EXHIBIT 5.1
[XXXXXXX XXXXXXXX & XXXXX LETTERHEAD]
JC/sd/120148.15
April 24, 2001
Global Crossing Holdings Limited
Wessex House
00 Xxxx Xxxxxx
Xxxxxxxx XX00
Xxxxxxx
Dear Sirs
Global Crossing Ltd. ("GCL") and
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Global Crossing Holdings Limited ("the Company")
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We have acted as legal counsel in Bermuda to GCL and the Company and this
opinion as to Bermuda law is addressed to you in connection with the filing by
GCL and the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), of a Registration
Statement on Form S-4 and related documents in relation to an offer by the
Company to exchange (the "Exchange Offer") all outstanding US$1,000,000,000
8.70% Senior Notes due 2007 for US$1,000,000,000 8.70% Senior Notes due 2007
which have been registered under the Securities Act (the "Exchange Securities").
Unless otherwise defined in this opinion or the Schedules to it, capitalised
terms have the meanings assigned to them in the Purchase Agreement listed in
Schedule I to this opinion.
For the purposes of this opinion we have examined and relied upon the documents
listed (which, in some cases, are also defined) in Schedule I to this opinion
(the "Documents").
Assumptions
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In stating our opinion we have assumed:-
(a) the authenticity, accuracy and completeness of all Documents (including,
without limitation, public records) submitted to us as originals and the
conformity to authentic original Documents of all Documents submitted to us
as certified, conformed, notarised or photostatic copies;
(b) the genuineness of all signatures on the Documents;
(c) the authority, capacity and power of each of the persons signing the
Documents (other than the Company and GCL);
(d) that any factual statements made in any of the Documents are true, accurate
and complete;
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(e) that the Operative Documents constitute the legal, valid and binding
obligations of each of the parties thereto, other than the Company and GCL,
under the laws of its jurisdiction of incorporation or its jurisdiction of
formation;
(f) that the Operative Documents have been validly authorized, executed and
delivered by each of the parties thereto, other than the Company and GCL,
and the performance thereof is within the capacity and powers of each such
party thereto, and that each such party to which the Company and GCL
purportedly delivered the Operative Documents has actually received and
accepted delivery of such Operative Documents;
(g) that the Operative Documents will effect, and will constitute legal, valid
and binding obligations of each of the parties thereto, enforceable in
accordance with their terms, under the laws of the State of New York by
which they are governed;
(h) that the Operative Documents are in the proper legal form to be admissible
in evidence and enforced in the courts of the State of New York and in
accordance with the laws of the State of New York;
(i) that there are no provisions of the laws or regulations of any jurisdiction
other than Bermuda which would be contravened by the execution or delivery
of the Operative Documents or which would have any implication in relation
to the opinions expressed herein and that, in so far as any obligation
under, or action to be taken under, the Operative Documents, the Bye-laws
of the Company and the Bye-laws of GCL is required to be performed or taken
in any jurisdiction outside Bermuda, the performance of such obligation or
the taking of such action will constitute a valid and binding obligation of
each of the parties thereto under the laws of that jurisdiction and will
not be illegal by virtue of the laws of that jurisdiction;
(j) that the Searches were complete and accurate at the time that they were
made and disclosed all information which is material for the purposes of
this opinion and such information has not since such date been materially
altered;
(k) that the Resolutions are in full force and effect and have not been
rescinded, either in whole or in part and accurately record the resolutions
adopted as written resolutions of the Board of Directors of GCL or
resolutions passed by the Board of Directors of the Company or the
Executive Committee of GCL, as the case may be, at meetings which were duly
convened and at which duly constituted quorums were present and voting
throughout and accurately record the resolutions adopted by the Directors
of the Company and of the Executive Committee of GCL;
(l) that each of the Company and GCL has entered into its obligations under the
Operative Documents in good faith for the purpose of carrying on its
business and that, at the time it did so, there were reasonable grounds for
believing that the transactions contemplated by the Operative Documents
would benefit the Company and GCL as the case may be; and
(m) that when executed any document presented to us in draft form will not
differ in any material way from the draft, which we have examined.
Opinion
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Based upon and subject to the foregoing and subject to the reservations set out
below and to any matters not disclosed to us, we are of the opinion that:-
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(1) Each of the Company and GCL has taken all necessary corporate action to
authorise the execution and delivery of the Registration Statement and the
Operative Documents to which it is a party, and the performance by them of
the transactions contemplated therein.
(2) The Company has taken all necessary corporate action to authorise the
issuance and delivery of the Exchange Securities and the performance by it
of the transactions contemplated therein.
