INDENTURE

Exhibit 4.1

EXECUTION COPY

 

GLOBAL CROSSING LIMITED

AND EACH OF THE GUARANTORS PARTY HERETO

12% SENIOR SECURED NOTES DUE 2015

 

INDENTURE

Dated as of September 22, 2009

 

WILMINGTON TRUST FSB

Trustee

 

 

CROSS-REFERENCE TABLE*

 

N.A. means not applicable.

 

*	This Cross Reference Table is not part of the Indenture.

TABLE OF CONTENTS

 

 

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INDENTURE dated as of September 22, 2009, among Global Crossing Limited, an exempted company with limited liability formed under the laws of Bermuda, the Guarantors (as defined) and Wilmington Trust FSB, as trustee.

The Company (as defined), the Guarantors and the Trustee (as defined) agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined) of the 12% Senior Secured Notes due 2015 (the “ Notes ”):

ARTICLE 1

DEFINITIONS AND INCORPORATION

BY REFERENCE

Section 1.01 Definitions.

“ 144A Global Note ” means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.

“ Acquired Debt ” means, with respect to any specified Person:

(1) Indebtedness of any other Person existing at the time such other Person is amalgamated with or is merged with or into or became a Subsidiary of such specified Person, whether or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Restricted Subsidiary of, such specified Person; and

(2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.

“ Additional Notes ” means additional Notes (other than the Initial Notes) issued under this Indenture in accordance with Sections 2.02 and 4.09 hereof, as part of the same series as the Initial Notes.

“ Additional Secured Debt ” has the meaning set forth in the Collateral Agency Agreement.

“ Additional Secured Debt Agent ” has the meaning set forth in the Collateral Agency Agreement.

“ Adjusted Net Assets ” shall only take into account the sum of the values of the assets of the relevant German Guarantor determined in accordance with applicable law and court decisions that are equivalent to those items listed in section 266 subsection (2) A, B and C of the German Commercial Code (“ HGB ”) less the relevant German Guarantor’s liabilities (consisting of all liabilities and liability reserves which correspond to those items listed in accordance with section 266 subsection (3) B, C and D of the HGB). For the purposes of calculating the Adjusted Net Assets, the following balance sheet items shall be adjusted as follows: (a) the amount of any increase in the registered share capital of the relevant German Guarantor which was carried out after the relevant German Guarantor became a party to the Note Guarantee and/or this Indenture without the prior written consent of the Trustee shall be deducted from the amount of the registered share capital of the relevant German Guarantor; (b) any funds under the Note Guarantee or this Indenture which have been or are on-lent or otherwise passed on to the relevant German Guarantor or to any subsidiary of such German Guarantor and have not yet been repaid at the time when payment under the Guarantee is demanded, shall be disregarded; (c) loans or other contractual liabilities incurred by the relevant German Guarantor in breach of the Note Guarantee and/or this Indenture shall not be taken into account as liabilities.

 

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“ Affiliate ” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control,” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms “ controlling, ” “ controlled by ” and “ under common control with ” have correlative meanings.

“ Agent ” means any Registrar, co-registrar, Paying Agent or additional paying agent.

“ Applicable Procedures ” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream that apply to such transfer or exchange.

“ Approved Jurisdictions ” means, with respect to the jurisdiction of organization of any Grantor Guarantor, each of:

(1) Argentina, Australia, Bermuda, Brazil, Canada, the Cayman Islands, Chile, Colombia, Costa Rica, Germany, Hong Kong, Ireland, Japan, Mexico, The Netherlands, Panama, Peru, Singapore, Spain, the United States and the United Kingdom; and

(2) any state, province or territory or other political subdivision of any of the foregoing.

“ Asset Sale ” means:

(1) the sale, lease, conveyance or other disposition of any assets or rights by the Company or any of its Restricted Subsidiaries; provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries taken as a whole will be governed by the provisions of this Indenture described under Section 4.15 hereof and/or the provisions of Section 5.01 hereof and not by the provisions of Section 4.10 hereof; and

(2) the issuance of Equity Interests by any of the Company’s Restricted Subsidiaries or the sale by the Company or any of its Restricted Subsidiaries of Equity Interests in any of its Subsidiaries.

Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale:

(1) any single transaction or series of related transactions that involves assets having a Fair Market Value of less than $5.0 million;

(2) a transfer of assets between or among the Company and its Restricted Subsidiaries not in violation of Section 4.07 hereof;

(3) an issuance of Equity Interests by a Restricted Subsidiary of the Company to the Company or to a Restricted Subsidiary of the Company;

 

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(4) sales of property or equipment that, in the reasonable determination of the Company, has become worn out, obsolete or damaged or otherwise unsuitable for use in connection with the business of the Company or any of its Restricted Subsidiaries;

(5) the sale, grant, lease, sublease, license, sublicense, consignment, conveyance or other disposition of equipment, inventory, telecommunications product, service or capacity, indefeasible rights of use, accounts receivable or other assets in the ordinary course of business;

(6) the sale or other disposition of cash or Cash Equivalents;

(7) a Restricted Payment that does not violate Section 4.07 hereof or a Permitted Investment; and

(8) dispositions of receivables and related assets or interests in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements.

“ Attributable Debt ” in respect of a sale and leaseback transaction means, at the time of determination, the present value of the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP; provided , however , that if such sale and leaseback transaction results in a Capital Lease Obligation, the amount of Indebtedness represented thereby will be determined in accordance with the definition of Capital Lease Obligation.

“ Bankruptcy Law ” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.

“ Beneficial Owner ” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time. The terms “Beneficially Owns”, “Beneficially Owned” and “Beneficial Ownership” have a corresponding meaning.

“ Board of Directors ” means:

(1) with respect to a company or corporation, the board of directors of the company or corporation or any committee thereof duly authorized to act on behalf of such board;

(2) with respect to a partnership, the Board of Directors of the general partner of the partnership;

(3) with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and

(4) with respect to any other Person, the board or committee of such Person serving a similar function.

 

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“ Book Value ” means the book value of property or assets, other than cash, as set forth on the books and records of the Company and its Restricted Subsidiaries and determined in accordance with GAAP.

“ Broker-Dealer ” means any broker or dealer registered with the SEC under the Exchange Act.

“ Business Day ” means any day other than a Legal Holiday.

“ Capital Lease Obligation ” means, at the time any determination is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet prepared in accordance with GAAP, and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be prepaid by the lessee without payment of a penalty.

“ Capital Stock ” means:

(1) in the case of a company or corporation, shares or corporate stock, respectively;

(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

(3) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and

(4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person,

but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

“ Cash Equivalents ” means:

(1) marketable direct obligations issued by, or unconditionally guaranteed by: (a) the United States government, (b) Switzerland or (c) the United Kingdom, or issued by any agency thereof and backed by the full faith and credit of the United States, Switzerland or the United Kingdom, in each case maturing within one year from the date of acquisition thereof;

(2) marketable direct obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Moody’s or any successor thereto;

(3) commercial paper maturing no more than one year from the date of creation thereof and, at the time of acquisition, having a rating of at least A-2 from S&P or at least P-2 from Moody’s;

(4) demand deposits, certificates of deposit, time deposits or bankers’ acceptances maturing within one year from the date of acquisition thereof issued by (a) any bank organized under the laws of the United States or any state thereof or the District of Columbia, or (b) any U.S. branch of a non-U.S. bank having at the date of acquisition thereof combined capital and surplus of not less than $500.0 million;

 

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(5) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clause (1) above entered into with any bank meeting the qualifications specified in clause (4) above;

(6) to the extent an Investment is made using the currency of any country generated from the operations of a Restricted Subsidiary of the Company in that country, demand deposits, certificates of deposit, time deposits or bankers’ acceptances maturing within one year from the date of acquisition thereof issued by any of the ten largest banks (based on assets as of the most recent December 31) organized under the laws of such country; provided that such bank is not under intervention, receivership or any similar arrangement at the time of making such Investment; and

(7) investments in money market funds which invest substantially all of their assets in cash in Approved Jurisdictions or in any country that is a member of the European Economic and Monetary Union (EMU) and/or securities of the types described in clauses (1) through (5) above.

“ Change of Control ” means the occurrence of any of the following:

(1) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger, amalgamation or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole to any Person (including any “person” (as that term is used in Section 13(d) of the Exchange Act)) other than the Permitted Holders;

(2) the adoption of a plan relating to the liquidation or dissolution of the Company;

(3) the consummation of any transaction (including, without limitation, any merger, amalgamation or consolidation), the result of which is that any Person (including any “person” (as defined in clause (1) above)), other than the Permitted Holders, becomes the Beneficial Owner, directly or indirectly, of more than 40% of the Voting Stock of the Company, measured by voting power rather than number of shares, and the percentage of Voting Stock Beneficially Owned by such Person exceeds the percentage of Voting Stock Beneficially Owned by the Permitted Holders, in each case measured by voting power rather than number of shares; or

(4) the first day on which a majority of the members of the Board of Directors of the Company are not Continuing Directors.

“ Clearstream ” means Clearstream Banking, S.A.

“ Collateral ” means (1) substantially all existing and future property and assets (other than Excluded Assets) of the Company and each of the Grantor Guarantors and (2) the Equity Interests, if any, owned by each of the Pledgor Guarantors in any of its Subsidiaries (except to the extent constituting Excluded Assets).

“ Collateral Agency Agreement ” means the Collateral Agency Agreement dated the date of this Indenture, among the Company, the other Grantors, the Trustee, each holder of Pari Passu Obligations that constitute Additional Secured Debt (or their duly appointed trustee, agent or other representative acting on such holders’ behalf) and the Collateral Agent, as amended, restated or amended and restated from time to time in accordance with the terms thereof and this Indenture.

 

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“ Collateral Agent ” shall have the meaning set forth in the Collateral Agency Agreement.

“ Collateral Document ” means each document purporting to grant a security interest in any Collateral to the Collateral Agent for the benefit of the Secured Debtholders or establishing the First Priority perfection or registration of such security interests, in each case as amended, restated, modified, renewed or replaced from time to time, and the Collateral Agency Agreement.

“ Colombia Notes ” means the Senior Guaranteed Notes due December 18, 2010, of Impsat Colombia.

“ Colombia Notes Indenture ” means the Indenture dated December 18, 2003, governing the Colombia Notes.

“ Company ” means Global Crossing Limited, an exempted company with limited liability formed under the laws of Bermuda, and any and all successors thereto.

“ Comparable Treasury Issue ” means, with respect to notes to be redeemed, the U.S. Treasury security selected by an Independent Investment Banker as having a maturity most nearly equal to the period from the redemption date to September 15, 2012, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities; provided that if such period is less than one year then the U.S. Treasury security having a maturity of one year shall be used.

“ Comparable Treasury Price ” means, with respect to any redemption date:

(1) the average of four Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations; or

(2) if the Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer Quotations.

“ Consolidated Cash Flow ” means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period plus , without duplication:

(1) provision for taxes based on income or profits of such Person and its Restricted Subsidiaries for such period, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income; plus

(2) the Fixed Charges of such Person and its Restricted Subsidiaries for such period, to the extent that such Fixed Charges were deducted in computing such Consolidated Net Income; plus

(3) depreciation, amortization (including amortization of intangibles, but excluding amortization of prepaid cash expenses that were paid in a prior period (other than amortization of prepaid cash expenses relating to the installation of equipment and costs of connecting customers to the Company’s network)) and other non-cash expenses (including, without limitation, non-cash expenses resulting from currency translation adjustments, but excluding any such non-cash expense to the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash expense that was paid in a prior period (other than amortization of prepaid cash expenses relating to the installation of equipment and costs of connecting customers to the Company’s network)) of such Person and its Restricted Subsidiaries for such period to the extent that such depreciation, amortization and other non-cash expenses were deducted in computing such Consolidated Net Income; plus

 

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(4) legal, accounting and other fees and expenses incurred in connection with the issuance and sale of the Notes on the date of this Indenture and the write-off of deferred financing costs from time to time; plus

(5) acquisition-related costs and restructuring reserves incurred by the Company or any of its Restricted Subsidiaries in connection with the acquisition of, merger, amalgamation or consolidation with, any Person expensed in computing such Consolidated Net Income to the extent the same would have been capitalized prior to the adoption of Statement of Financial Accounting Standards No. 141R, Business Combinations ; plus

(6) other non-recurring or unusual losses or expenses of such Person and its Restricted Subsidiaries for such period (as determined by the Company in good faith and in accordance with Regulation G, promulgated pursuant to the Securities Act and the Exchange Act) to the extent deducted in computing Consolidated Net Income; minus

(7) non-recurring or unusual gains of such Person and its Restricted Subsidiaries for such period (as determined by the Company in good faith in accordance with Regulation G, promulgated pursuant to the Securities Act and the Exchange Act). minus

(8) non-cash items increasing such Consolidated Net Income for such period (including, without limitation, non-cash gains resulting from currency translation adjustments), other than the accrual of revenue in the ordinary course of business,

in each case, on a consolidated basis and determined in accordance with GAAP.

