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EXHIBIT 4.5
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, TRANSFERRED,
ASSIGNED OR OTHERWISE DISPOSED OF UNLESS SO REGISTERED OR AN EXEMPTION FROM
REGISTRATION UNDER SAID ACT AND LAWS IS AVAILABLE.
ASIA GLOBAL CROSSING LTD.
SUBORDINATED NOTE - B
$200,000,000 October 12, 2000
FOR VALUE RECEIVED, the undersigned, ASIA GLOBAL CROSSING LTD., a
Bermuda company (the "Borrower"), promises to pay to the order of GLOBAL
CROSSING HOLDINGS LTD., a Bermuda company (the "Holder"), on April 15, 2011 (the
"Maturity Date") the aggregate unpaid principal amount of all loans made by the
Holder to the Borrower pursuant hereto.
The Holder agrees, at any time or from time to time, so long as no
Change of Control, Event of Default or Default (as such terms are defined below)
shall have occurred and be continuing, until the Termination Date (as defined
below), to loan the Borrower up to an aggregate principal amount of $200,000,000
(the "Commitment") within five business days of its receipt of a written request
therefor. All loans made under this promissory note (this "Note") shall be in an
amount equal to $100,000 or an integral multiple thereof. The unpaid principal
amount of this Note from time to time outstanding shall bear interest at a rate
of 14.875%. Interest shall be payable in cash semi-annually in arrears on April
15 and October 15 of each year, commencing on April 15, 2001; provided that,
interest due on or before October 15, 2005 will be paid-in-kind by increasing
the outstanding principal amount of this Note by the amount of such unpaid
interest and such increase shall be deemed accepted by the Holder as payment of
the cash interest that is then payable. Such increases in the outstanding
principal amount of this Note shall be reflected on Schedule A hereto. Interest
will be computed on the basis of a 360-day year comprised of twelve 30-day
months. All payments of principal of and interest on this Note shall be payable
in lawful currency of the United States of America. All such payments shall be
made by the Borrower to an account established by the Holder and notified to the
Borrower and shall be recorded on the books and records of the Borrower and the
Holder.
The Borrower agrees to pay to the Holder an upfront fee in the amount of
$1,500,000 on the date hereof and, on the date that is 7 days after the date of
each loan made hereunder, a fee in
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an amount equal to 1% of the principal amount, if any, of such loan outstanding
on such 7th day. The Borrower also agrees to pay to the Holder a commitment fee
for the period from the date hereof until the Termination Date (as defined
below) calculated at the rate of .60% per annum on the average daily unused
amount of the Commitment during the period for which payment is made, payable
semi-annually in arrears on April 15 and October 15 of each year, commencing on
April 15, 2001, and on the date upon with the Commitment terminates or expires.
If any payment on this Note becomes due and payable on a day other than
a day on which commercial banks in New York City are open for the transaction of
normal business (a "Business Day"), the maturity thereof shall be extended to
the next succeeding Business Day and, with respect to any payment of principal,
interest or commitment or drawdown fees thereon shall be payable at the then
applicable rate during such extension.
The Holder is authorized to endorse on Schedule A attached hereto and
made a part hereof, the amount of each loan made pursuant to this Note and of
each increase in the principal amount hereof resulting from the payment of
interest in kind and the date and amount of each payment or prepayment of
principal thereof. Each such endorsement shall constitute prima facie evidence
of the accuracy of the information endorsed.
1. Payment Provisions.
1.1 Payments on this Note. The Borrower shall make payments of
principal of, interest on and the fees with respect to this Note when due.
1.2 Optional Redemption. This Note may be redeemed at the option
of the Borrower, at any time or from time to time, in whole or in part, at par
plus accrued and unpaid interest, plus any accrued and unpaid fees.
1.3 Change of Control. Upon a Change of Control, the Holder shall
have the right to require the Borrower to repurchase this Note at a purchase
price equal to 101% of the principal amount thereof plus accrued and unpaid
interest plus any accrued and unpaid commitment fee to the date of purchase.