(3) GCL has taken all necessary corporate action to authorise the giving of the
Guarantee set forth in the Indenture and the execution and delivery of the
notation of such Guarantee on the Exchange Securities in accordance with
the terms of the Indenture.
(4) The Exchange Securities, when issued in accordance with the terms of the
Indenture, duly executed by the Company, duly authenticated by the Trustee,
and issued and delivered against exchange of the Restricted Notes in
accordance with the terms set forth in the Prospectus that forms part of
the Registration Statement, will constitute the legal and binding
obligations of the Company under the laws of Bermuda.
Reservations
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We have the following reservations:-
(a) We express no opinion as to the availability of equitable remedies such as
specific performance or injunctive relief, or as to any matters which are
within the discretion of the courts of Bermuda in respect of any
obligations of the Company and GCL as set out in the Operative Documents,
the Exchange Securities and in the Bye-laws of the Company and GCL.
Further, we express no opinion as to the validity or binding effect of any
waiver of or obligation to waive either any provision of law (whether
substantive or procedural) or any right or remedy.
(b) Enforcement of the obligations of the Company and GCL under the Bye-laws of
the Company and under the Bye-laws of GCL and under the Operative Documents
may be limited or affected by applicable laws from time to time in effect
relating to bankruptcy, insolvency or liquidation or any other laws or
other legal procedures affecting generally the enforcement of creditors'
rights.
(c) Enforcement of the obligations of the Company and GCL may be the subject of
a statutory limitation of the time within which such proceedings may be
brought.
(d) We express no opinion as to any law other than Bermuda law and none of the
opinions expressed herein relates to compliance with or matters governed by
the laws of any jurisdiction except Bermuda. This opinion is limited to
Bermuda law as applied by the Courts of Bermuda at the date hereof.
(e) Where an obligation is to be performed in a jurisdiction other than
Bermuda, the courts of Bermuda may refuse to enforce it to the extent that
such performance would be illegal under the laws of, or contrary to public
policy of, such other jurisdiction.
(f) We express no opinion as to the validity, binding effect or enforceability
of any provision incorporated into the Bye-laws of the Company or any of
the Operative Documents by reference to a law other than that of Bermuda,
or as to the availability in Bermuda of remedies which are available in
other jurisdictions.
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(g) Where a person is vested with a discretion or may determine a matter in his
or its opinion, such discretion may have to be exercised reasonably or such
an opinion may have to be based on reasonable grounds.
(h) We express no opinion as to the validity or binding effect of any provision
of the Operative Documents which provides for the severance of illegal,
invalid or unenforceable provisions.
(i) A Bermuda court may refuse to give effect to any provisions of the
Operative Documents and the Bye-laws of the Company in respect of costs of
unsuccessful litigation brought before the Bermuda court or where that
court has itself made an order for costs.
(j) Searches of the Register of Companies at the office of the Registrar of
Companies and of the Supreme Court Causes Book at the Registry of the
Supreme Court are not conclusive and it should be noted that the Register
of Companies and the Supreme Court Causes Book do not reveal:
(i) whether an application to the Supreme Court for a winding up
petition or for the appointment of a receiver or manager has been
prepared but not yet been presented or has been presented but does
not appear in the Causes Book at the date and time the Search is
concluded;
(ii) whether any arbitration or administrative proceedings are pending or
whether any proceedings are threatened, or whether any arbitrator
has been appointed;
(iii) details of matters which have been lodged for filing or registration
which as a matter of general practice of the Registrar of Companies
would have or should have been disclosed on the public file but have
not actually been registered or to the extent that they have been
registered have not been disclosed or appear in the public records
at the date and time the search is concluded;
(iv) whether a receiver or manager has been appointed privately pursuant
to the provisions of a debenture or other security, unless notice of
the fact has been entered in the register of charges in accordance
with the provisions of the Act.
Furthermore, in the absence of a statutorily defined system for the
registration of charges created by companies incorporated outside Bermuda
("overseas companies") over their assets located in Bermuda, it is not
possible to determine definitively from searches of the register of charges
maintained by the Registrar of Companies in respect of such overseas
companies what charges have been registered over any of their assets
located in Bermuda or whether any one charge has priority over any other
charge over such assets.
(k) We express no opinion as to the validity or binding effect of any provision
in the Operative Documents or the Exchange Securities for the payment of
interest at a higher rate on overdue amounts than on amounts which are
current, or that liquidated damages or a penalty are or may be payable.