“ Consolidated Net Income ” means, with respect to any specified Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that:

(1) the Net Income (but not loss) of any Person that is not a Subsidiary or that is accounted for by the equity method of accounting will be included only to the extent of the amount of dividends or similar distributions paid in cash to the specified Person or a Restricted Subsidiary of the Person;

(2) the Net Income (but not loss) of any Restricted Subsidiary of such Person will be excluded to the extent that a corresponding amount could not be transferred (including by way or one or more of the following: (a) dividend, (b) loan, (c) repayment of intercompany loans, (d) other conveyances) to such Person at the date of determination as a result of any restriction pursuant to the constituent documents of such Restricted Subsidiary or any law, regulation, agreement or judgment applicable to any such distribution (and the equity in any net loss of such Restricted Subsidiary shall be included in determining Consolidated Net Income);

(3) the cumulative effect of a change in accounting principles will be excluded;

(4) except for purposes of calculating Consolidated Cash Flow under Section 4.07(a)(iii)(A) hereof, the Net Income (but not loss) of any Restricted Subsidiary of such Person will be included to the extent a corresponding amount of cash held by such Restricted Subsidiary would not be subject to a Currency Restriction as of the applicable date of determination (and the equity in any net loss of such Restricted Subsidiary shall be included in determining Consolidated Net Income); and

 

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(5) the Net Income of any Unrestricted Subsidiary of such Person will be excluded, whether or not distributed to the specified Person or one of its Subsidiaries.

“ Consolidated Total Indebtedness ” means, for any Person as of any date of determination, an amount equal to the aggregate principal amount (or accreted value, as applicable) (without duplication) of all Indebtedness of such Person and its Restricted Subsidiaries on a consolidated basis outstanding at such time, with all Hedging Obligations valued at the net amount that the same are reflected as a liability upon the most recent balance sheet of the specified Person prepared in accordance with GAAP.

“ Continuing Directors ” means, as of any date of determination, any member of the Board of Directors of the Company who:

(1) was a member of such Board of Directors on the date of this Indenture; or

(2) was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination or election.

“ Corporate Trust Office of the Trustee ” will be at the address of the Trustee specified in Section 13.02 hereof or such other address as to which the Trustee may give notice to the Company.

“ Credit Facilities ” means one or more debt facilities with banks or other institutional lenders, as amended, restated, amended and restated, modified, renewed, refunded, replaced or refinanced in whole or in part from time to time, in each case providing for revolving credit loans or letters of credit.

“ Currency Restriction ” means the failure of any governmental authority of a particular jurisdiction to exchange, or to approve or permit the exchange of, currency for U.S. dollars, the unavailability of U.S. dollars in any lawful currency market in any such jurisdiction, or any other action of a governmental authority that has the effect of prohibiting or preventing such exchange or the transfer of such funds outside of any such jurisdiction, in each case for ten or more consecutive days.

“ Custodian ” means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.

“ Deeply Subordinated Debt ” means Indebtedness of the Company or any Guarantor that (1) is Subordinated Indebtedness, (2) does not require or permit any cash payment of any Obligation thereon prior to its maturity (but which may require or permit prior to the maturity thereof (x) the payment of any Obligations thereon in kind or in Equity Interests of the Company (other than Disqualified Stock) and/or (y) the conversion or exchange of such Indebtedness into Equity Interests of the Company (other than Disqualified Stock) and (3) does not mature prior to the date that is 91 days after the Stated Maturity of the Notes.

“ Default ” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.

“ Definitive Note ” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.

 

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“ Depositary ” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture.

“ Disqualified Stock ” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the date on which the Notes mature. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the Company to repurchase such Capital Stock upon the occurrence of a change of control, asset sale or event of loss will not constitute Disqualified Stock if the terms of such Capital Stock provide that the Company may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 4.07 hereof. The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that the Company and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.

“ Equity Interests ” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

“ Equity Offering ” means any public or private sale either (1) of Equity Interests of the Company (other than Disqualified Stock and other than to a Subsidiary of the Company) or (2) of Equity Interests of a direct or indirect parent entity of the Company (other than to the Company or a Subsidiary of the Company) to the extent that the net cash proceeds therefrom are contributed to the common equity capital of the Company.

“ Euroclear ” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.

“ Event of Loss ” means, with respect to any asset of the Company or any of its Restricted Subsidiaries (1) any condemnation, seizure, nationalization, expropriation or taking by exercise of the power of eminent domain or otherwise of such asset, or confiscation of such asset or the requisition of the use of such asset, in each case by any government or regulatory authority with jurisdiction over such asset and after such action has become final and non-appealable or (2) any final settlement in lieu of the actions set forth in clause (1) above.

“ Event of Loss Proceeds ” means the aggregate cash and Cash Equivalents proceeds received by the Company or any of its Restricted Subsidiaries in respect of any Event of Loss (including, without limitation, any cash and Cash Equivalents received upon the sale or other disposition of any non-cash consideration received in any Event of Loss), net of the direct costs relating to such Event of Loss, including, without limitation, legal, accounting and any relocation expenses incurred as a result of the Event of Loss, taxes paid or payable as a result of the Event of Loss, in each case, after taking into account any available tax credits or deductions and any tax sharing arrangements.

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

 

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“ Exchange Notes ” means the Notes issued in the Exchange Offer pursuant to Section 2.06(f) hereof.

“ Exchange Offer ” has the meaning set forth in the Registration Rights Agreement.

“ Exchange Registration Statement ” has the meaning set forth in the Registration Rights Agreement.

“ Excluded Assets ” means:

(1) any contract, agreement, lease or other document (and any contract rights arising thereunder and any property or assets that is the subject of or relating to any such contract, agreement, lease or document) to which any of the Grantors is a party at any time to the extent (but only to the extent) that the assignment thereof, or the creation of a Lien thereon, would (a) constitute a breach of the terms of such contract, agreement, lease or other document, or would cause a default or event of default under the terms of such contract, agreement, lease or other document, or would permit any party to such contract, agreement, lease or other document to terminate any material contract right arising under any such contract, agreement, lease or other document or to exercise any put, call, right of refusal, purchase option or other similar right, (b) permit any party to such contract, agreement, lease or other document to terminate, cancel or withdraw from such contract, agreement, lease or other document, (c) result in the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (d) require notice of assignment to be provided to any party to such contract, agreement, lease or other document, provided that such notice shall be provided to each counterparty to a contract, agreement, lease or other document (x) providing for payments (excluding prepayments) to any Grantor reasonably anticipated to exceed $1.0 million per annum during the one-year period following the date of any such notice and (y) which does not otherwise constitute an Excluded Asset under preceding sub-clauses (a), (b), or (c) (all such contracts, agreements, leases and other documents being the “ Excluded Agreements ”) (for the avoidance of doubt, it being understood that the restrictions referred to in preceding sub-clauses (a), (b), (c) and (d) are not negative pledges or similar undertakings in favor of a lender or other financial counterparty), other than, in each case of the restrictions referred to in preceding sub-clauses (a), (b), (c) and (d), to the extent that any such restrictions would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Law); provided , however , any of the Excluded Agreements (and any such property that is the subject of or relating to any such Excluded Agreement) shall automatically cease to be excluded at such time as (A) the restriction on assignment or on the creation of a Lien with respect to such agreement or other Collateral is no longer in effect or is rendered ineffective as a matter of law or (B) the applicable Grantor has obtained the consent of the other parties to such agreement to the assignment of, or creation of a Lien with respect to, the contract rights of such Grantor thereunder or other Collateral (which consent such Grantor shall not, except as set forth in Section 4.24 hereof, be required to obtain under this Indenture or the Collateral Documents);

(2) any contract, agreement, lease or other document in any jurisdiction where such contract, agreement, lease or other document must be identified with particularity in the applicable security filing or registration, unless such contract, agreement, lease or other document provides for payments to (excluding prepayments), any Grantor reasonably anticipated to be in excess of $1.0 million per calendar year;

 

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(3) any license, permit, concession, application or authorization from any governmental or regulatory authority in favor of any Grantor to the extent (but only to the extent) that the assignment thereof or the creation of a Lien thereon would (a) constitute a breach of or a default or event of default under the terms of such license, permit or authorization, (b) would require any separate license, permit, concession, application or authorization or would otherwise terminate such license, permit, concession, application or authorization, or (c) result in the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein (all of the licenses, permits, concessions, applications and authorizations referred to herein being the “ Excluded Authorizations ”); provided , however , that any of the Excluded Authorizations shall cease to be excluded at such time as (x) the restriction on assignment or on the creation of a Lien with respect to such license, permit, concession, application or authorization is no longer in effect or is rendered ineffective as a matter of law or (y) the applicable Grantor has obtained the consent of the applicable governmental or regulatory authority to the assignment of, or creation of a Lien with respect to, such license, permit, concession, application or authorization of such Grantor (which consent such Grantor shall not be required to obtain);

(4) any license, permit, concession, application or authorization in any jurisdiction in which such license, permit, concession, application or authorization must be identified with particularity in the applicable security filing or registration, unless such license, permit, concession, application or authorization is, individually, material to the business, financial condition or operations of the applicable Grantor;

(5) the Equity Interests of (a) any Immaterial Restricted Subsidiary and (b) any Subsidiary if the pledge of the Equity Interests of such Subsidiary is not required or is released in accordance with Section 10.03(a)(7) hereof;

(6) the Equity Interests and assets and property of (a) SAC Peru S.R.L., (b) GC Pan European Crossing France S.A.R.L., (c) GC SAC Argentina S.R.L. and (d) for so long as such Subsidiary remains an Excluded Restricted Subsidiary, Global Crossing Landing Mexicana S. De R.L.;

(7) (a) any leased real property of a Grantor, (b) any owned real property of a Grantor as of the date of this Indenture, except to the extent (x) constituting a Specified Site or (y) having a Book Value (including owned fixtures and improvements thereon) greater than $3.0 million for any individual or related parcels, (c) any owned real property of a Grantor acquired after (or owned by a person who becomes a Grantor after) the date of this Indenture having a Book Value (including owned fixtures and improvements thereon) for any individual or related parcels of less than $3.0 million and (d) any fixtures (including, without limitation, ductwork and conduit), except to the extent that a Lien can (if required) be perfected or otherwise evidenced under the laws of the applicable jurisdiction governing notice of security interests either automatically or by filing or registering a financing statement, charge, chattel mortgage or an equivalent filing or registration (in the case of any such fixtures having an individual Book Value in excess of the Threshold Amount, irrespective of whether any such fixture must be identified with particularity in the applicable security filing or registration) no more frequently than annually in (x) a central filing office or registry with respect to the applicable Grantor and (y) the filing office or registry of the jurisdiction of the location of any owned real property not constituting an Excluded Asset;

(8) any plant, machinery, office equipment, computers and similar tangible property (and all related rights) in any jurisdiction where any such property must be identified with particularity in the applicable security filing or registration, other than any such property having an individual Book Value in excess of the Threshold Amount located at one of the properties, premises or facilities described in clause (ii) of the proviso to clause (14) below;

 

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(9) any property or assets subject to a Lien that secures Indebtedness incurred pursuant to Section 4.09(b)(1)(or (4) to the extent of Permitted Refinancing Indebtedness refinancing Existing Indebtedness), (3), (13) and (14) hereof;

(10) any motor vehicles and other equipment subject to a certificate of title statute, up to an aggregate Book Value of $10.0 million for all such property referred to in this clause (10);

(11) certain letter of credit rights and commercial tort claims specified in the Collateral Documents;

(12) crops or farm products or as-extracted collateral;

(13) any intellectual property rights located outside of the United States;

(14) any personal property with respect to which (a) a Lien cannot, if required under the law of the applicable jurisdiction (other than the United States, the U.S. Virgin Islands, Bermuda, Canada, the United Kingdom or the Netherlands), be perfected or otherwise evidenced in accordance with applicable statutes governing notice of security interests either automatically or by filing or registering a financing statement, charge, chattel mortgage or an equivalent filing or registration in a single central filing office or registry with respect to such Grantor no more frequently than annually or, in the case of Equity Interests, by taking possession or similar process, (b) the applicable Grantor is prohibited by the laws of its jurisdiction of incorporation or organization, or by any regulatory authority to which it is subject, from suffering a Lien to exist thereon or (c) any governmental entity or regulatory authority claiming jurisdiction over any such property or asset including Equity Interests, wherever located, prohibits the existence of a Lien thereon; provided that sub-clause (a) of this clause (14) shall not exclude (i) any deposit account or securities account (or any cash, Cash Equivalents and other investment property held therein) or (ii) any property (x) located at any owned real property not constituting an Excluded Asset or (y) having an aggregate Book Value in excess of $3.0 million located at any single facility (e.g., any cable station, landing station, data center or tele-house) or premises (in each case of the preceding sub-clauses (x) and (y), (1) to the extent a Lien on such property can be perfected or otherwise evidenced in accordance with applicable statutes by filing or registering a financing statement, charge, chattel mortgage or an equivalent filing or registration no more frequently than annually in one or more additional local filing offices or registries and (2) other than equipment held temporarily at a location referred to in the preceding clause (x) or (y) pending transfer to a customer or transfer within 90 days to another premises or facility of the Company or a Subsidiary).

