Common use of Covenants of the Company and the Trust Clause in Contracts

Covenants of the Company and the Trust. In further consideration of -------------------------------------- the agreements of the Underwriters contained herein, the Offerors, jointly and severally, covenant with each Underwriter as follows: (a) To furnish the Representatives, without charge, 5 signed copies of the Registration Statement (including exhibits and, upon request, documents incorporated therein by reference) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto but, upon request, including documents incorporated therein by reference) and to furnish to the Representatives in New York City, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of the Underwriting Agreement and during the period mentioned in Section 5(c) hereof, as many copies of the Prospectus and any supplements and amendments thereto or to the Registration Statement as the Representatives may reasonably request. (b) Before amending or supplementing the Registration Statement or the Prospectus with respect to the Offered Securities, to furnish to the Representatives a copy of each such proposed amendment or supplement and not to file or use any such proposed amendment or supplement to which the Representatives reasonably object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule. (c) If, during such period after the first date of the public offering of the Capital Securities as in the opinion of counsel for the Underwriters the Prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with law, forthwith to prepare and furnish, at the Company's own expense, to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company and the Trust) to which Capital Securities may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, 10 in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus, as so amended or supplemented, will comply with law. (d) To endeavor to qualify the Offered Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions in the United States as the Representatives shall reasonably request. (e) To make generally available to the security holders of the Company and the Trust and to the Representatives as soon as practicable an earning statement covering a twelve-month period beginning on the first day of the first full fiscal quarter after the date of the Underwriting Agreement, which earning statement shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder. If such fiscal quarter is the last fiscal quarter of the Company's fiscal year, such earning statement shall be made available not later than 90 days after the close of the period covered thereby and in all other cases shall be made available not later than 45 days after the close of the period covered thereby. (f) During the period beginning on the date of the Underwriting Agreement and continuing to and including the date which is 30 days after the date of the Underwriting Agreement, not to (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any debt securities or preferred stock of the Company or any securities of the Trust or any similar trust or other entity affiliated with the Company, or any securities convertible into or exchangeable or exercisable for any debt securities or preferred stock of the Company or any securities of the Trust or any similar trust or other entity affiliated with the Company or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any preferred stock or debt securities of the Company or any securities of the Trust or any similar trust or other entity affiliated with the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of securities of the Company, the Trust or any similar trust or other entity, any other securities, in cash or otherwise, in each case, without the prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Underwriters; provided that the restrictions set forth in this paragraph shall not apply to the issuance of Capital Securities to the Underwriters, the issuance of Common Securities to the Company or the issuance of Debentures to the Trust. (g) Whether or not any sale of Offered Securities is consummated, the Company will pay or cause to be paid all expenses incident to the performance of the obligations of the Company and the Trust under this Agreement, including: (i) the preparation and filing of the Registration Statement and the Prospectus and all amendments and supplements thereto, (ii) the preparation, issuance, transfer and delivery of the Offered Securities and the Common Securities, including any transfer or other taxes payable thereon, (iii) the fees and disbursements of the Company's counsel and accountants and of the Trust's counsel, (iv) the qualification of the Offered Securities under securities or Blue Sky laws in accordance with the provisions of Section 5(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the printing or producing and delivery of any Blue Sky or Legal Investment memoranda, (v) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Offered Securities by the National Association of Securities Dealers, Inc., (vi) the printing and delivery to the Underwriters in quantities as hereinabove stated of copies of the Registration Statement and all amendments thereto and of the Prospectus and any amendments or supplements thereto, (vii) any fees charged by rating agencies for the rating of the Offered Securities, (viii) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to the Offered Securities and all costs and expenses, if any, incident to listing the Offered Securities on the New York Stock Exchange, (ix) the costs and expenses of the Offerors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Offered Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives, trustees and officers of the Offerors and any such consultants, and the cost of any aircraft chartered in connection with the road show, (x) all fees and expenses of the Property Trustee, the Delaware Trustee, the Guarantee Trustee and the Indenture Trustee, including fees and disbursements of their respective counsel, and (xi) all other costs and expenses incident to the performance of the obligations of the Offerors hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 6 entitled "Indemnity and Contribution", and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, stock transfer taxes payable on resale of any of the Capital Securities by them and any advertising expenses connected with any offers they may make.