1.4 Commitment Reduction. The Holder shall be entitled to reduce
the amount of the Commitment upon receipt by the Borrower of any net-cash
proceeds from (a) the issuance of any shares of the Borrower's capital stock
subsequent to the Borrower's initial public offering (the "IPO") (excluding any
shares sold as part of the exercise by the underwriters of their "greenshoe"
rights in connection with the IPO) and (b) the issuance by the Borrower of any
Indebtedness which matures no earlier than the Maturity Date, requires no
payments of interest in cash on or prior to October 15, 2005 and is subordinated
to Senior Indebtedness (as defined below) and contains other terms and
conditions consistent with these than current in the market for subordinated
high-yield Indebtedness. Each such reduction shall be in an amount equal to the
amount of such net-cash proceeds so received, less any amounts that have been
applied to the reduction of the commitment under Subordinated Note A, dated the
date hereof, made by the Borrower in favor of the Holder. Such reduction shall
become effective upon the receipt thereof. The Borrower shall provide prompt
written notice of the amount of such reduction.
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2. Default. The entire unpaid principal of this Note, together with all
accrued and unpaid interest and any accrued and unpaid fees shall become and be
immediately due and payable upon written demand of the Holder (or in the case of
an event specified in Section 2(e) or (f), automatically without notice),
without any other notice or demand of any kind or any presentment or protest, if
any one of the following events (an "Event of Default") shall occur and be
continuing at the time of such demand, whether voluntarily or involuntarily, or,
without limitation, occurring or brought about by operation of law or pursuant
to or in compliance with any judgment, decree or order of any court or any
order, rule or regulation of any governmental body:
a. The Borrower defaults in any payment of interest or any
fee on this Note when the same becomes due and payable,
and such default continues for a period of 30 days;
b. The Borrower defaults in the payment of the principal of
this Note when the same becomes due and payable at its
stated maturity or pursuant to the provision of Section
1.3;
c. The Borrower fails to comply with any of its agreements
in this Note (other than those referred to in (a) or (b)
above) and such failure continues for 60 days;
d. Default under any mortgage, indenture or instrument
under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed
by the Borrower or any of its Subsidiaries (or the
payment of which is guaranteed by the Borrower or any of
its Subsidiaries) whether such Indebtedness or guarantee
now exists, or is created after the date of the
Indenture, which Default shall constitute failure to pay
the principal of such Indebtedness at stated maturity
(after giving effect to any applicable grace periods and
any extensions thereof) or results in the acceleration
of such Indebtedness prior to its stated maturity and,
in each case, the principal amount of any such other
Indebtedness, together with the principal amount of any
other such Indebtedness which has not been paid or the
maturity of which has been so accelerated, aggregates
$25,000,000 or more;
e. The Borrower or a Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
1. commences a voluntary case;
2. consents to the entry of an order for relief
against it in an involuntary case;
3. consents to the appointment of a custodian of it
for all or substantially all of its property;
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4. makes a general assignment for the benefit of
its creditors; or
5. generally is not paying its debts as they become
due;
f. A court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
1. is for relief against the Borrower or any
Restricted Subsidiary that is a Significant
Subsidiary or any group of Restricted
Subsidiaries that, taken together, would
constitute a Significant Subsidiary;
2. appoints a custodian of the Borrower or any
Restricted Subsidiary that is a Significant
Subsidiary or any group of Restricted
Subsidiaries that, taken together, would
constitute a Significant Subsidiary; or
3. orders the liquidation of the Borrower or any
Restricted Subsidiary that is a Significant
Subsidiary or any group of Restricted
Subsidiaries that, taken together, would
constitute a Significant Subsidiary;
or any similar relief is granted under any foreign laws
and the order, decree or relief remains unstayed and in
effect for 60 consecutive days; or
g. failure by the Borrower or any of its Restricted
Subsidiaries to pay final judgments not subject to
appeal aggregating in excess of $25,000,000 (net of
applicable insurance coverage which is acknowledged in
writing by the insurer), which judgments are not paid,
discharged or stayed for a period of 60 days following
the entry of the final judgment or order that causes the
aggregate amount for all such final judgments or orders
outstanding and not paid, discharged or stayed to exceed
$25,000,000.
3. Certain Definitions. As used in this Note, the following terms shall
have the following meanings:
"Bankruptcy Law" means all applicable U.S. federal and state laws
relating to bankruptcy, insolvency, winding up, administration, receivership and
other similar matters and any similar Bermuda or other foreign law for the
relief of creditors.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participation or other
equivalents of or interests in (however
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designated) equity of such Person, including, without limitation, any Preferred
Stock and if such Person is a partnership, partnership interests, but excluding
any debt securities convertible into such equity.
"Change of Control" has the meaning ascribed to such term in the
Indenture.
"Default" means any event or condition which constitutes an Event
of Default or which upon notice, lapse of time, or both, would constitute an
Event of Default.