(15) deposit accounts and securities accounts containing an aggregate average daily balance (calculated for each calendar month as of the last Business Day of such month) not to exceed (a) $25.0 million at any time that GC Columbia is a Grantor Guarantor and (b) otherwise, $15.0 million;

(16) assets of any Pledgor Guarantor not constituting Equity Interests in any other Subsidiary;

 

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(17) any assets or property (other than cash, Cash Equivalents and Equity Interests) of any Grantor formed under the laws of Luxembourg, to the extent such assets do not have a Book Value in excess of $5.0 million at any time outstanding;

(18) any policy of insurance; provided that proceeds of insurance shall not constitute Excluded Assets to the extent the Lien granted by the Collateral Documents in the property or assets covered by such insurance would constitute Collateral in accordance with Section 9-315 of the Uniform Commercial Code or any similar provision of the applicable law of the relevant jurisdiction;

(19) the outstanding Equity Interests of Unrestricted Subsidiaries (other than the outstanding Equity Interests in GC UK);

(20) property and assets of the Grantors as of the date of this Indenture that have, in the aggregate, Book Value of less than $10.0 million with respect to which the chief financial officer of the Company determines in good faith (with such determination to be conclusive) that the cost of granting, perfecting, registering or maintaining a First Priority Lien on such property or asset is burdensome relative to the Book Value of such property or asset (or otherwise is not practicable); and

(21) other assets and property of the Grantors having an aggregate Book Value not to exceed $20.0 million at any time;

provided , that (i) any proceeds received by any Grantor from the sale, transfer or other disposition of any Excluded Asset shall constitute Collateral except to the extent such proceeds are in the form of property or assets constituting Excluded Assets and (ii) notwithstanding anything to the contrary contained in this definition, except as provided in clause (17) above, no assets or property of any Grantor formed under the laws of Luxembourg shall constitute Excluded Assets.

“ Excluded Restricted Subsidiary ” means:

(1) any Immaterial Restricted Subsidiary;

(2) any Restricted Subsidiary of the Company that is (a) prohibited by the laws of its jurisdiction of incorporation or organization, or by any regulatory authority to which it is subject, from guaranteeing the Notes, or (b) incorporated or organized in a jurisdiction for so long as the laws of such jurisdiction do not permit such Restricted Subsidiary to enter into a Note Guarantee that is Full and Unconditional guarantee of all of the Company’s Obligations under the Notes and this Indenture incurred on the date of this Indenture (and any related Exchange Notes issued pursuant to the Registration Rights Agreement), without significant risk of civil or criminal liability, all as determined by the Company in consultation with its counsel, in each case under clauses (a) and (b) above, until such date as the Company and its counsel determine that clauses (a) and (b) above no longer apply to such Restricted Subsidiary;

(3) Impsat Colombia until the earlier of (a) the time that the Colombia Notes Indenture no longer prohibits the guarantee of the Notes by Impsat Colombia and (b) the repayment, defeasance, discharge, repurchase, cancellation or extinguishment of the Colombia Notes, whether at final maturity on December 18, 2010, or otherwise;

 

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(4) any Limited Guarantor the Note Guarantee of which is released in accordance with Sections 11.05 hereof until such time (if any) as such Limited Guarantor enters into a new guarantee in accordance with Section 4.19 hereof;

(5) SAC Peru S.R.L.;

(6) GC Pan European Crossing France S.A.R.L.;

(7) GC SAC Argentina S.R.L. and GC Argentina; and

(8) the Global Crossing Landing Mexicana S. De R.L., so long as such Subsidiary is not a direct or indirect wholly owned Subsidiary of the Company.

“ Existing Indebtedness ” means Indebtedness of the Company and its Restricted Subsidiaries in existence on the date of this Indenture, other than Capital Leases Obligations, mortgage financings and purchase money obligations in existence on the date of this Indenture, until such amounts are repaid.

“ Fair Market Value ” means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party, as determined in good faith by (1) the chief financial officer of the Company, if such value is equal to or less than $35.0 million and (2) the Board of Directors of the Company, if such value exceeds $35.0 million, in each case unless otherwise provided in this Indenture).

“ First Priority ” means (1) with respect to any Lien purported to be created on any Equity Interests in any Subsidiary of the Company pursuant to any Collateral Document, that such Lien is a duly perfected or registered first priority Lien (subject to Permitted Liens of the type listed in clauses (3), (4), (7), (18), (19) and (22) in the definition thereof) in such Equity Interests and (2) with respect to any Lien purported to be created on any other asset pursuant to any Collateral Document, that such Lien is a duly perfected or registered first priority Lien (subject to Permitted Liens) in such asset.

“Fixed Charges” means, with respect to any specified Person for any period, the sum, without duplication, of:

(1) the consolidated interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued, including, without limitation, amortization of debt issuance costs and original issue discount, non-cash interest payments (including interest calculations in accordance with FASB Staff Position No. APB 14-1 for all purposes other than determining Fixed Charges under Section 4.07(a)(iii)(A) hereof), the interest component of any deferred payment obligations or contingent obligations, the interest component of all payments associated with Capital Lease Obligations, imputed interest with respect to Attributable Debt, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings and late payment charges, and net of the effect of all payments made or received pursuant to Hedging Obligations in respect of interest rates; plus

(2) the consolidated interest expense of such Person and its Restricted Subsidiaries that was capitalized during such period; plus

(3) any interest on Indebtedness of another Person that is guaranteed by such Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries, whether or not such Guarantee or Lien is called upon; plus

 

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(4) the product of (a) all dividends, whether paid or accrued and whether or not in cash, on any series of preferred stock of such Person or any of its Restricted Subsidiaries, other than dividends on Equity Interests payable solely in Equity Interests of the Company (other than Disqualified Stock) or to the Company or any of its Restricted Subsidiaries, times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state and local statutory tax rate of such Person, expressed as a decimal, in each case, determined on a consolidated basis in accordance with GAAP.

“ Full and Unconditional ” has the meaning set forth in Rule 3-10 of Regulation S-X promulgated pursuant to the Securities Act or any successor rule.

“ GAAP ” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, as in effect on the date of this Indenture.

“ GC UK ” means Global Crossing (UK) Telecommunications Limited, a company organized under the laws of England and Wales.

“ GC UK Intercompany Debt ” means the Obligations in pounds sterling owing to GC UK in respect of Indebtedness issued pursuant to:

(1) the Inter-Company Credit Agreement, dated as of April 2006, between and among Global Crossing (UK) Telecommunications Limited, as lender, the Company Europe Limited, as borrower, and the Company Limited, as guarantor, as amended from time to time prior to the date of this Indenture;

(2) the Guarantee, dated as of April 2006, by Global Crossing Limited, as guarantor, in favour of Global Crossing (UK) Telecommunications Limited, as beneficiary, as amended from time to time prior to the date of this Indenture; and

(3) all borrowing requests thereunder.

“ Global Note Legend ” means the legend set forth in Section 2.06(g)(2) hereof, which is required to be placed on all Global Notes issued under this Indenture.

“ Global Notes ” means, individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes deposited with or on behalf of and registered in the name of the Depositary or its nominee, substantially in the form of Exhibit A hereto and that bears the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, issued in accordance with Section 2.01, 2.06(b)(3), 2.06(b)(4), 2.06(d)(2) or 2.06(f) hereof.

“ Government Securities ” means the direct obligations of, or obligations guaranteed by, the United States of America, and the payment for which the United States pledges its full faith and credit.

“ Grantor Guarantor ” means each Guarantor that is not a Pledgor Guarantor; provided that, in the case of any Grantor Guarantor formed, acquired or designated as such after the date of this Indenture, Section 4.19 (if applicable) and Section 4.23 hereof have been complied with in respect of such Grantor Guarantor.

 

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“ Grantors ” means, collectively, the Company, the Grantor Guarantors and the Pledgor Guarantors (even though at any given time some Pledgor Guarantors may not actually pledge any Equity Interests in Subsidiaries).

“ Guarantee ” means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise).

“ Guarantor ” means:

(1) each Restricted Subsidiary of the Company existing on the date of this Indenture that is not an Excluded Restricted Subsidiary on the date of this Indenture; and

(2) any Subsidiary of the Company that executes a Note Guarantee in accordance with the provisions of this Indenture,

and their respective successors and assigns, in each case, until the Note Guarantee of such Person has been released in accordance with the provisions of this Indenture. For the avoidance of doubt, all Grantors other than the Company are Guarantors.

“ Hedging Obligations ” means, with respect to any specified Person, the obligations of such Person under:

(1) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements;

(2) other agreements or arrangements designed to manage interest rates or interest rate risk;

(3) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices; and

(4) other agreements with respect to one or more options or other derivative transactions entered into in connection with the issuance of convertible Indebtedness.

“ Holder ” means a Person in whose name a Note is registered.

“ IAI Global Note ” means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes sold to Institutional Accredited Investors .

“ Immaterial Restricted Subsidiary ” means (1) as of any date, any Restricted Subsidiary of the Company that has, as of such date, Specified Tangible Assets with a Book Value of less than $500,000 and which either (x) had less than $500,000 in total revenues for its most recently ended four full fiscal quarters or (y) is not reasonably expected by the chief financial officer of the Company to generate revenues at any time after such date due to the sale, disposition or discontinuation of such Subsidiary’s assets or operations, (2) each of GC Hungary Holdings Property Management LLC, Geoconference

 

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Limited, Global Crossing Conferencing Limited, Global Crossing PEC Czech s.r.o, Global Crossing PEC Norge AS and Global Crossing PEC Ostereich GmbH and (3) each of Atlantic Crossing Holdings UK Limited, Corlew Investment, S.A., Deason Investment, S.A., Fibernet Quest Limited, GC Colombiana Ltda., Global Crossing Network Center (UK) Ltd., GT U.K. Ltd., International Optical Network Limited, International Satellite Communication Holding Aktiengesellschaft, Mid-Atlantic Crossing Holdings UK Ltd., SAC Colombia Ltda. and Telcontrol, S.A. de C.V., so long as such Subsidiaries are liquidated or commence liquidation within 12 months of the date of this Indenture. Notwithstanding the foregoing, the Company may elect from time to time, in its sole discretion (any such election shall be made in an Officer’s Certificate delivered to the Trustee), to cause any Subsidiary that otherwise meets the definition of Immaterial Restricted Subsidiary to not constitute an Immaterial Restricted Subsidiary, whereupon such Subsidiary shall cease to be an Immaterial Restricted Subsidiary.

“ Impsat Colombia ” means Global Crossing Colombia S.A., a Colombian company.

“ Indebtedness ” means, with respect to any specified Person, any indebtedness of such Person (excluding accrued expenses and trade payables), whether or not contingent:

(1) in respect of borrowed money;

(2) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);

(3) in respect of banker’s acceptances;

(4) representing Capital Lease Obligations or Attributable Debt in respect of sale and leaseback transactions;

(5) representing the balance deferred and unpaid of the purchase price of any property or services due more than six months after such property is acquired or such services are completed; or

(6) representing any Hedging Obligations,

if and to the extent any of the preceding items (other than letters of credit, Attributable Debt and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person.