Covenants of the Company and the Trust. In further consideration of -------------------------------------- the agreements Each of the Underwriters contained hereinCompany and the Trust covenants with the Representatives, the Offerors, jointly and severally, covenant with each Underwriter participating in the offering of Underwritten Securities, as follows: (a) To furnish Immediately following the Representativesexecution of the Terms Agreement, without chargethe Company will prepare a Prospectus Supplement setting forth the principal amount of Debt Securities and/or number of Preferred Securities covered thereby and their material terms not otherwise specified in the respective Indentures or the Declaration, 5 signed as the case may be, pursuant to which the Debt Securities or Preferred Securities, as the case may be, are being issued, the names of the Underwriters participating in the offering and the principal amount of Debt Securities or number of Preferred Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters from the Company and/or the Trust, the initial public offering price, the selling concession and reallowance, if any, and such other information as the Representatives and the Company deem appropriate in connection with the offering of the Underwritten Securities. The Company will promptly transmit copies of the Registration Statement (including exhibits and, upon request, documents incorporated therein by reference) and Prospectus Supplement to the Commission for delivery filing pursuant to each other Underwriter a conformed copy Rule 424 of the Registration Statement (without exhibits thereto but, upon request, including documents incorporated therein by reference) Regulations and to will furnish to the Representatives in New York City, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of the Underwriting Agreement and during the period mentioned in Section 5(c) hereof, Underwriters named therein as many copies of the Prospectus and any supplements and amendments thereto or to the Registration Statement such Prospectus Supplement as the Representatives may shall reasonably request. (b) Before amending or supplementing the Registration Statement or the Prospectus with respect to the Offered Securities, to furnish to the Representatives a copy of each such proposed amendment or supplement and not to file or use any such proposed amendment or supplement to which the Representatives reasonably object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule. (c) If, during such period after the first date of the public offering of the Capital Securities as in the opinion of counsel for the Underwriters at any time when the Prospectus is required by law the 1933 Act to be delivered in connection with sales by an Underwriter or dealerof the Underwritten Securities, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading, or ifnecessary, in the opinion of counsel for the UnderwritersUnderwriters or counsel for the Company, to further amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading in the light of circumstances existing at the time it is necessary delivered to a purchaser or if it shall be necessary, in the opinion of either such counsel, at any such time to amend or supplement the Registration Statement or the Prospectus in order to comply with lawthe requirements of the 1933 Act or the Regulations, forthwith to the Company will promptly prepare and furnishfile with the Commission such amendment or supplement, at the Company's own expense, whether by filing documents pursuant to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company and the Trust) to which Capital Securities may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments 1934 Act or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, 10 in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectusotherwise, as so amended may be necessary to correct such untrue statement or supplemented, will omission or to make the Registration Statement and Prospectus comply with lawsuch requirements. (dc) To endeavor With respect to qualify each sale of Underwritten Securities, the Offered Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions in the United States as the Representatives shall reasonably request. (e) To Company will make generally available to the its security holders of the Company and the Trust and to the Representatives as soon as practicable an earning statement covering a twelve-month period beginning on the first day of the first full fiscal quarter after the date of the Underwriting Agreementpracticable, which earning statement shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder. If such fiscal quarter is the last fiscal quarter of the Company's fiscal year, such earning statement shall be made available but not later than 90 days after the close of the period covered thereby and thereby, earning statements (in all other cases shall be made available form complying with the provisions of Rule 158 under the 0000 Xxx) covering 12-month periods beginning, in each case, not later than 45 days after the close first day of the period covered therebyCompany's fiscal quarter next following the "effective date" (as defined in Rule 158) of the Registration Statement relating to Underwritten Securities. (d) At any time when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Underwritten Securities, the Company will give the Representatives notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1934 Act, the 1933 Act or otherwise, will furnish the Representatives with copies of any such amendment or supplement or other documents proposed to be filed a reasonable time in advance of filing, and will not file any such amendment or supplement or other documents in a form to which