"Designated Representative" means, in the case of the
Indebtedness under the Indenture, the Trustee (as defined in the Indenture) and,
in the case of any other Designated Senior Indebtedness, the trustee, agent or
other representative of the holders thereof.
"Designated Senior Indebtedness" means (i) Indebtedness under the
Indenture so long as any Indebtedness under the Indenture is outstanding and
(ii) any other Senior Indebtedness the principal amount of which is $100 million
or more and that has been designated by the Borrower as Designated Senior
Indebtedness.
"Indebtedness" has the meaning ascribed to such term in the
Indenture.
"Indenture" means the Indenture dated as of October 12, 2000
among the Borrower, the Guarantors party thereto from time to time and United
States Trust Company of New York, as Trustee.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Restricted Subsidiary" has the meaning ascribed to such term in
the Indenture.
"Senior Indebtedness" means all Indebtedness of the Borrower
including interest thereon, whether outstanding on the date hereof or thereafter
incurred, unless in the instrument creating or evidencing the same or pursuant
to which the same is outstanding it is provided that such obligations are not
superior in right of payment to this Note; provided, however, that Senior
Indebtedness shall not include (1) any obligation of the Borrower to any
Subsidiary, (2) any liability for Federal, state, local or other taxes owed or
owing by the Borrower, and (3) any accounts payable or other liability to trade
creditors arising in the ordinary course of business (including Guarantees
thereof or instruments evidencing such liabilities).
"Significant Subsidiary" means any Restricted Subsidiary that
would be a "Significant Subsidiary" of the Borrower within the meaning of Rule
1-02 under Regulation S-X promulgated by the U.S. Securities and Exchange
Commission.
"Subsidiary" has the meaning ascribed to such term in the
Indenture.
"Termination Date" means December 31, 2002.
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4. Loss, Theft, Destruction or Mutilation. Upon receipt of evidence
satisfactory to the Borrower of the loss, theft, destruction or mutilation of
this Note and, in the case of such loss, theft or destruction, upon delivery to
the Borrower of an indemnity undertaking reasonably satisfactory to the
Borrower, or, in the case of any such mutilation, upon surrender of this Note to
the Borrower, the Borrower will issue a new note, of like tenor and principal
amount, in lieu of or in exchange for such lost, stolen, destroyed or mutilated
Note. Upon the issuance of any substitute Note, the Borrower may require the
payment to it of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other reasonable expenses in
connection therewith.
5. Notices and Demands.
All notices, demands and other communications provided for in
this Note or made under this Note shall be in writing and shall be deemed to
have been duly given if delivered by hand (whether by overnight courier or
otherwise) or sent by registered or certified mail, return receipt requested,
postage prepaid, to the Person to whom it is directed:
(a) If to Holder, to it at the following address:
Global Crossing Holdings Ltd.
360 North Crescent Drive
Beverly Hills, California 90210
Attn: General Counsel
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017-3954
Attn: Scott Gottdiener, Esq.
(b) If to the Borrower, to it at the following address:
Asia Global Crossing Ltd.
360 North Crescent Drive
Beverly Hills, California 90210
Attn: General Counsel
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017-3954
Attn: Scott Gottdiener, Esq.
6. Present Intent. By acceptance of this Note, the Holder acknowledges
that this Note is being acquired without a present intention of resale or
distribution, and that this Note will
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not be transferred, pledged or otherwise disposed of by the Holder in the
absence of an effective registration statement under the Securities Act of 1933,
as amended (the "Securities Act"), or an opinion of counsel (including in-house
counsel) reasonably satisfactory to the Borrower that such registration is,
under the circumstances, not required.