“ Indenture ” means this Indenture, as amended or supplemented from time to time.

“ Independent Investment Banker ” means Goldman, Sachs & Co., Credit Suisse Securities (USA) LLC or J.P. Morgan Securities Inc. and their respective successors, or, if such firms or their respective successors, if any, as the case may be, are unwilling or unable to select the Comparable Treasury Issue, an independent investment banking institution of national standing appointed by the Company.

“ Indirect Participant ” means a Person who holds a beneficial interest in a Global Note through a Participant.

 

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“ Initial Notes ” means the $750,000,000 aggregate principal amount of Notes issued under this Indenture on the date hereof.

“ Initial Pledgor Guarantor ” means each of Global Crossing Australia Pty. Limited, Global Crossing Belgie b.v.b.a., Global Crossing Comunicaciones Ecuador S.A., Global Crossing Costa Rica SRL, Global Crossing Cyprus Holdings Limited, Global Crossing Japan KK, Global Crossing PEC Belgium b.v.b.a., Global Crossing PEC Danmark A.p.S., Global Crossing PEC Switzerland AG, Global Crossing Singapore Pte. Ltd., Global Crossing Sverige AB and Global Crossing Venezuela S.A.; provided , however , that any Initial Pledgor Guarantor shall constitute an Initial Pledgor Guarantor only until such time as such Initial Pledgor Guarantor is redesignated by the chief financial officer of the Company as a Grantor Guarantor in a written notice to the Collateral Agent (subject to compliance with Section 4.23 hereof). For the avoidance of doubt, each Initial Pledgor Guarantor will guarantee the Notes but not grant a Lien on its property or assets other than a pledge of the Equity Interests of its Subsidiaries (except that an Initial Pledgor Guarantor will not pledge the Equity Interests of Subsidiaries to the extent that (x) it does not have any Subsidiaries, (y) the pledge of the Equity Interests of the relevant Subsidiary is not required or is released in accordance with Section 10.03(a)(7) hereof or (z) such Equity Interests otherwise constitute Excluded Assets.

“ Initial Purchasers ” means Goldman, Sachs & Co., Credit Suisse Securities (USA) LLC, J.P. Morgan Securities Inc. and Jeffries & Company, Inc.

“ Institutional Accredited Investor ” means an institution that is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who are not also QIBs.

“ Investments ” means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other obligations), advances or capital contributions (excluding the extension of trade credit and deposits, in each case in the ordinary course of business in accordance with customary practice and on reasonable terms, and commission, travel and similar advances to officers, directors and employees made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. If the Company or any of its Subsidiaries sells or otherwise disposes of any Equity Interests of any direct or indirect Subsidiary of the Company such that, after giving effect to any such sale or disposition, such Person is no longer a Subsidiary of the Company, the Company will be deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the Company’s Investments in such Subsidiary that were not sold or disposed of in an amount determined pursuant to Section 4.07(c) hereof. The acquisition by the Company or any of its Subsidiaries of a Person that holds an Investment in a third Person will be deemed to be an Investment by the Company or such Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third Person in an amount determined pursuant to Section 4.07(c) hereof. Except as otherwise provided in this Indenture, the amount of an Investment will be determined at the time the Investment is made and without giving effect to subsequent changes in value.

“ Latin American Grantor ” means each Restricted Subsidiary of the Company organized under the laws of Brazil, Chile, Mexico, Panama or Peru that as of the date of this Indenture is a Grantor Guarantor.

“ Legacy Latin American Grantors ” means those Latin American Grantors that were part of our Latin American operations prior to the Impsat acquisition on May 9, 2007 and that were not subsequently transferred to our GC Impsat segment. These subsidiaries include Global Crossing Mexicana II; S. De R.L. de C.V.; Global Crossing Mexicana, S. de R.L. de C.V.; Global Crossing Servicios, S. de R. L. de C.V.; Global Crossing Panama, Inc.; SAC Panama, S.A.; the Panamanian branch of PAC Panama Ltd.; Telecom Infrastructure Hardware S.R.L.; SAC Brasil SA; and SAC Brasil Holding Ltda.

 

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“ Legal Holiday ” means a Saturday, a Sunday or a day on which banking institutions in the City of New York or at a place of payment are authorized by law, regulation or executive order to remain closed. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on such payment for the intervening period.

“ Letter of Transmittal ” means the letter of transmittal to be prepared by the Company and sent to all Holders of the Notes for use by such Holders in connection with the Exchange Offer.

“ Leverage Ratio ” means, with respect to any specified Person as of any date of determination, the ratio of (1) the Consolidated Total Indebtedness of such Person as of such date to (2) the Consolidated Cash Flow of such Person for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding such date (the “ Four Quarter Period ”). In the event that the specified Person or any of its Restricted Subsidiaries incurs, assumes, guarantees, repays, repurchases, redeems, defeases or otherwise discharges any Indebtedness (other than ordinary working capital borrowings) or issues, repurchases or redeems preferred stock subsequent to the Four Quarter Period for which the Leverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Leverage Ratio is made (the “ Ratio Date ”), then the Leverage Ratio will be calculated giving pro forma effect to such incurrence, assumption, guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness, or such issuance, repurchase or redemption of preferred stock, and the use of the proceeds therefrom, as if the same had occurred at the beginning of the applicable Four Quarter Period.

In addition, for purposes of calculating the Leverage Ratio:

(1) acquisitions that have been made by the specified Person or any of its Restricted Subsidiaries, including through mergers, amalgamations or consolidations, or any Person or any of its Restricted Subsidiaries acquired by the specified Person or any of its Restricted Subsidiaries, and including any related financing transactions and including increases in ownership of Restricted Subsidiaries, during the applicable Four Quarter Period or subsequent to such period and on or prior to the Ratio Date will be given pro forma effect (in accordance with Regulation S-X, promulgated pursuant to the Securities Act) as if they had occurred on the first day of the applicable Four Quarter Period;

(2) the Consolidated Cash Flow attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the Ratio Date, will be excluded;

(3) the Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the Ratio Date, will be excluded, but only to the extent that the obligations giving rise to such Fixed Charges will not be obligations of the specified Person or any of its Restricted Subsidiaries following the Ratio Date;

(4) any Person that is a Restricted Subsidiary of the specified Person on the Ratio Date will be deemed to have been a Restricted Subsidiary of the specified Person at all times during the applicable Four Quarter Period;

 

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(5) any Person that is not a Restricted Subsidiary of the specified Person on the Ratio Date will be deemed not to have been a Restricted Subsidiary of the specified Person at any time during the applicable Four Quarter Period; and

(6) if any Indebtedness bears a floating rate of interest, the interest expense on such Indebtedness will be calculated as if the rate in effect on the Ratio Date had been the applicable rate for the entire period (taking into account any Hedging Obligation applicable to such Indebtedness if such Hedging Obligation has a remaining term as at the Ratio Date in excess of 12 months).

“ Lien ” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected or registered under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.

“ Limited Guarantor ” means each of the following Restricted Subsidiaries of the Company: (1) Global Crossing Telecommunications, Inc., (2) Budget Call Long Distance, Inc., (3) Global Crossing North American Networks, Inc., (4) Global Crossing Local Services, Inc., and (5) Global Crossing Telemanagement, Inc., in each case until such entity executes a new Note Guarantee pursuant to which it provides a Full and Unconditional guarantee of all Obligations of the Company under the Notes and this Indenture incurred on the date of this Indenture (and any related Exchange Notes issued pursuant to the Registration Rights Agreement).

“ Limited Note Guarantee ” means, with respect to a Limited Guarantor Subsidiary, the Note Guarantee executed by such Limited Guarantor Subsidiary on the date of this Indenture.

“ Moody’s ” means Moody’s Investors Service, Inc.

“ Net Income ” means, with respect to any specified Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends, excluding, however:

(1) any gain or loss, together with any related provision for taxes on such gain or loss, realized in connection with: (a) any asset sale; or (b) the disposition of any securities by such Person or any of its Restricted Subsidiaries or the extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries; and

(2) any extraordinary gain or loss, together with any related provision for taxes on such extraordinary gain or loss.

“ Net Proceeds ” means the aggregate cash and Cash Equivalents proceeds received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash and Cash Equivalents received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of the direct costs relating to such Asset Sale, including, without limitation, legal, accounting and investment banking fees, and sales commissions, and any relocation expenses incurred as a result of the Asset Sale, taxes paid or payable as a result of the Asset Sale, in each case, after taking into account any available tax credits or deductions and any tax sharing arrangements, and any reserve for adjustment in respect of the sale price of such asset or assets established in accordance with GAAP.

 

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“ Non-Recourse Debt ” means Indebtedness:

(1) as to which neither the Company nor any of its Restricted Subsidiaries (a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness (other than the pledge of Equity Interests of an Unrestricted Subsidiary that are not required to constitute Collateral under this Indenture or the Collateral Documents)) or (b) is directly or indirectly liable as a guarantor or otherwise; and

(2) as to which the lenders have been notified in writing that they will not have any recourse to the stock or assets of the Company or any of its Restricted Subsidiaries (other than Equity Interests of an Unrestricted Subsidiary that are not required to constitute Collateral under this Indenture or the Collateral Documents).

“ Non-U.S. Person ” means a Person who is not a U.S. Person.

“ Note Guarantee ” means the Guarantee by each Guarantor of the Company’s Obligations under this Indenture and the Notes, executed pursuant to the provisions of this Indenture, including without limitation each Limited Note Guarantee.

“ Notes ” has the meaning assigned to it in the preamble to this Indenture. The Initial Notes and the Additional Notes shall be treated as a single class for all purposes under this Indenture, and unless the context otherwise requires, all references to the Notes shall include the Initial Notes and any Additional Notes.

“ Obligations ” means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.

“ Offering Circular ” means the confidential offering circular, dated September 11, 2009, with respect to the initial offer and sale of the Notes and guarantees by the Company and the guarantors.

“ Officer ” means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such Person.

“ Officer’s Certificate ” means a certificate signed on behalf of the Company by an Officer of the Company that meets the requirements of Section 13.05 hereof.

“ Opinion of Counsel ” means an opinion from legal counsel who is reasonably acceptable to the Trustee, that meets the requirements of Section 13.05 hereof. The counsel may be an employee of or counsel to the Company, any Subsidiary of the Company or the Trustee.

“ Pari Passu Obligations ” means all Obligations of the Company or any of its Restricted Subsidiaries in respect of any Indebtedness:

(1) for borrowed money owed to revolving lenders or the administrative agent for such lenders, letter of credit providers or other creditors and secured by a Lien on the Collateral pursuant to, and to the extent permitted by, clause (21)(a) of the definition of Permitted Liens;

(2) representing Hedging Obligations incurred by the Company or any Grantor Guarantor secured by a Lien on Collateral pursuant to, and to the extent permitted by, clause (21)(b) of the definition of Permitted Liens, all of which Hedging Obligations shall be valued at the net amount that the same are reflected as a liability upon the most recent consolidated balance sheet of the Company prepared in accordance with GAAP;

 

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(3) incurred pursuant to Section 4.09(a) hereof secured by a Lien on the Collateral pursuant to, and to the extent permitted by, clause (20) of the definition of Permitted Liens, and any Permitted Refinancing Indebtedness in respect of such Indebtedness incurred in reliance on Section 4.09(b)(4) hereof, secured by a Lien on the Collateral pursuant to, and to the extent permitted by, clause (18) of the definition of Permitted Liens; or

(4) secured by a Lien on the Collateral to the extent permitted by clause (23) or (24) of the definition of Permitted Liens;

provided in each case that the obligees (or any duly appointed trustee, agent or other representative acting on behalf of such obligees) of such Obligations have become parties to the Collateral Agency Agreement in accordance with the provisions thereof.

“ Participant ” means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).

“ Permitted Business ” means the business or businesses conducted by the Company and its Restricted Subsidiaries as of the date of this Indenture and any business reasonably ancillary, complimentary similar or related thereto.

“ Permitted Holder ” means (1) Temasek Holdings (Private) Limited (investment company) and any of its Subsidiaries and (2) STT and any of its Subsidiaries.