the Representatives or counsel for the Underwriters shall reasonably object. (e) At any time when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Underwritten Securities, the Company will notify the Representatives immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any document to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or any supplement to the Prospectus, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (v) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment. (f) During the period beginning on specified in (b) above, the date Company will deliver to the Representatives as many signed and conformed copies of the Underwriting Agreement registration statement (as originally filed) and continuing to of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and including documents incorporated by reference in the date which is 30 days after Prospectus) as the date of the Underwriting Agreement, not to (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any debt securities or preferred stock of the Company or any securities of the Trust or any similar trust or other entity affiliated with the Company, or any securities convertible into or exchangeable or exercisable for any debt securities or preferred stock of the Company or any securities of the Trust or any similar trust or other entity affiliated with the Company or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any preferred stock or debt securities of the Company or any securities of the Trust or any similar trust or other entity affiliated with the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of securities of the Company, the Trust or any similar trust or other entity, any other securities, in cash or otherwise, in each case, without the prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Underwriters; provided that the restrictions set forth in this paragraph shall not apply to the issuance of Capital Securities to the Underwriters, the issuance of Common Securities to the Company or the issuance of Debentures to the TrustRepresentatives may reasonably request. (g) Whether The Company will endeavor in good faith to qualify the Underwritten Securities for offering and sale under the applicable securities laws of such jurisdictions as the Representatives may designate; provided, however, that the Company shall not be obligated to file any general consent to service or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not any so qualified. The Company will maintain such qualifications in effect for as long as may be required for the distribution of the Underwritten Securities. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Underwritten Securities have been qualified as above provided. (h) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act in connection with the sale of Offered the Underwritten Securities, will file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (i) Between the date of the Terms Agreement and the later of termination of any trading restrictions or the Closing Time with respect to the Underwritten Securities is consummatedcovered thereby, the Company will pay not, without the Representative's prior consent, offer to sell, or cause enter into any agreement to be paid all expenses incident to the performance sell, any new issue of the obligations Preferred Securities of the Company and with a maturity of more than one year. (j) The Company has obtained the Trust under this Agreement, including: (i) the preparation and filing authorization of the Registration Statement and the Prospectus and all amendments and supplements thereto, (ii) the preparation, issuance, transfer and delivery of the Offered Securities and the Common Securities, including any transfer or other taxes payable thereon, (iii) the fees and disbursements of the Company's counsel and accountants and of the Trust's counsel, (iv) the qualification of the Offered Securities under securities or Blue Sky laws in accordance with the provisions of Section 5(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the printing or producing and delivery of any Blue Sky or Legal Investment memoranda, (v) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Offered Securities by the National Association of Securities Dealers, Inc., (vi) the printing and delivery to the Underwriters in quantities as hereinabove stated of copies of the Registration Statement and all amendments thereto and of the Prospectus and any amendments or supplements thereto, (vii) any fees charged by rating agencies for the rating of the Offered Securities, (viii) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to the Offered Securities and all costs and expenses, if any, incident to listing the Offered Securities on the New York Stock Exchange, (ix) Exchange to list the costs Preferred Securities thereon and expenses will use its best efforts to effect the listing of the Offerors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Offered Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives, trustees and officers of the Offerors and any such consultants, and the cost of any aircraft chartered in connection with the road show, (x) all fees and expenses of the Property Trustee, the Delaware Trustee, the Guarantee Trustee and the Indenture Trustee, including fees and disbursements of their respective counsel, and (xi) all other costs and expenses incident to the performance of the obligations of the Offerors hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 6 entitled "Indemnity and Contribution", and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, stock transfer taxes payable on resale of any of the Capital Preferred Securities by them and any advertising expenses connected with any offers they may makethereon.