Such a provision may not be enforceable if it could be established that the
amount expressed as being payable was in the nature of a penalty; that is
to say a requirement for a stipulated sum to be paid irrespective of, or
necessarily greater than, the loss likely to be sustained or if it is
expressed as a penalty. If it cannot be demonstrated to the Bermuda court
that the higher payment was a reasonable pre-estimate of the loss suffered,
the court will determine and award what it considers to be reasonable
damages. Section 9 of The Interest and Credit Charges (Regulations) Act
1975 provides that the Bermuda courts have discretion as to the amount of
interest, if any, payable on the amount of
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a judgment after date of judgment. If the Court does not exercise that
discretion, then interest will accrue at the statutory rate which is
currently 7% per annum.
Disclosure
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This opinion is addressed to you solely for your benefit and is neither to be
transmitted to any other person, nor relied upon by any other person or for any
other purpose nor quoted or referred to in any public document nor filed with
any governmental agency or person, without our prior written consent, except as
may be required by law or regulatory authority. Further, this opinion speaks as
of its date and is strictly limited to the matters stated herein. We hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement and we further consent to the reference to our firm under the caption
"Service of Process and Enforcement of Liabilities" and "Legal Matters" in the
Prospectus that forms part of the Registration Statement.
This opinion is addressed to you in connection with the issue of the Exchange
Securities and is not to be made available to, or relied on by any other person
or entity, or for any other purpose, without our prior written consent except
that the law firm Xxxxxxx Xxxxxxx & Xxxxxxxx may rely on this opinion as if it
were addressed to them for the purposes of rendering their opinion to the
Company dated the date hereof in connection with the Registration Statement.
This opinion is governed by and is to be construed in accordance with Bermuda
law. It is given on the basis that it will not give rise to any legal
proceedings with respect thereto in any jurisdiction other than Bermuda.
Yours faithfully
Xxxxxxx Xxxxxxxx & Xxxxx
/s/ Xxxxxxx Xxxxxxxx & Xxxxx
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SCHEDULE 1
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1. A copy of the Offering Memorandum dated January 23, 2001 relating to the
offering and sale of US$1,000,000,000 8.70% Senior Notes due 2007
(excluding Exhibits) (the "Offering Memorandum").
2. An electronic copy of an original Registration Statement on form S-4 with
respect to the Exchange Securities excluding Exhibits and the documents
incorporated by reference (the "Registration Statement").
3. An electronic copy dated April 12, 2001 of the Prospectus (the
"Prospectus").
4. A copy of the executed Purchase Agreement dated as of January 23, 2001
(excluding Exhibits) and made between the Company, and the Initial
Purchasers listed therein (the "Purchase Agreement").
5. A copy of the executed Indenture (excluding Exhibits) dated as of January
29, 2001 and made between the Company, the Guarantors as defined therein
and United States Trust Company of New York (the "Indenture").
6. A copy of the executed Registration Rights Agreement (the "Registration
Agreement") dated as of January 29, 2001 among the Company, GCL, as
guarantor and Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated and
Xxxxxxx Xxxxx Xxxxxx Inc., as representatives of the several Initial
Purchasers.
7. A certified copy of excerpts from written resolutions dated November 4,
1999 and June 15, 2000 of the Board of Directors of GCL establishing the
Executive Committee and the Minutes of the Meetings of the Executive
Committee of the Board of Directors of the GCL and of the Board of
Directors of the Company held on 22nd January, 2001 (the "Resolutions").
8. The entries and filings shown in respect of the Company and GCL on the
files of the Company and GCL maintained at the office of the Registrar of
Companies in Hamilton, Bermuda, as revealed by searches completed between
10:27 am and 10:44 am (Bermuda time) on April 20, 2001.
9. The entries and filings shown in the Supreme Court Causes Book maintained
at the Registry of the Supreme Court in Hamilton, Bermuda, as revealed by
searches completed between 10:27am and 10:44am (Bermuda time) on April 20,
2001 in respect of the Company and GCL.
(The searches referred to in items 8 and 9 above are together referred to as
the "Searches").
10. The Certificate of Incorporation, Memorandum of Association and Bye-laws of
the Company and GCL, (the "Constitutional Documents").
11. A copy, certified on April 23, 2001, of the Register of Directors and
Officers in respect of the Company and GCL.
12. A copy of a letter, dated January 29, 2001 evidencing the consent of the
Bermuda Monetary Authority to the issue by the Company of the Exchange
Securities.
(The documents referred to in 4, 5 and 6 above are together referred to as the
"Operative Documents".)