“ Permitted Investments ” means:

(1) Investments:

(a) (i) by the Company in any Grantor Guarantor or (ii) by any Restricted Subsidiary of the Company in the Company or any Grantor Guarantor (or in any Person that, as a result of the relevant Investment (x) becomes a Grantor Guarantor or (y) is merged, amalgamated or consolidated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Company or a Grantor Guarantor);

(b) by any Pledgor Guarantor or any Excluded Restricted Subsidiary in any other Restricted Subsidiary of the Company (or in any Person that, as a result of the relevant Investment (x) becomes a Restricted Subsidiary of the Company or (y) is merged, amalgamated or consolidated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Company or a Restricted Subsidiary of the Company); and

(c) by the Company or any Grantor Guarantor in any Restricted Subsidiary that is not a Grantor Guarantor (or in any Person that, as a result of the relevant Investment (x) becomes a Restricted Subsidiary that is not a Grantor Guarantor or (y) is merged, amalgamated or consolidated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, a Restricted Subsidiary that is not a Grantor Guarantor) at any time as long as (immediately after giving pro forma effect to any reduction in Book Value of the Specified Tangible Assets resulting from (i) such

 

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Investment and any other Investments made pursuant to this clause (1)(c) and (ii) any Restricted Investment by the Company or any Grantor Guarantor in any Restricted Subsidiary that is not a Grantor Guarantor made pursuant to Section 4.07(a) hereof, in each case after the end of the most recent fiscal quarter as if the same were made on such date) the aggregate Book Value of the Specified Tangible Assets of the Company and the Grantor Guarantors organized in Approved Jurisdictions, taken as a whole, is equal to or greater than $1.0 billion;

(2) any Investment in Cash Equivalents;

(3) any Investment (a) made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with Section 4.10 hereof or (b) received in connection with an Event of Loss;

(4) any acquisition of assets or Capital Stock solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Company;

(5) any Investments received in compromise or resolution of (a) obligations of trade creditors or customers that were incurred in the ordinary course of business of the Company or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer or (b) any litigation, arbitration or other dispute;

(6) Investments represented by Hedging Obligations;

(7) loans or advances to employees made in the ordinary course of business of the Company or any Restricted Subsidiary of the Company in an aggregate principal amount not to exceed $4.0 million at any one time outstanding;

(8) Investments by the Company or any of its Restricted Subsidiaries in any third-party financial institution in the form of cash deposits, and which an amount equivalent to such investment is lent by such financial institution, including any affiliates thereof, to another Restricted Subsidiary of the Company;

(9) repurchases of the Notes and related guarantees or of the Exchange Notes and related guarantees;

(10) netting of intercompany balances, including changing underlying currencies, and/or conversion of intercompany balances into capital contributions among the Company and its Restricted Subsidiaries (in each case to the extent the making of such intercompany balances constituted an Investment when made) in transactions that do not involve the transfer of any cash or assets (other than the conversion of intercompany receivables into a capital contribution) and consistent with the practices and policies of the Company in effect on the date of this Indenture;

(11) any Investment (including Investments in Subsidiaries) existing on, or made pursuant to written agreements existing on, the date of this Indenture and any Investment consisting of an extension or renewal of any Investment existing on, or made pursuant to a written agreement existing on, the date of this Indenture; and

 

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(12) other Investments made after the date of this Indenture in any Person engaged in a Permitted Business having an aggregate Fair Market Value, when taken together with all other Investments made pursuant to this clause (12) that are at the time outstanding, not to exceed $25.0 million; provided that the aggregate amount of Investments outstanding at any time pursuant to this clause (12) shall be reduced (without reducing the aggregate availability of this clause (12)) by an amount equal to the net reduction in Investments made by the Company and its Restricted Subsidiaries pursuant to this clause (12) after the date of this Indenture resulting from, without duplication (a) repayments of loans or advances or payment of return of equity contributions in the form of dividends or distributions, as the case may be, in each case to the Company or the Restricted Subsidiary that initially made such Investment, from such Investment, (b) the net cash proceeds received by the Company or any Restricted Subsidiary that made any such Investment from the sale of such Investment, (c) a redesignation of an Unrestricted Subsidiary that was the recipient of such Investment as a Restricted Subsidiary that is a Grantor Guarantor so long as at such time such Investment would not constitute a Restricted Investment by such Unrestricted Subsidiary that is redesignated or (d) with respect to Investments by any the Company or any Grantor Guarantor in any Pledgor Guarantor or Excluded Restricted Subsidiary, upon such Pledgor Guarantor or Excluded Restricted Subsidiary becoming a Grantor Guarantor (whether by designation in accordance with Section 4.21 hereof or by merger, amalgamation, consolidation or liquidation with or into, the Company or a Grantor Guarantor) or upon the transfer or conveyance of substantially all of the assets of such Pledgor Guarantor or Excluded Restricted Subsidiary to the Company or a Grantor Guarantor, in any such case described in clauses (a) through (d) above, not to exceed the amount of the Investment previously made by the Company or any of its Restricted Subsidiaries (or in the case of clause (d), by the Company or a Grantor Guarantor) in such Person in reliance on this clause (12);

provided , however , that no Investment made pursuant to clause (1), (6), (8) or (12) above in any Person organized or located in Venezuela or any jurisdiction that is at such time subject to a Currency Restriction shall be made by a Person organized or located outside of Venezuela or such jurisdiction, as the case may be.

“ Permitted Liens ” means:

(1) Liens on assets of the Company and its Restricted Subsidiaries created by this Indenture and the Collateral Documents with respect to the Notes and Note Guarantees issued on the date of this Indenture and the Exchange Notes and the related Note Guarantees to be issued pursuant to the Registration Rights Agreement;

(2) Liens in favor of the Company or any of the Grantor Guarantors;

(3) Liens on property of a Person existing at the time such Person becomes a Restricted Subsidiary of the Company or is merged with or into or consolidated or amalgamated with the Company or any Grantor Guarantor; provided that such Liens were in existence prior to the contemplation of such Person becoming a Grantor Guarantor or such merger, amalgamation or consolidation and do not extend to any assets other than those of the Person that becomes a Grantor Guarantor or is merged into or consolidated or amalgamated with the Company or a Grantor Guarantor;

(4) Liens on property (including Capital Stock) existing at the time of acquisition of the property by the Company or any Subsidiary of the Company; provided that such Liens were in existence prior to, such acquisition, and not incurred in contemplation of, such acquisition;

 

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(5) Liens incurred or deposits made in the ordinary course of business (a) in connection with workers’ compensation, unemployment insurance and other types of social security (including any Lien securing letters of credit issued in the ordinary course of business consistent with past practice in connection therewith) or (b) to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money);

(6) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by of Section 4.09(b)(3) hereof covering only the assets acquired with or financed by such Indebtedness (including improvements and accessions to such assets or proceeds or distributions thereof);

(7) Liens existing on the date of this Indenture;

(8) Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided that any reserve or other appropriate provision as is required in conformity with GAAP has been made therefor;

(9) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens imposed by law (including tax Liens) incurred in the ordinary course of business for sums not yet delinquent or being contested in good faith, if such reserve or other appropriate provision, if any, as shall be required by GAAP shall have been made in respect thereof;

(10) encumbrances, ground leases, easements or reservations of, or rights of others for, licenses, rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, and zoning, building codes or other restrictions (including, without limitation, minor defects or irregularities in title and similar encumbrances), which do not in the aggregate materially adversely affect the value of material properties or materially impair their use in the operation of the business of the Company and its Restricted Subsidiaries;

(11) Liens constituting any interest of title of a lessor, a licensor or either’s creditors in the property subject to any lease (other than a capital lease), and leases, subleases, licenses or sublicenses granted to any other Person that do not materially interfere with the ordinary course of business of the Company or any Restricted Subsidiary of the Company;

(12) Liens arising from Uniform Commercial Code financing statement filings (or similar filings in other applicable jurisdictions) regarding operating leases entered into by the Company and its Restricted Subsidiaries in the ordinary course of business;

(13) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

(14) Liens securing reimbursement obligations with respect to commercial letters of credit which encumber documents and other property relating to such letters of credit and products and proceeds thereof;

 

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(15) Liens encumbering deposits made to secure obligations arising from statutory, regulatory, contractual, or warranty requirements of the Company or a Restricted Subsidiary of the Company, including rights of offset and set-off;

(16) Liens arising out of conditional sale, title retention, hire purchase, consignment or similar arrangement for the sale of goods entered into in the ordinary course of business;

(17) judgment Liens not giving rise to an Event of Default so long as such Lien is adequately bonded and any appropriate legal proceedings which may have been duly initiated for the review of such judgment have not been finally terminated or the period within which such proceeding may be initiated has not expired;

(18) Liens to secure any Permitted Refinancing Indebtedness permitted to be incurred under this Indenture; provided , however , that:

(a) the new Lien shall be limited to all or part of the same property and assets that secured or, under the written agreements pursuant to which the original Lien arose, could secure the original Lien (plus improvements and accessions to, such property or proceeds or distributions thereof); and

(b) the Indebtedness secured by the new Lien is not increased to any amount greater than the sum of (x) the outstanding principal amount, or, if greater, committed amount, of the Permitted Refinancing Indebtedness and (y) an amount necessary to pay any fees and expenses, including premiums, related to such renewal, refunding, refinancing, replacement, defeasance or discharge;

(19) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation or export of goods in the ordinary course of business;

(20) Liens on any of the Collateral securing Indebtedness incurred in compliance with Section 4.09 hereof; provided that (a) at the time of creation of any such Indebtedness and after giving pro forma effect thereto, the Company satisfies the Priority Leverage Ratio Test and (b) either the Liens incurred pursuant to this clause are junior to the Liens described under clause (1) above or the obligees (or any duly appointed trustee, agent or other representative acting on behalf of such obligees) of the Indebtedness secured by the Liens incurred pursuant to this clause has become a party to the Collateral Agency Agreement with respect to such Liens;

(21) Liens on Collateral securing Indebtedness (a) incurred pursuant to Section 4.09(b)(15) hereof and/or securing Hedging Obligations with respect thereto and/or securing Obligations under Treasury Management Arrangements with respect thereto and (b) representing Hedging Obligations incurred by the Company or any Grantor Guarantor pursuant to Section 4.09(b)(8) hereof; provided that either the Liens incurred pursuant to this clause are junior to the Liens described under clause (1) above or the obligees (or any duly appointed trustee, agent or other representative acting on behalf of such obligees) of the Indebtedness incurred pursuant to this clause have become party to the Collateral Agency Agreement with respect to such Liens;

(22) non-consensual Liens imposed in jurisdictions outside of the United States, the U.S. Virgin Islands, Bermuda, the United Kingdom, Canada, Luxembourg or the Netherlands to the extent not arising out of the incurrence of indebtedness for borrowed money; provided that the Company or the applicable Restricted Subsidiary of the Company exercises commercially reasonable efforts to cause such Lien to be discharged or released;

 

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(23) Liens not otherwise permitted pursuant to the preceding clauses (1) through (22) securing obligations that do not exceed $15.0 million in the aggregate at any one time outstanding; provided that either the Liens incurred pursuant to this clause are junior to the Liens described under clause (1) above or the obligees (or any duly appointed trustee, agent or other representative acting on behalf of such obligees) of the Indebtedness incurred pursuant to this clause has become party to the Collateral Agency Agreement with respect to such Liens; and

(24) Liens not otherwise permitted pursuant to the preceding clauses (1) through (23) securing obligations that do not exceed $10.0 million in the aggregate at any one time outstanding.

“ Permitted Refinancing Indebtedness ” means any Indebtedness of the Company or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge other Indebtedness of the Company or any of its Restricted Subsidiaries (other than intercompany Indebtedness); provided that:

(1) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness renewed, refunded, refinanced, replaced, defeased or discharged (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith);

(2) such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged;

(3) if the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged is subordinated in right of payment to the Notes or any Note Guarantee, such Permitted Refinancing Indebtedness is subordinated in right of payment to, the Notes or such Note Guarantee on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged; and

(4) such Indebtedness is incurred either by the Company or by the Restricted Subsidiary of the Company that is the obligor on the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged.

“ Person ” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.

“ Pledgor Guarantor ” means any Initial Pledgor Guarantor or any Specified Pledgor Guarantor.

“ Priority Debt ” means, for any Person as of any date of determination, an amount equal to the sum of the aggregate principal amount (or accreted value, as applicable) (without duplication) of all Indebtedness secured by Liens on the Collateral, in each case of such Person and its Restricted Subsidiaries on a consolidated basis outstanding at such time.