Covenants of the Company and the Trust. In further consideration of -------------------------------------- the agreements of the Underwriters contained hereinInitial Purchaser herein contained, each of the Offerors, jointly Company and severally, covenant the Trust covenants with each Underwriter the Initial Purchaser as follows: (a) To furnish the Representatives, without charge, 5 signed copies of the Registration Statement (including exhibits and, upon request, documents incorporated therein by reference) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto but, upon request, including documents incorporated therein by reference) and to furnish to the Representatives you in New York City, without charge, prior to 10:00 a.m. 5:00 p.m., New York City time time, on the business day next succeeding the date of the Underwriting this Agreement and during the period mentioned in Section 5(c) hereof6(c), as many copies of the Prospectus Final Memorandum, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement as the Representatives you may reasonably request. (b) Before amending or supplementing the Registration Statement or the Prospectus with respect to the Offered Securitieseither Memorandum, to furnish to the Representatives you a copy of each such proposed amendment or supplement and not to file or use any such proposed amendment or supplement to which the Representatives you reasonably object; provided, that the Company and the Trust may use any such proposed amendment or supplement, notwithstanding any such objection, if such use is, in the opinion of counsel for the Company and the Trust, necessary in order that the Final Memorandum, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to file state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or to cause such Final Memorandum, as amended or supplemented, to comply with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rulelaw. (c) If, during such period after the first date hereof and prior to the date on which all of the public offering of Convertible Preferred Securities shall have been sold by the Capital Securities as in the opinion of counsel for the Underwriters the Prospectus is required by law to be delivered in connection with sales by an Underwriter or dealerInitial Purchaser, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus Final Memorandum in order to make the statements therein, in the light of the circumstances existing when the Prospectus Final Memorandum is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the UnderwritersInitial Purchaser, it is necessary to amend or supplement the Prospectus Final Memorandum to comply with applicable law, forthwith to prepare and furnish, at the Company's its own expense, to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company and the Trust) to which Capital Securities may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, Initial Purchaser either amendments or supplements to the Prospectus Final Memorandum so that the statements in the Prospectus such Final Memorandum as so amended or supplemented will not, 10 in the light of the circumstances existing when the Prospectus such Final Memorandum is delivered to a purchaser, be misleading or so that the Prospectussuch Final Memorandum, as so amended or supplemented, will comply with applicable law. (d) To endeavor to qualify the Offered Convertible Preferred Securities, the Guarantee, the Convertible Debentures and the Underlying Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions in the United States as the Representatives you shall reasonably request; provided, that neither Federal-Mogul nor the Trust will be required to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it would not otherwise be required to qualify but for this Agreement, or (ii) take any action that would subject it to general service of process in suits or to taxation in any such jurisdiction where it is not now so subject. (e) To make generally reserve and keep available at all times, free of preemptive rights, sufficient Underlying Securities for the purpose of enabling the Company to satisfy any obligations to issue Underlying Securities upon the security holders conversion of the Company Convertible Debentures and the Trust and to the Representatives as soon as practicable an earning statement covering a twelve-month period beginning on the first day of the first full fiscal quarter after the date of the Underwriting Agreement, which earning statement shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder. If such fiscal quarter is the last fiscal quarter of the Company's fiscal year, such earning statement shall be made available not later than 90 days after the close of the period covered thereby and in all other cases shall be made available not later than 45 days after the close of the period covered therebyConvertible Preferred Securities. (f) During the period beginning on the date of the Underwriting Agreement and continuing to and including the date which is 30 days after the date of the Underwriting Agreement, not to (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any debt securities or preferred stock of the Company or any securities of the Trust or any similar trust or other entity affiliated with the Company, or any securities convertible into or exchangeable or exercisable for any debt securities or preferred stock of the Company or any securities of the Trust or any similar trust or other entity affiliated with the Company or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any preferred stock or debt securities of the Company or any securities of the Trust or any similar trust or other entity affiliated with the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of securities of the Company, the Trust or any similar trust or other entity, any other securities, in cash or otherwise, in each case, without the prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Underwriters; provided that the restrictions set forth in this paragraph shall not apply to the issuance of Capital Securities to the Underwriters, the issuance of Common Securities to the Company or the issuance of Debentures to the Trust. (g) Whether or not any sale of Offered Securities the transactions contemplated