7. Subordination.
7.1 Subordination Agreement. The Borrower, for itself, its
successors and assigns, covenants and agrees, and the Holder of this Note by its
acceptance hereof likewise covenants and agrees, that, subject to the other
terms and provisions of this Note, the payment of the principal of and interest
on, and all other amounts due with respect to this Note is hereby wholly
subordinated and junior in right of payment, to the extent and in the manner
hereinafter set forth herein, to prior payment in full of all Senior
Indebtedness of the Borrower now or hereafter incurred. The provisions of this
Section 7 shall constitute a continuing offer to all persons who, in reliance
upon such provisions, become holders of, or continue to hold, Senior
Indebtedness. All present and future holders of Senior Indebtedness shall be
deemed to hold such Senior Indebtedness in reliance upon the provisions of this
Section 7. The provisions of this Section 7 are made for the benefit of the
holders of Senior Indebtedness, and such holders are hereby made obligees
hereunder to the same extent as if their names were written herein as such, and
they, or each of them, shall at any time be entitled to enforce these provisions
against the Borrower or against the Holder of this Note without joining the
Borrower as a party. The Holder acknowledges that the creation and existence of
Senior Indebtedness shall not constitute a default under or contravene any
provision of this Note. The Holder shall execute and deliver to any holder or
holders of Senior Indebtedness such proofs of claim, assignments of claim and
other instruments as may be requested by the holder or holders of Senior
Indebtedness or their representatives to enforce all claims upon or in respect
of this Note pursuant to this Section 7, if no such proof of claim, assignment
of claim or other instrument is filed by the Holder before ten (10) days prior
to the date established by rule of law or order of court for such filing.
7.2 Maturity of Senior Indebtedness. Upon the maturity of any
Designated Senior Indebtedness by lapse of time, acceleration, redemption
obligation or otherwise, all principal thereof, premium, if any, and interest
due thereon, together with all fees and other expenses incurred to the holders
of the Designated Senior Indebtedness and with respect thereto, shall first be
paid in full, or such payment duly provided for in cash or in a manner
satisfactory to the holder or holders of such Designated Senior Indebtedness,
before any payment is made on account of the principal of, and all other amounts
due with respect to, this Note.
7.3 Default on Senior Indebtedness. Without prejudice to the
payment-in-kind interest provisions of the second paragraph of this Note, no
payment on account of principal of, premium or interest on, or other amounts due
with respect to this Note shall be made, during a single continuous period of
179 days (the "Standstill Period") (x) commencing on the first date on which the
Borrower and the Holder have each received written notice from the Designated
Representative declaring the commencement of the Standstill Period as a result
of (i) there having occurred a default in any payment of principal of, premium
or interest on, or fees or other expenses incurred to the holders of the
Designated Senior Indebtedness with respect to, any Designated Senior
Indebtedness beyond any applicable grace period with respect thereto, or (ii)
there having occurred an event of default (other than a default in the payment
of amounts due
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thereon) with respect to any Designated Senior Indebtedness, as defined in the
instrument under which the same is outstanding, beyond any applicable grace
period with respect thereto, permitting the holders thereof to accelerate the
maturity thereof, and such event of default shall not have been cured or waived
or shall not have ceased to exist and (y) ending on the earliest of (i) 179 days
following the commencement of such period, (ii) the date on which all such
defaults and events of default are cured, waived or cease to exist, (iii) the
date on which the Designated Senior Indebtedness is paid in full or otherwise
discharged or (iv) the date on which the Standstill Period shall have been
terminated in writing by the Designated Representative, after which the Borrower
shall promptly resume making any and all required payments in respect of this
Note, including any missed payments. In the event that notwithstanding the
provisions of this Section 7.3, the Borrower shall during the Standstill Period
make any payment of principal of, interest on, or other amounts due with respect
to this Note to the Holder after receipt by the Holder of written notice from
the Designated Representative of the commencement of the Standstill Period, then
such payment shall be held by the Holder in trust for the benefit of, and shall
be paid forthwith over and delivered to, the holders of Senior Indebtedness (pro
rata as to each of such holders on the basis of the respective amounts of Senior
Indebtedness held by them after due written notice of the names of such holders
and the respective amount of the indebtedness held by such holders) or their
representative or representatives, for application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay all Senior
Indebtedness remaining unpaid in full in accordance with the terms of such
Senior Indebtedness after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
7.4 Dissolution, Liquidation or Reorganization. Upon any
distribution of assets of the Borrower pursuant to any dissolution, winding up,
total or partial liquidation or reorganization of the Borrower (whether in
bankruptcy, insolvency or receivership proceedings or upon an assignment for the
benefit of creditors or otherwise),
a. the holders of all Senior Indebtedness shall first be
entitled to receive payment in full of the principal
thereof, premium, if any, and interest due thereon,
together with all fees and other expenses incurred with
respect thereto, before the Holder shall be entitled to
receive any payment on account of principal of, interest
on, and all other amounts due with respect to this Note
(other than payment in shares of stock of the Borrower
as reorganized or readjusted, or securities of the
Borrower or any other corporation provided for by a plan
of reorganization or readjustment, which stock and
securities are subordinated to the payment of all Senior
Indebtedness and securities received in lieu thereof
which may at the time be outstanding).