 

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“ Priority Leverage Ratio ” means, as of any date of determination, the ratio of (1) Priority Debt as of such date to (2) the Consolidated Cash Flow of the Company and its Restricted Subsidiaries for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding such date (the “ Priority Four Quarter Period ”). In the event that the Company or any of its Restricted Subsidiaries incurs, assumes, guarantees, repays, repurchases, redeems, defeases or otherwise discharges any Priority Debt (other than ordinary working capital borrowings) subsequent to the Priority Four Quarter Period for which the Priority Leverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Priority Leverage Ratio is made (the “ Priority Ratio Date ”), then the Priority Leverage Ratio will be calculated giving pro forma effect to such incurrence, assumption, guarantee, repayment, repurchase, redemption, defeasance or other discharge of such Priority Debt, and the use of the proceeds therefrom, as if the same had occurred at the beginning of the applicable Priority Four Quarter Period.

In addition, for purposes of calculating the Priority Leverage Ratio:

(1) acquisitions that have been made by the Company or any of its Restricted Subsidiaries, including through mergers, amalgamations or consolidations, or any Person or any of its Restricted Subsidiaries acquired by the Company or any of its Restricted Subsidiaries, and including any related financing transactions and including increases in ownership of Subsidiaries, during the applicable Priority Four Quarter Period or subsequent to such period and on or prior to the Priority Ratio Date will be given pro forma effect (in accordance with Regulation S-X, promulgated pursuant to the Securities Act) as if they had occurred on the first day of the applicable Priority Four Quarter Period;

(2) the Consolidated Cash Flow attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the Priority Ratio Date, will be excluded;

(3) the Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the Priority Ratio Date, will be excluded, but only to the extent that the obligations giving rise to such Fixed Charges will not be obligations of the Company or any of its Restricted Subsidiaries following the Priority Ratio Date;

(4) any Person that is a Restricted Subsidiary of the specified Person on the Priority Ratio Date will be deemed to have been a Restricted Subsidiary of the specified Person at all times during the applicable Priority Four Quarter Period;

(5) any Person that is not a Restricted Subsidiary of the specified Person on the Priority Ratio Date will be deemed not to have been a Restricted Subsidiary of the specified Person at any time during the applicable Priority Four Quarter Period; and

(6) if any Indebtedness bears a floating rate of interest, the interest expense on such Indebtedness will be calculated as if the rate in effect on the Priority Ratio Date had been the applicable rate for the entire period (taking into account any Hedging Obligation applicable to such Indebtedness if such Hedging Obligation has a remaining term as at the Priority Ratio Date in excess of 12 months).

“ Priority Leverage Ratio Test ” has the meaning ascribed to such term as set forth under Section 5.01(a)(5)(b) hereof.

 

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“ Private Placement Legend ” means the legend set forth in Section 2.06(g)(1) hereof to be placed on all Notes issued under this Indenture except where otherwise permitted by the provisions of this Indenture.

“ QIB ” means a “qualified institutional buyer” as defined in Rule 144A.

“ Qualified Jurisdictions ” means each of Bermuda, the Cayman Islands, Ireland, Switzerland, the United Kingdom, the United States, any state of the United States and the District of Columbia.

“ Qualified Preferred Stock ” means preferred stock that, on or prior to the date that is 91 days after the date on which the Notes mature, (1) does not mature and is not redeemable, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable) or upon the happening of any event, pursuant to a sinking fund obligation or otherwise, in whole or in part and (2) does not require or permit any payment of dividends or other cash payment in respect thereof (but which may require or permit the payment of dividends thereon in kind or in Qualified Preferred Stock).

“ Quarterly Specified Tangible Assets Reduction Amount ” means, for any fiscal quarter, an amount equal to the decrease (if any) in the aggregate Book Value of the Specified Tangible Assets of the Company and the Grantor Guarantors organized in Approved Jurisdictions as of the end of such fiscal quarter, excluding any Specified Tangible Assets received during such fiscal quarter that increase the amount calculated pursuant to Section 4.07(a)(iii) hereof pursuant to clauses (E) through (H) thereof (as set forth in the Specified Tangible Assets Calculation for such fiscal quarter) from the aggregate Book Value of the Specified Tangible Assets of the Company and the Grantor Guarantors organized in Approved Jurisdictions as of the end of the immediately preceding fiscal quarter (as set forth in the Specified Tangible Assets Calculation for such fiscal quarter or, if the end of such fiscal quarter is June 30, 2009, $1,085 million except to the extent such decrease is attributable to (1) any Restricted Payments in the form of Specified Tangible Assets made in accordance with Section 4.07(a) hereof, (2) depreciation or amortization of such Specified Tangible Assets, (3) fluctuations in currency exchange rates or currency values or (4) other non-cash items that reduce the Book Value of such Specified Tangible Assets.

“ Reference Treasury Dealer ” means Goldman Sachs & Co., Credit Suisse Securities (USA) LLC or J.P. Morgan Securities Inc. and three additional primary Government Securities dealers in New York City (each a “ Primary Treasury Dealer ”) selected by the Company, and their successors; provided , however , that if any such firm or any such successor, as the case may be, shall cease to be a primary U.S. Government securities dealer in New York City, the Company shall substitute therefor another Primary Treasury Dealer.

“ Reference Treasury Dealer Quotations ” means, with respect to each Reference Treasury Dealer and any redemption date, the average as determined by the Trustee, of the bid and asked prices of the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such redemption date.

“ Registration Rights Agreement ” means the Exchange and Registration Rights Agreement, dated as of September 22, 2009, among the Company, the Guarantors and the other parties named on the signature pages thereof, as such agreement may be amended, modified or supplemented from time to time and, with respect to any Additional Notes, one or more registration rights agreements among the Company, the Guarantors and the other parties thereto, as such agreement(s) may be amended, modified or supplemented from time to time, relating to rights given by the Company to the purchasers of Additional Notes to register such Additional Notes under the Securities Act.

 

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“ Regulation S ” means Regulation S promulgated under the Securities Act.

“ Regulation S Global Note ” a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 903 of Regulation S.

“ Responsible Officer, ” when used with respect to the Trustee, means any officer within the Corporate Trust Administration of the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.

“ Restricted Definitive Note ” means a Definitive Note bearing the Private Placement Legend.

“ Restricted Global Note ” means a Global Note bearing the Private Placement Legend.

“ Restricted Investment ” means an Investment other than a Permitted Investment.

“ Restricted Period ” means the 40-day distribution compliance period as defined in Regulation S.

“ Restricted Subsidiary ” of a Person means any Subsidiary of the referent Person that is not an Unrestricted Subsidiary.

“ Rule 144 ” means Rule 144 promulgated under the Securities Act.

“ Rule 144A ” means Rule 144A promulgated under the Securities Act.

“ Rule 3-16 ” means Rule 3-16 of Regulation S-X promulgated under the Securities Act and the Exchange Act, as the same may be amended or modified from time to time.

“ Rule 903 ” means Rule 903 promulgated under the Securities Act.

“ Rule 904 ” means Rule 904 promulgated under the Securities Act.

“S&P” means Standard & Poor’s Ratings Group.

“ SEC ” means the Securities and Exchange Commission.

“ Secured Debtholders ” has the meaning set forth in the Collateral Agency Agreement.

“ Securities Act ” means the Securities Act of 1933, as amended.

“ Shelf Registration Statement ” means the Shelf Registration Statement as defined in the Registration Rights Agreement.

“ Significant Subsidiary ” means any Subsidiary (1) that would be a “significant subsidiary” pursuant to clause (1) or (2) of the definition thereof as set forth in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the date of this Indenture, or (2) the total consolidated revenues of which for the most recently ended four full fiscal quarters for which the Company’s internal financial statements are available at the time constituted greater than 5% of the total revenues of the Company and its Subsidiaries for such period.

 

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“ Special Interest ” means all Special Interest then owing pursuant to the Registration Rights Agreement.

“ Specified A/R ” means each account receivable that is reflected on the balance sheet of any Latin American Grantor (other than the Legacy Latin American Grantors) as of June 30, 2009, as determined in accordance with GAAP, which is payable by any Person other than the Company or any of its Subsidiaries which constituted one of the top 20 customers of the Latin American Grantors (other than the Legacy Latin American Grantors) as determined by revenue generated by such Person’s contracts during the first half of the Company’s 2009 fiscal year.

“ Specified Pledgor Guarantor” means each Subsidiary of the Company that is designated as a Specified Pledgor Guarantor in accordance with Section 4.21(a) hereof; provided , however , that any Specified Pledgor Guarantor so designated shall constitute a Specified Pledgor Guarantor only until such time as such Specified Pledgor Guarantor is redesignated by the chief financial officer of the Company as a Grantor Guarantor in a written notice to the Collateral Agent (subject to compliance with Section 4.21 hereof). For the avoidance of doubt, each Specified Pledgor Guarantor will Guarantee the Notes but will not grant a Lien on its property or assets other than a pledge of the Equity Interests of its Subsidiaries (except that a Specified Pledgor Guarantor will not pledge the Equity Interests of Subsidiaries to the extent that (x) it does not have any Subsidiaries or (y) the pledge of the Equity Interests of the relevant Subsidiary is not required pursuant to the terms of this Indenture or is released in accordance with Section 10.03(a)(7) hereof).

“ Specified PP&E ” means each asset classified as property, plant, fixtures and equipment (other than (a) leasehold improvements and (b) property, plant, fixtures and equipment under capital leases) that (1) has an individual Book Value greater than $10,000 as reflected on the balance sheet of any Latin American Grantor as of June 30, 2009, as determined in accordance with GAAP and (2) is located at a Specified Site.

“ Specified Site ” means each of the following buildings owned by the Latin American Grantors as of the date of this Indenture, together with the land on which such buildings are situate and the fixtures and improvement appurtenant thereto, which together are deemed critical to our Latin American operations: (a) the cable landing stations in Fortaleza, Rio do Janeiro and Sao Paulo, Brazil; Valparaiso, Chile; and Lurin, Perú; Balboa and Colon, Panama; and Mazatlan and Tijuana, Mexico; and (b) the telehouses in Curitiba, Rio do Janeiro and Sao Paulo, Brazil; Santiago, Chile; Lima, Perú; and Mexico City and Monterrey, Mexico.

“ Specified Tangible Assets ” of any Person as of any date means the sum of the assets of such Person (excluding any assets of any Subsidiary of such Person) consisting of (1) unrestricted cash and Cash Equivalents, (2) accounts receivable payable by any Person other than the Company or any of its Subsidiaries and (3) property, plant and equipment (other than property, plant and equipment under capital leases and fixtures constituting leasehold improvements on real property leasehold interests), in each case to the extent such assets are set forth (or that would be required to be set forth) on a balance sheet of such Person prepared in accordance with GAAP as of the end of the most recently ended fiscal quarter of such specified Person (the “ Applicable Balance Sheet Date ”); provided that (a) acquisitions (including through mergers, amalgamations or consolidations), Asset Sales and Events of Loss of the Company or any of its Restricted Subsidiaries subsequent to the Applicable Balance Sheet Date, (b) the reclassification or redesignation of any Pledgor Guarantor, Excluded Restricted Subsidiary or Unrestricted Subsidiary as a Grantor Guarantor and the reclassification or redesignation of any Grantor

 

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Guarantor as a Pledgor Guarantor, Excluded Restricted Subsidiary or Unrestricted Subsidiary and (c) any dividends, distributions, repayments of Indebtedness to the Company or any Grantor Guarantor, in each case subsequent to the Applicable Balance Sheet Date will be given pro forma effect as if they had occurred on such Applicable Balance Sheet Date.

“ Stated Maturity ” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the documentation governing such Indebtedness as of the date of this Indenture, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof; provided that in the case of any Indebtedness on which payment of interest or principal is due upon demand by the obligee thereof, the Stated Maturity of such installment of interest or principal shall be the date on which demand for payment is made.

“ STT ” means STT Communications, Ltd., a company organized under the laws of Singapore.

“ Subordinated Indebtedness ” means Indebtedness of the Company or a Guarantor that is contractually subordinated in right of payment (by the terms of any documents or instrument relating thereto) to the Notes or the Note Guarantee of such Guarantor, as applicable.

“ Subsidiary ” means, with respect to any specified Person:

(1) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or shareholders’ or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); provided , that for purposes of this Indenture Global Crossing Landing Mexicana S. de R.L. shall be deemed to be a Subsidiary of the Company for as long as such entity is treated as a Subsidiary in the consolidated books and records of the Company; and

(2) any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).

“ Threshold Amount ” means an amount equal to $200,000, except that with reference to any property, plant, fixtures or equipment of any Latin American Grantor owned or acquired after the date of this Indenture, such term means an amount equal to $25,000.

