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EXHIBIT 4.4
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 - A
$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) (or, if earlier, October 15, 2003) 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 then 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 - B, dated
the date hereof, made by the Borrower in favor of the Holder. Such reduction
shall become effective upon the receipt thereof.
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The Borrower shall provide the Holder with prompt written notice of the amount
of such reduction.
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;
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3. consents to the appointment of a
custodian of it for all or substantially
all of its property;
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.
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"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 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.
"Free Cash Flow" means for any period, the excess, if any of (a)
Consolidated Cash Flow (as defined in the Indenture) for such period, less (b)
the aggregate amount paid in cash by the Borrower during such period on account
of capital expenditures (other than those financed with purchase money
indebtedness), taxes and the principal of and interest on 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).
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"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 the date upon which all of the following
conditions shall have been satisfied;
(i) the Borrower shall have no further obligations
under its funding commitment to Exodus Asia --
Pacific Ltd. in existence on the date hereof
pursuant to Section 5.1 of the Joint Venture
Agreement relating to Exodus Asia-Pacific Ltd.,
dated as of September 28, 2000, between the
Borrower and Exodus Communications, Inc.;
(ii) the Borrower shall have received cash dividends
from its Subsidiaries and affiliates in an
aggregate amount of $100,000,000; and
(iii) the aggregate Free Cash Flow of the Borrower
subsequent to the completion of East Asia
Crossing shall exceed $200,000,000; provided
that any cash dividends received by the Borrower
which are applied to satisfy the condition
contained in clause (ii) above shall be excluded
from the calculation of Free Cash Flow for
purposes of this clause (iii).
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:
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Global Crossing Holdings Ltd.
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx Xxxxxxxxxx, Esq.
(b) If to the Borrower, to it at the following address:
Asia Global Crossing Ltd.
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx Xxxxxxxxxx, 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 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
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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 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
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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 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
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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.
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,
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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.
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
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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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13
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/ Xxxxxxxx Xxxxxx
-------------------------------
Title: Assistant Secretary
Agreed and Accepted:
GLOBAL CROSSING HOLDINGS LTD.
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------
Title: Assistant Secretary
14
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:
Increase in Notation
Principal Principal Amount Made by or
Amount of Principal pursuant to PIK on behalf
Date Loan Amount Paid provisions of Holder
---- ---- ----------- ---------- ---------
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