b. any payment or distribution of assets of the Borrower of
any kind or character, whether in cash, property or
securities (other than shares of stock of the Borrower
as reorganized or readjusted, or securities of the
Borrower or any other corporation provided for by a plan
of reorganization or readjustment, which stock and
securities are subordinated to the payment of all Senior
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Indebtedness and securities received in lieu thereof
which may at the time be outstanding), to which the
holder of this Note would be entitled except for the
provisions of this Section 7 shall be paid by the
liquidating trustee or agent or other person making such
payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or other
trustee or agent, directly to the holders of Senior
Indebtedness or their representative or representatives,
to the extent necessary to make payment in full of all
Senior Indebtedness remaining unpaid, after giving
effect to any concurrent payment or distribution or
provision therefor to the holders of such Senior
Indebtedness.
c. in the event that notwithstanding the foregoing
provisions of this Section 7.4, any payment or
distribution of assets of the Borrower (including,
without limitation, any received by set-off or as
damages) of any kind or character, whether in cash,
property or securities (other than shares of stock of
the Borrower as reorganized or readjusted, or securities
of the Borrower or any other corporation provided for by
a plan of reorganization or readjustment, which stock
and securities are subordinated to the payment of all
Senior Indebtedness and securities received in lieu
thereof which may at the time be outstanding), shall be
received by the Holder of this Note in respect of
obligations owed to the Holder under this Note before
all Senior Indebtedness is paid in full, or effective
provision made for its payment, such payment or
distribution shall be received and held in trust for and
shall be paid over to the holders of the Senior
Indebtedness remaining unpaid or unprovided for or their
representative or representatives (after due written
notice of the names of such holders and the respective
amounts payable to them by the Holder of this Note), for
application to the payment of such Senior Indebtedness
until all such Senior Indebtedness shall have been paid
in full, after giving effect to any concurrent payment
or distribution or provision therefor to the holders of
such Senior Indebtedness.
7.5 Subrogation. After all Senior Indebtedness is paid in full
and until the Notes are paid in full, the Holder shall be subrogated to the
rights of the holders of such Senior Indebtedness to receive payments or
distributions of assets of the Borrower made on such Senior Indebtedness; and
for the purposes of such subrogation, no payments or distributions to holders of
such Senior Indebtedness of any cash, property or securities to which the Holder
of this Note would be entitled except for the provisions of this Section 7, and
no payment pursuant to the provisions of this Section 7 to holders of such
Senior Indebtedness by the Holder, shall, as among the Borrower, its creditors
other than holders of such Senior Indebtedness and the Holder, be deemed to be a
payment by the Borrower to or on account of such Senior Indebtedness, it being
understood that the provisions of this Section 7 are solely for the purpose of
defining the relative rights of the holders of such Senior Indebtedness, on the
one hand, and the Holder, on the other hand.
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If any payment or distribution to which the Holder would
otherwise have been entitled but for the provisions of this Section 7 shall have
been applied, pursuant to the provisions of this Section 7, to the payment of
amounts payable under the Senior Indebtedness, then and in such case the Holder
shall be entitled to receive from the holders of such Senior Indebtedness at the
time outstanding any payments or distributions received by such holders of
Senior Indebtedness in excess of the amount sufficient to pay all amounts
payable under or in respect of such Senior Indebtedness in full.
7.6 Obligation of the Borrower. The provisions of this Section 7
are solely for the purposes of defining the relative rights of the Holder of
this Note and the holders of Senior Indebtedness. Nothing contained in this
Section 7 or elsewhere in this Note is intended to or shall impair, as between
the Borrower and the Holder, the obligation of the Borrower, which is absolute
and unconditional, to pay the Holder the principal of and interest on, and all
other amounts due with respect to this Note as and when the same shall become
due and payable in accordance with its terms or is intended to or shall affect
the relative rights of the Holder and creditors of the Borrower other than the
holders of Senior Indebtedness; nor shall anything herein prevent the Holder
from exercising all remedies otherwise permitted by applicable law or under this
Note upon default, subject to the provisions of this Section 7 hereof and the
rights, if any, under this Section 7 of the holders of Senior Indebtedness in
respect of cash, property or securities of the Borrower received upon the
exercise of any such remedy. Upon any distribution of assets of the Borrower
referred to in this Section 7, the Holder of this Note shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in which
such dissolution, winding up, liquidation or reorganization proceedings are
pending, or a certificate of the liquidating trustee or agent or other person
making any distribution to the Holder of this Note, for the purpose of
ascertaining the persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other indebtedness of the Borrower, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Section 7. The failure
to make a payment of principal of or interest on, or other amounts due under,
this Note by reason of any provision of this Section 7 shall not be construed as
preventing the occurrence of a default under this Note.