“ TIA ” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).

“ Total Assets ” of any Person as of any date means the total assets of such Person as of the end of the most recent fiscal quarter for which internal financial statements are available and determined in accordance with GAAP.

“ Treasury Management Arrangement ” means any agreement or other arrangement governing the provision of treasury or cash management services, including deposit accounts, overdraft lines or other similar arrangements, credit or debit card, funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services.

 

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“ Treasury Rate ” means, as of any redemption date, (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recent Federal Reserve Statistical Release H.15 (519) or any successor publication that is published weekly by the Board of Governors of the Federal Reserve System and that establishes yield on actively traded U.S. Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after the stated maturity, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue shall be determined, and the Treasury Rate shall be interpolated or extrapolated from such yields on a straight-line basis, rounding to the nearest month) or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price of such redemption date. The Treasury Rate shall be calculated on the third Business Day preceding the redemption date.

“ Trustee ” means Wilmington Trust FSB until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.

“ Unrestricted Definitive Note ” means a Definitive Note that does not bear and is not required to bear the Private Placement Legend.

“ Unrestricted Global Note ” means a Global Note that does not bear and is not required to bear the Private Placement Legend.

“ Unrestricted Subsidiary ” means any Subsidiary of the Company that is an Unrestricted Subsidiary as of the date of this Indenture as set forth in Section 4.20(b) or is designated as an Unrestricted Subsidiary in compliance with Section 4.20(a), but only to the extent that such Subsidiary:

(1) has no Indebtedness other than Non-Recourse Debt;

(2) except as permitted by Section 4.11 hereof, is not party to any agreement, contract, arrangement or understanding with the Company or any of its Restricted Subsidiaries unless the terms of any such agreement, contract, arrangement or understanding are not materially less favorable to the Company or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Company;

(3) is a Person with respect to which neither the Company nor any of its Restricted Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results; and

(4) has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company or any of its Restricted Subsidiaries; provided , that the pledge of Equity Interests of any Subsidiary by the holders of such Equity Interests shall be deemed to not be the indirect provision of credit support by such Subsidiary

“ U.S. Person ” means a U.S. Person as defined in Rule 902(k) promulgated under the Securities Act.

“ Voting Stock ” of any specified Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

 

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“ Weighted Average Life to Maturity ” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:

(1) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by

(2) the then outstanding principal amount of such Indebtedness.

Section 1.02 Other Definitions.

 

 

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Section 1.03 Incorporation by Reference of Trust Indenture Act.

Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture.

The following TIA terms used in this Indenture have the following meanings:

“ indenture securities ” means the Notes;

“ indenture security Holder ” means a Holder of a Note;

“ indenture to be qualified ” means this Indenture;

“ indenture trustee ” or “ institutional trustee ” means the Trustee; and

“ obligor ” on the Notes and the Note Guarantees means the Company and the Guarantors, respectively, and any successor obligor upon the Notes and the Note Guarantees, respectively.

All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA have the meanings so assigned to them.

 

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Section 1.04 Rules of Construction.

Unless the context otherwise requires:

(1) a term has the meaning assigned to it;

(2) an accounting term not otherwise defined herein has the meaning assigned to it in accordance with GAAP;

(3) “or” is not exclusive;

(4) words in the singular include the plural, and in the plural include the singular;

(5) “will” shall be interpreted to express a command;

(6) provisions apply to successive events and transactions; and

(7) references to sections of or rules under the Securities Act will be deemed to include substitute, replacement of successor sections or rules adopted by the SEC from time to time.

ARTICLE 2

THE NOTES

Section 2.01 Form and Dating.

(a) General . The Notes and the Trustee’s certificate of authentication will be substantially in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note will be dated the date of its authentication. The Notes shall be in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The terms and provisions contained in the Notes will constitute, and are hereby expressly made, a part of this Indenture and the Company, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.

(b) Global Notes . Notes issued in global form will be substantially in the form of Exhibit A hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes issued in definitive form will be substantially in the form of Exhibit A hereto (but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note will represent such of the outstanding Notes as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby will be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof.

 

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(c)  Regulation S Global Notes. Notes offered and sold in reliance on Regulation S will be issued initially in the form of the Regulation S Global Note, which will be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee as custodian for the Depositary, and registered in the name of the Depositary or the nominee of the Depositary for the accounts of designated agents holding on behalf of Euroclear or Clearstream, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Restricted Period will be terminated upon the receipt by the Trustee of:

(1) a written certificate from the Depositary, together with copies of certificates from Euroclear and Clearstream certifying that they have received certification of non-United States beneficial ownership of 100% of the aggregate principal amount of the Regulation S Global Note (except to the extent of any beneficial owners thereof who acquired an interest therein during the Restricted Period pursuant to another exemption from registration under the Securities Act and who will take delivery of a beneficial ownership interest in a 144A Global Note or an IAI Global Note bearing a Private Placement Legend, all as contemplated by Section 2.06(b) hereof); and

(2) an Officer’s Certificate from the Company.

(d)  Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream will be applicable to transfers of beneficial interests in the Regulation S Global Note that are held by Participants through Euroclear or Clearstream.

Section 2.02 Execution and Authentication.

At least one Officer shall execute the Notes on behalf of the Company by manual or facsimile signature.

If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note will nevertheless be valid.

A Note shall not be entitled to any benefit under this Indenture or be valid or obligatory for any purpose until authenticated substantially in the form of Exhibit A attached hereto by the manual signature of the Trustee. The signature shall be conclusive evidence that the Note has been authenticated and delivered under this Indenture.

The Trustee will, upon receipt of a written order of the Company signed by one Officer (an “ Authentication Order ”), authenticate Notes for original issue under this Indenture, including any Additional Notes issued from time to time. The aggregate principal amount of Notes outstanding at any time may not exceed the aggregate principal amount of Notes authorized for issuance by the Company pursuant to one or more Authentication Orders, except as provided in Section 2.07 hereof.

The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders, the Company or an Affiliate of the Company.

 

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Section 2.03 Registrar and Paying Agent.

The Company will maintain an office or agency where Notes may be presented for registration of transfer or for exchange (“ Registrar ”) and an office or agency where Notes may be presented for payment (“ Paying Agent ”). The Registrar will keep a register of the Notes and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company will notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.

The Company initially appoints The Depository Trust Company (“ DTC ”) to act as Depositary with respect to the Global Notes.

The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to the Global Notes.

Section 2.04 Paying Agent to Hold Money in Trust.

The Company will require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, or interest on the Notes, and will notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary) will have no further liability for the money. If the Company or a Subsidiary acts as Paying Agent, it will segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee will serve as Paying Agent for the Notes.

Section 2.05 Holder Lists.

The Trustee will preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Company will furnish to the Trustee at least seven Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes and the Company shall otherwise comply with TIA § 312(a).

Section 2.06 Transfer and Exchange.

(a) Transfer and Exchange of Global Notes . A Global Note may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged by the Company for Definitive Notes if:

(1) the Company delivers to the Trustee notice from the Depositary that it is unwilling or unable to continue to act as Depositary or that it is no longer a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Company within 120 days after the date of such notice from the Depositary;

 

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(2) the Company in its sole discretion determines that the Global Notes (in whole but not in part) should be exchanged for Definitive Notes and delivers a written notice to such effect to the Trustee; or

(3) there has occurred and is continuing a Default or Event of Default with respect to the Notes.

Upon the occurrence of either of the preceding events in (1) or (2) above, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a), however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (f) hereof.

(b)  Transfer and Exchange of Beneficial Interests in the Global Notes . The transfer and exchange of beneficial interests in the Global Notes will be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes will be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also will require compliance with either subparagraph (1) or (2) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:

(1)  Transfer of Beneficial Interests in the Same Global Note . Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend; provided, however , that prior to the expiration of the Restricted Period, transfers of beneficial interests in the Regulation S Global Note may not be made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser). Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(1) .

(2)  All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(1) above, the transferor of such beneficial interest must deliver to the Registrar either:

(A) both:

(i) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged; and

(ii) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase; or

 

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(B) both:

(i) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged; and

(ii) instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (1) above;

Upon consummation of an Exchange Offer by the Company in accordance with Section 2.06(f) hereof, the requirements of this Section 2.06(b)(2) shall be deemed to have been satisfied upon receipt by the Registrar of the instructions contained in the Letter of Transmittal delivered by the Holder of such beneficial interests in the Restricted Global Notes. Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(h) hereof.

(3)  Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 2.06(b)(2) above and the Registrar receives the following:

(A) if the transferee will take delivery in the form of a beneficial interest in the 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;

(B) if the transferee will take delivery in the form of a beneficial interest in the Regulation S Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and

(C) if the transferee will take delivery in the form of a beneficial interest in the IAI Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable.

(4) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 2.06(b)(2) above and:

(A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights Agreement and the holder of the beneficial interest to be transferred, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;

 

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(B) such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement;

(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Registration Statement in accordance with the Registration Rights Agreement; or

(D) the Registrar receives the following:

(i) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or

(ii) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

and, in each such case set forth in this subparagraph (D), if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

If any such transfer is effected pursuant to subparagraph (B) or (D) above at a time when an Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to subparagraph (B) or (D) above.

Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note.

(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.

(1) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt by the Registrar of the following documentation:

(A) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;

(B) if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;

 

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(C) if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;

(D) if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;

(E) if such beneficial interest is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (b) through (d) above, a certificate to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable;

(F) if such beneficial interest is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or

(G) if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,

the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Company shall execute and the Trustee shall authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(1) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.

(2) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes . A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if:

(A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights Agreement and the holder of such beneficial interest, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;

(B) such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement;

 

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(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Registration Statement in accordance with the Registration Rights Agreement; or

(D) the Registrar receives the following:

(i) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or

(ii) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

and, in each such case set forth in this subparagraph (D), if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

(3) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction of the conditions set forth in Section 2.06(b)(2) hereof, the Trustee will cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Company will execute and the Trustee will authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(3) will be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest requests through instructions to the Registrar from or through the Depositary and the Participant or Indirect Participant. The Trustee will deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(3) will not bear the Private Placement Legend.

(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.

(1) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation:

(A) if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;

 

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(B) if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;

(C) if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;

(D) if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;

(E) if such Restricted Definitive Note is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (b) through (d) above, a certificate to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable;

(F) if such Restricted Definitive Note is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or

(G) if such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,

the Trustee will cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global Note, in the case of clause (C) above, the Regulation S Global Note, and in all other cases, the IAI Global Note.

(2) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes . A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if:

(A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;

(B) such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement;

(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Registration Statement in accordance with the Registration Rights Agreement; or

 

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(D) the Registrar receives the following:

(i) if the Holder of such Definitive Notes proposes to exchange such Notes for a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or

(ii) if the Holder of such Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

and, in each such case set forth in this subparagraph (D), if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.06(d)(2), the Trustee will cancel the Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.

(3) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee will cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes.

If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to subparagraphs (2)(B), (2)(D) or (3) above at a time when an Unrestricted Global Note has not yet been issued, the Company will issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee will authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so transferred.

(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the Registrar will register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder must present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder must provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e).

(1)  Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to and registered in the name of Persons who take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:

(A) if the transfer will be made pursuant to Rule 144A, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;

 

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(B) if the transfer will be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and

(C) if the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable.

(2) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if:

(A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;

(B) any such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement;

(C) any such transfer is effected by a Broker-Dealer pursuant to the Exchange Registration Statement in accordance with the Registration Rights Agreement; or

(D) the Registrar receives the following:

(i) if the Holder of such Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or

(ii) if the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

and, in each such case set forth in this subparagraph (D) an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

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(3) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.

(f) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance with the Registration Rights Agreement, the Company will issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee will authenticate:

(1) one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of the beneficial interests in the Restricted Global Notes accepted for exchange in the Exchange Offer by Persons that certify in the applicable Letters of Transmittal that (A) they are not Broker-Dealers, (B) they are not participating in a distribution of the Exchange Notes and (C) they are not affiliates (as defined in Rule 144) of the Company; and

(2) Unrestricted Definitive Notes in an aggregate principal amount equal to the principal amount of the Restricted Definitive Notes accepted for exchange in the Exchange Offer by Persons that certify in the applicable Letters of Transmittal that (A) they are not Broker-Dealers, (B) they are not participating in a distribution of the Exchange Notes and (C) they are not affiliates (as defined in Rule 144) of the Company.