in this Agreement are consummated or this Agreement is consummatedterminated, the Company will to pay or cause to be paid all expenses incident to the performance of the obligations of the Company Company's and the Trust Trust's obligations under this Agreement, including: (i) the preparation fees, disbursements and filing expenses of the Registration Statement Company's and the Prospectus Trust's counsel and the Company's and the Trust's accountants in connection with the issuance and sale of the Convertible Preferred Securities and all other fees or expenses in connection with the preparation of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, and the delivering of copies thereof to the Initial Purchaser, in the quantities herein above specified, (ii) all costs and expenses related to the preparation, issuance, transfer and delivery of the Offered Convertible Preferred Securities and to the Common SecuritiesInitial Purchaser, including any transfer or other taxes payable thereon, (iii) the fees cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and disbursements sale of the Company's counsel Convertible Preferred Securities, the Underlying Securities, the Guarantee or the Convertible Debentures under state securities laws and accountants and of the Trust's counsel, (iv) all expenses in connection with the qualification of the Offered Securities Convertible Preferred Securities, the Underlying Securities, the Guarantee or the Convertible Debentures for offer and sale under state securities or Blue Sky laws as provided in accordance with the provisions of Section 5(d6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters Initial Purchaser in connection therewith with such qualification and in connection with the printing or producing and delivery of any Blue Sky or Legal Investment memorandalegal investment memorandum, (v) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Offered Securities by the National Association of Securities Dealers, Inc., (viiv) the printing and delivery to the Underwriters in quantities as hereinabove stated of copies of the Registration Statement and all amendments thereto and of the Prospectus and any amendments or supplements thereto, (vii) any fees charged by rating agencies for the rating of the Offered Securities, (viii) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to the Offered Securities and all costs and expenses, if any, incident to listing incurred in connection with the Offered admission of the Convertible Preferred Securities on the New York Stock Exchangefor trading in PORTAL or any appropriate market system, (ixv) the costs and charges of the Trustee and any transfer agent, registrar or depositary, (vi) the cost of the preparation, issuance and delivery of the Convertible Preferred Securities, the Underlying Securities, the Convertible Debentures and the Guarantee, (vii) the costs and expenses of the Offerors Company relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Offered Convertible Preferred Securities, including, without limitation, reasonable expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior written approval of the Company, travel and lodging expenses of the representatives, trustees representatives and officers of the Offerors Company and any such consultantsconsultants (for the avoidance of doubt, excluding transportation and lodging expenses of any representatives of the Initial Purchaser), and the cost of any aircraft chartered with the prior written approval of the Company in connection with the road show, and (xviii) all fees other cost and expenses of the Property Trustee, the Delaware Trustee, the Guarantee Trustee Company and the Indenture Trustee, including fees and disbursements of their respective counsel, and (xi) all other costs and expenses Trust incident to the performance by the Company and the Trust of the their obligations of the Offerors hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 6 entitled "Indemnity and Contribution"8, and the last paragraph of Section 8 below10, the Underwriters Initial Purchaser will pay all of their its costs and expenses, including fees and disbursements of their its counsel, stock transfer taxes payable on resale of any of the Capital Convertible Preferred Securities by them it and any advertising expenses connected with any offers they it may make. (g) Neither the Company nor any Affiliate will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that could be integrated with the sale of the Convertible Preferred Securities in a manner that would require the registration under the Securities Act of the Convertible Preferred Securities. (h) Not to solicit any offer to buy or offer or sell the Convertible Preferred Securities or the Underlying Securities by means of any form of general solicitation or general advertising (as those terms are defined in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act. (i) While any of the Convertible Preferred Securities or the Underlying Securities remain "restricted securities" within the meaning of the Securities Act, to make available, upon request, to any seller of such Convertible Preferred Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act. (j) During the period of two years after the Closing Date or the Option Closing Date, if later, the Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to resell any of the Securities or the Underlying Securities that constitute "restricted securities" under Rule 144 that have been reacquired by any of them. (k) To use its best efforts to permit the Convertible Preferred Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market. (l) None of the Company, its Affiliates or any person acting on its or their behalf (other than the Initial Purchaser) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Convertible Preferred Securities, and the Company and its Affiliates and each person acting on its or their behalf (other than the Initial Purchaser) will comply with the offering restrictions requirement of Regulation S. (m) To cause the Underlying Securities to be listed or approved for listing on the New York Stock Exchange, Inc. as promptly as practicable, but in any event within 90 days from the later of the Closing Date and the Option Closing Date.