7.7 Effect of Acts or Omissions. No right of any present or
future holders of any Senior Indebtedness to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Borrower or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Borrower with the
terms, provisions and covenants of this Note, regardless of any knowledge
thereof which any such holder may have or be otherwise charged with.
7.8 No Implied Covenants. With respect to the holders of Senior
Indebtedness, the Holder shall be required to observe only such obligations as
are specifically set forth in this Section 7, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Section 7 against the Holder. The Holder shall not be deemed to have
any fiduciary duty to the holders of the Senior Indebtedness.
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8. Miscellaneous Provisions.
8.1 No Oral Modifications. Neither this Note nor any term of this
Note may be changed, waived, discharged or terminated orally, but may only be
amended or modified by an instrument in writing signed by the Holder and the
Borrower.
8.2 Binding Effect. This Note shall be binding upon and inure to
the benefit of the Borrower, the Holder of this Note and their respective heirs,
successors and assigns.
8.3 Governing Law, Jurisdiction; Jury Trial Waiver. This Note
shall be governed by, and construed and interpreted in accordance with, the law
of the State of New York. The Borrower hereby irrevocably submits to the
exclusive jurisdiction of the United States District Court for the Southern
District of New York located in the borough of Manhattan in the City of New
York, or, if such court does not have jurisdiction, the Supreme Court of the
State of New York, New York County, for the purposes of any suit, action or
other proceeding arising out of this Note. The Borrower and hereby further
agrees that service of any process, summons, notice or document by U.S.
registered mail to its address set forth in Section 6 shall be effective service
of process for any action, suit or proceeding in New York with respect to any
matters to which it has submitted to jurisdiction as set forth above in the
immediately preceding sentence. Each of the parties hereto irrevocably and
unconditionally waives, to the extent permitted by applicable law, any objection
to the laying of venue of any action, suit or proceeding arising out of this
Note in (a) the United States District Court for the Southern District of New
York or (b) the Supreme Court of the State of New York, New York County, and
hereby further irrevocably and unconditionally waives, to the extent permitted
by applicable law, and agrees not to plead or claim in any such court that any
such action, suit or proceeding brought in any such court has been brought in an
inconvenient forum. To the extent permitted by applicable law, the Borrower
waives the right to trial by jury in any such action or proceeding.
8.4 Recourse. Recourse under this Note shall be to the assets of
the Borrower only and in no event to the officers, directors or stockholders of
the Borrower.
8.5 Assignability. The Holder may sell, assign, transfer or
otherwise hypothecate ("Transfer") this Note to any other Person, provided that
it may not transfer its obligations with respect to the Commitment without the
consent of the Borrower. If any interest in this Note is Transferred in
compliance with this Section 8.5, this Note shall be cancelled, and the Borrower
shall execute and deliver a new note (in substantially the form of this Note) to
each Person to whom an interest in this Note has been Transferred in an
aggregate principal amount equal to such Person's interest in this Note.
8.6 Costs. The Borrower will pay all reasonable costs and
expenses of collection, including attorneys' fees and disbursements, appraiser's
fees and court costs, incurred or paid by the Holder in enforcing this Note, to
the extent permitted by law, including all costs and reasonable attorneys' fees
incurred in any appeal, bankruptcy proceeding, or other proceeding.
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IN WITNESS WHEREOF, the Borrower has caused this Note to be
executed in its corporate name by its duly authorized officer this twelfth day
of October, 2000.
ASIA GLOBAL CROSSING LTD.
By: /s/ Mitchell Sussis
-------------------------------
Title: Assistant Secretary
Agreed and Accepted:
GLOBAL CROSSING HOLDINGS LTD.
By: /s/ Mitchell Sussis
-------------------------------
Title: Assistant Secretary
<PAGE> 13
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount of this Note shall be $200,000,000.
The following notations with respect to the principal amount of this Note have
been made:
<TABLE>
<CAPTION>
Increase in Notation
Principal Principal Amount Made by or
Amount of Principal pursuant to PIK on behalf
Date Loan Amount Paid provisions of Holder
---- ---- ----------- ---------- ---------
<S> <C> <C> <C> <C>
</TABLE>
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