 to this Registration Statement.
/s/ PricewaterhouseCoopers
- ----------------------------------
PricewaterhouseCoopers
Hong Kong
March 20, 2000