Covenants of the Company and the Trust. In further consideration of -------------------------------------- the agreements of the Underwriters Placement Agents contained hereinin this Agreement, each of the Offerors, jointly Company and severally, covenant the Trust covenants with each Underwriter Placement Agent as follows: (a) To furnish the Representatives, without charge, 5 signed copies of the Registration Statement (including exhibits and, upon request, documents incorporated therein by reference) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto but, upon request, including documents incorporated therein by reference) and use its best efforts to furnish to the Representatives each Placement Agent in New York City, without charge, prior to 10:00 9:00 a.m. New York City time on the business day next succeeding the date of the Underwriting Agreement April 10, 2000 and during the period mentioned in Section 5(c) hereof6(c), as many copies of the Prospectus and Final Memorandum, any supplements and amendments thereto or to the Registration Statement and any documents incorporated by reference therein as the Representatives such Placement Agent may reasonably request. (b) Before amending or supplementing the Registration Statement or the Prospectus with respect to the Offered SecuritiesFinal Memorandum, to furnish to the Representatives each Placement Agent a copy of each such proposed amendment or supplement and not to file or use any such proposed amendment or supplement to without the consent of Morgan Stanley & Xx. Xxcxxxxxxxed, which the Representatives reasonably object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to consent shall not be filed pursuant to such Ruleunreasonably withheld or delayed. (c) If, during such period after the first date hereof and prior to the date on which all of the public offering of Convertible Preferred Securities shall have been sold by the Capital Securities as in the opinion of counsel for the Underwriters the Prospectus is required by law to be delivered in connection with sales by an Underwriter or dealerPlacement Agents, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus Final Memorandum in order to make the statements therein, in the light of the circumstances existing when the Prospectus Final Memorandum is delivered to a purchaser, not misleading, or if, in the opinion of counsel for to the Underwriters, Placement Agents it is necessary to amend or supplement the Prospectus Final Memorandum to comply with applicable law, forthwith to prepare and furnish, at the Company's its own expense, to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company and the Trust) to which Capital Securities may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon requestPlacement Agents, either amendments or supplements to the Prospectus Final Memorandum so that the statements in the Prospectus Final Memorandum as so amended or supplemented will not, 10 in the light of the circumstances existing when the Prospectus Final Memorandum is delivered to a purchaser, be misleading or so that the ProspectusFinal Memorandum, as so amended or supplemented, will comply with applicable law. (d) To endeavor to qualify the Offered Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions in the United States as the Representatives Placement Agents shall reasonably request; PROVIDED THAT in no event shall the Company be obligated to qualify to do business in any jurisdiction in which it is not now so qualified or to take any action which would subject it to taxation in any jurisdiction in which it is not now so subject or to service or process in suits, other than those arising out of the offering or sale of the Offered Securities in any jurisdiction in which it is not now so subject. (e) To make generally reserve and keep available at all times, free of preemptive and similar rights, shares of Viatel Common Stock for the purpose of enabling the Company to satisfy any obligations to issue shares of Viatel Common Stock upon the security holders conversion of the Company Convertible Debentures and the Trust and to the Representatives as soon as practicable an earning statement covering a twelve-month period beginning on the first day of the first full fiscal quarter after the date of the Underwriting Agreement, which earning statement shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder. If such fiscal quarter is the last fiscal quarter of the Company's fiscal year, such earning statement shall be made available not later than 90 days after the close of the period covered thereby and in all other cases shall be made available not later than 45 days after the close of the period covered therebyConvertible Preferred Securities. (f) During the period beginning on the date of the Underwriting Agreement and continuing to and including the date which is 30 days after the date of the Underwriting Agreement, not to (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any debt securities or preferred stock of the Company or any securities of the Trust or any similar trust or other entity affiliated with the Company, or any securities convertible into or exchangeable or exercisable for any debt securities or preferred stock of the Company or any securities of the Trust or any similar trust or other entity affiliated with the Company or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any preferred stock or debt securities of the Company or any securities of the Trust or any similar trust or other entity affiliated with the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of securities of the Company, the Trust or any similar trust or other entity, any other securities, in cash or otherwise, in each case, without the prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Underwriters; provided that the restrictions set forth in this paragraph shall not apply to the issuance of Capital Securities to the Underwriters, the issuance of Common Securities to the Company or the issuance of Debentures to the Trust. (g) Whether or not any sale of Offered Securities the transactions contemplated in this Agreement are consummated or this Agreement is consummatedterminated, the Company will to pay or cause to be paid all reasonable expenses incident to the performance of the its obligations of the Company and the Trust under this Agreement, including: (i) the preparation and filing of the Registration Statement and the Prospectus each Memorandum and all amendments and supplements thereto, (ii) the preparation, issuance, transfer issuance and delivery of the Offered Securities and the Common Securities, including any transfer or other taxes payable thereon, (iii) the fees and disbursements of the Company's and the Trust's counsel and accountants and of the Trust's Institutional Trustee, the Guarantee Trustee and the Indenture Trustee and their respective counsel, (iv) the qualification of the such Offered Securities under securities or Blue Sky laws in accordance with the provisions of Section 5(d) hereof6(d), including filing fees and the reasonable fees and disbursements of one counsel for the Underwriters Placement Agents in connection therewith and in connection with the printing or producing and delivery preparation of any Blue Sky or Legal Investment legal investment memoranda, (v) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Offered Securities by the National Association of Securities Dealers, Inc., (vi) the printing and delivery to the Underwriters Placement Agents in quantities as hereinabove herein above stated of copies of the Registration Statement and all amendments thereto and of the Prospectus each Memorandum and any amendments or supplements thereto, (viivi) any fees charged by rating agencies for the rating of the Offered Securitiesagencies, (viiivii) all fees reasonable document production charges and expenses of one counsel to the Placement Agents (but not including their fees for professional services) in connection with the preparation and filing of this Agreement, (viii) the registration statement on Form 8-A relating to the Offered Securities and all costs fees and expenses, if any, incident to listing incurred in connection with the admission of such Offered Securities on for trading in the New York Stock ExchangePrivate Offerings, Resales and Trading through Automatic Linkages ("PORTAL") Market or any other appropriate market system, (ix) the costs and expenses of the Offerors Company relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Offered Securitiesoffering, whether by traditional or electronic means, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives, trustees representatives and officers of the Offerors Company and any such consultants, and the cost of any aircraft chartered in connection with the road showshow with the prior approval of the Company, (x) all fees and expenses incident to listing the shares of Common Stock issuable upon conversion of the Property Trustee, the Delaware Trustee, the Guarantee Trustee Convertible Preferred Securities and the Indenture TrusteeConvertible Debentures on the Nasdaq National Market, including fees (xi) the costs and disbursements charges of their respective counselany transfer agents, registrars and depositaries, and (xixii) all such other reasonable costs and expenses incident to the performance of the obligations of the Offerors Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this SectionSection 6, Section 6 entitled "Indemnity 8 and Contribution", and the last paragraph of Section 8 below10, the Underwriters Placement Agents will pay all of their costs and expenses, including fees and disbursements of their counsel, stock transfer taxes payable on resale of any of the Capital Convertible Preferred Securities by them and any advertising expenses connected with any offers they may make. (g) Neither the Company nor the Trust nor any of their respective Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which would be integrated with the sale of any of the Offered Securities in a manner which would require the registration under the Securities Act of any of such Offered Securities. (h) Neither the Company nor any Subsidiary will solicit any offer to buy or offer or sell any of the Offered Securities by means of any form of general solicitation or general advertising (within the meaning of Rule 502(c) under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act, except as may be contemplated by the Registration Rights Agreement. (i) While any of the Offered Securities remain "restricted securities" within the meaning of Rule 144 under the Securities Act, to make available, upon request, to any seller of any of such Offered Securities the information concerning the Company and the Trust specified in Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to and in compliance with Section 13 or 15(d) of the Exchange Act. (j) To use its reasonable best efforts to permit the Convertible Preferred Securities and, if the Convertible Debentures are at any time distributed to holders, the Convertible Debentures to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market. (k) The Company shall not, and shall use its best efforts to cause its Affiliates not to, purchase and then resell or otherwise transfer any of the Offered Securities.