Concurrently with the issuance of such Notes, the Trustee will cause the aggregate principal amount of the applicable Restricted Global Notes to be reduced accordingly, and the Company will execute and the Trustee will authenticate and deliver to the Persons designated by the Holders of Definitive Notes so accepted Unrestricted Definitive Notes in the appropriate principal amount.

(g) Legends. The following legends will appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture.

(1) Private Placement Legend .

(A) Except as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:

“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE “ SECURITIES ACT ”) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (2) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (5) TO AN INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501 OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.”

 

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(B) Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraphs (b)(4), (c)(2), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) will not bear the Private Placement Legend.

(2) Global Note Legend . Each Global Note will bear a legend in substantially the following form:

“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.

UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“ DTC ”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”

(3)  Original Issue Discount Legend . Each Note will bear a legend in substantially the following form:

“THIS SECURITY HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT (“ OID ”) AS DEFINED IN SECTION 1273 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. FOR INFORMATION REGARDING THE ISSUE DATE, THE ISSUE PRICE, THE YIELD TO MATURITY AND THE AMOUNT OF OID PER $1.00 OF PRINCIPAL AMOUNT OF THIS SECURITY PLEASE CONTACT THE COMPANY AT GLOBAL CROSSING LIMITED, 200 PARK AVENUE, SUITE 300, FLORHAM PARK, NJ 07932, ATTENTION: CHIEF FINANCIAL OFFICER.”

 

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(h)  Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note will be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note will be reduced accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note will be increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.

(i) General Provisions Relating to Transfers and Exchanges.

(1) To permit registrations of transfers and exchanges, the Company will execute and the Trustee will authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 hereof.

(2) No service charge will be made to a Holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.15, 4.27 and 9.05 hereof).

(3) All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes will be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.

(4) Neither the Registrar nor the Company will be required:

(A) to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 hereof and ending at the close of business on the day of selection;

(B) to register the transfer of or to exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part; or

(C) to register the transfer of or to exchange a Note between a record date and the next succeeding interest payment date.

(5) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary.

 

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(6) The Trustee will authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.02 hereof.

(7) All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile.

Section 2.07 Replacement Notes.

If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Company will issue and the Trustee, upon receipt of an Authentication Order, will authenticate a replacement Note if the Trustee’s requirements are met. If required by the Trustee or the Company, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of (i) the Trustee to protect the Trustee and (ii) the Company to protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Company may charge for its expenses in replacing a Note.

Every replacement Note is an additional obligation of the Company and will be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.

Section 2.08 Outstanding Notes.

The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the Note; however, Notes held by the Company or a Subsidiary of the Company shall not be deemed to be outstanding for purposes of Section 3.07(a) hereof.

If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser.

If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.

If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient to pay Notes payable on that date, then on and after that date such Notes will be deemed to be no longer outstanding and will cease to accrue interest.

Section 2.09 Treasury Notes.

In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company or any Guarantor, or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any Guarantor, will be considered as though not outstanding, except that for the purposes of determining whether the Trustee will be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee knows are so owned will be so disregarded.

 

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Section 2.10 Temporary Notes.

Until certificates representing Notes are ready for delivery, the Company may prepare and the Trustee, upon receipt of an Authentication Order, will authenticate temporary Notes. Temporary Notes will be substantially in the form of certificated Notes but may have variations that the Company considers appropriate for temporary Notes and as may be reasonably acceptable to the Trustee. Without unreasonable delay, the Company will prepare and the Trustee will authenticate definitive Notes in exchange for temporary Notes.

Holders of temporary Notes will be entitled to all of the benefits of this Indenture.

Section 2.11 Cancellation.

The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent will forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and will destroy canceled Notes (subject to the record retention requirement of the Exchange Act and the Trustee). Certification of the cancellation of all canceled Notes will be delivered to the Company upon the request from the Company. The Company may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.

Section 2.12 Defaulted Interest.

If the Company defaults in a payment of interest on the Notes, it will pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01 hereof. The Company will notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Company will fix or cause to be fixed each such special record date and payment date; provided that no such special record date may be less than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) will mail or cause to be mailed to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid.

ARTICLE 3

REDEMPTION AND PREPAYMENT

Section 3.01 Notices to Trustee.

If the Company elects to redeem Notes pursuant to the optional redemption provisions of Section 3.07 hereof, it must furnish to the Trustee, at least 30 days but not more than 60 days before a redemption date, an Officer’s Certificate setting forth:

(1) the clause of this Indenture pursuant to which the redemption shall occur;

(2) the redemption date;

(3) the principal amount of Notes to be redeemed; and

(4) the redemption price.

 

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Section 3.02 Selection of Notes to Be Redeemed or Purchased.

If less than all of the Notes are to be redeemed or purchased in an offer to purchase at any time, the Trustee will select Notes for redemption or purchase on a pro rata basis (or, in the case of Notes issued in global form as set forth under Section 2.01(b) hereof, based on a method that most nearly approximates a pro rata selection as the Trustee deems fair and appropriate) unless otherwise required by law or applicable stock exchange or depositary requirements; provided that the minimum denominations are preserved.

In the event of partial redemption or purchase by lot, the particular Notes to be redeemed or purchased will be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the redemption or purchase date by the Trustee from the outstanding Notes not previously called for redemption or purchase.

The Trustee shall promptly notify the Company in writing of the Notes selected for redemption or purchase and, in the case of any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased. Notes and portions of Notes selected shall be in minimum amounts of $2,000 or integral multiples of $1,000 in excess thereof; no Notes of $2,000 or less can be redeemed in part, except that if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held by such Holder, even if not equal to $2,000 or an integral multiple of $1,000 in excess thereof, shall be redeemed or purchased. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption or purchase also apply to portions of Notes called for redemption or purchase.

Section 3.03 Notice of Redemption.

Subject to the provisions of Section 3.09 hereof, at least 30 days but not more than 60 days before a redemption date, the Company will mail or cause to be mailed, by first class mail, a notice of redemption to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture pursuant to Articles 8 or 12 hereof.

The notice will identify the Notes to be redeemed and will state:

(1) the redemption date;

(2) the redemption price;

(3) if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the redemption date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be issued upon cancellation of the original Note;

(4) the name and address of the Paying Agent;

(5) that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;

(6) that, unless the Company defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the redemption date;

 

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(7) the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed; and

(8) that no representation is made as to the correctness or accuracy of the CUSIP/CINS number, if any, listed in such notice or printed on the Notes.

At the Company’s request, the Trustee will give the notice of redemption in the Company’s name and at its expense; provided , however , that the Company has delivered to the Trustee, at least 45 days prior to the redemption date, an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph.

Section 3.04 Effect of Notice of Redemption.

Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price. A notice of redemption may not be conditional.

Section 3.05 Deposit of Redemption or Purchase Price.

One Business Day prior to the redemption or purchase date, the Company will deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of and accrued interest on all Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent will promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption or purchase price of, and accrued interest on, all Notes to be redeemed or purchased.

If the Company complies with the provisions of the preceding paragraph, on and after the redemption or purchase date, interest will cease to accrue on the Notes or the portions of Notes called for redemption or purchase. If a Note is redeemed or purchased on or after an interest record date but on or prior to the related interest payment date, then any accrued and unpaid interest shall be paid to the Person in whose name such Note was registered at the close of business on such record date. If any Note called for redemption or purchase is not so paid upon surrender for redemption or purchase because of the failure of the Company to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or purchase date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.

Section 3.06 Notes Redeemed or Purchased in Part.

Upon surrender of a Note that is redeemed or purchased in part, the Company will issue and, upon receipt of an Authentication Order, the Trustee will authenticate for the Holder at the expense of the Company a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered.

Section 3.07 Optional Redemption.

(a) At any time prior to September 15, 2012, the Company may on any one or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under this Indenture at a redemption price of 112% of the principal amount thereof, plus accrued and unpaid interest and Special Interest, if any, to the redemption date, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date, with the net cash proceeds of one or more Equity Offerings; provided that:

(1) at least 65% of the aggregate principal amount of Notes originally issued under this Indenture (excluding Notes held by the Company and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and

 

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(2) the redemption occurs within 90 days of the date of the closing of such Equity Offering.

(b) On or after September 15, 2012, the Company may redeem all or a part of the Notes upon not less than 30 nor more than 60 days’ notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest and Special Interest, if any, on the Notes redeemed, to the applicable redemption date, if redeemed during the twelve-month period beginning on September 15 of the years indicated below, subject to the rights of Holders on the relevant record date to receive interest on the relevant interest payment date:

 

(c) At any time prior to September 15, 2012, the Company may, on any one or more occasions, redeem all or a part of the Notes, upon not less than 30 nor more than 60 days prior notice, at a redemption price equal to the sum of the present values of (1) the redemption price of the Notes to be redeemed at September 15, 2012 (set forth in Section 3.07(b) hereof), and (2) the remaining scheduled payments of interest on such Notes from the redemption date through September 15, 2012, excluding accrued and unpaid interest to the redemption date, in each case discounted to the redemption date, computed on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) using a discount rate equal to the Treasury Rate plus 50 basis points, plus accrued and unpaid interest and Special Interest, if any, on such Notes to the redemption date. The notice of redemption with respect to any redemption pursuant to this Section 3.07(c) need not set forth the redemption price, but shall set forth the manner of calculation thereof. The Company will notify the Trustee of the redemption price with respect to any redemption pursuant to this Section 3.07(c) promptly after calculation thereof and the Trustee shall not be responsible for such calculation.

(d) If, as a result of any amendment to, or change in, the laws (or any rules or regulations thereunder) or treaties applicable to the jurisdiction in which the Company is then incorporated or organized (so long as such jurisdiction is a jurisdiction in which the Company may reincorporate or reorganize pursuant to Section 5.01 hereof) or any political subdivision or taxing authority thereof or therein affecting taxation, or any amendment to or change in an official interpretation or application of such laws, rules, regulations or treaties, which amendment to or change of such laws, rules, regulations or treaties becomes effective on or after the date of this Indenture, the Company would be obligated, after taking all reasonable measures to avoid this requirement, to pay Additional Amounts ( provided that the Company shall not be required to take any measures that, in its reasonable determination, would result in the imposition on it of any material legal or regulatory burden or the incurrence by it of any material costs, or would otherwise result in any material adverse consequences), then, at the Company’s option, all, but not less than all, of the Notes may be redeemed at any time on giving not less than 30 nor more than 60 days’ notice, at a redemption price equal to 100% of the outstanding principal amount, plus accrued and unpaid interest, any Special Interest and any Additional Amounts due thereon up to but not including the date of redemption; provided , however , that

 

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(1) no notice of redemption for tax reasons may be given earlier than 90 days prior to the earliest date on which the Company would be obligated to pay these Additional Amounts if a payment on the Notes or the relevant Note Guarantee were then due, and

(2) at the time such notice of redemption is given such obligation to pay such Additional Amounts remains in effect.

Such notice, once delivered by the Company to the Trustee, will be irrevocable.

Prior to the publication of any notice of redemption pursuant to this clause (d), the Company will deliver to the Trustee:

(1) an Officer’s Certificate stating that the Company is entitled to effect the redemption described in this clause (d) and setting forth a statement of facts showing that the conditions precedent to the Company’s right to redeem have occurred; and

(2) an Opinion of Counsel in the jurisdiction in which the Company is then incorporated or organized (which may be the Company’s counsel) of recognized standing to the effect that the Company has or will become obligated to pay such Additional Amounts as a result of such amendment or change.

(e) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.

Section 3.08 Mandatory Redemption.

The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes.

Section 3.09 Offer to Purchase by Application of Excess Proceeds or Excess Event of Loss Proceeds.

(a) In the event that, pursuant to Section 4.10 hereof, the Company is required to commence an offer to all Holders to purchase Notes (an “ Asset Sale Offer ”), it will follow the procedures specified below.

The Asset Sale Offer shall be made to all Holders and all holders of Pari Passu Obligations containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “ Offer Period ”). No later than three Business Days after the termination of the Offer Period (the “ Purchase Date ”), the Company will apply all Excess Proceeds (the “ Offer Amount ”) to the purchase of Notes and such other Pari Passu Obligations (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made.

If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Special Interest, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer.

 

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Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:

(1) that the Asset Sale Offer is being made pursuant to this Section 3.09(a) and Section 4.10 hereof and the length of time the Asset Sale Offer will remain open;

(2) the Offer Amount, the purchase price and the Purchase Date;

(3) that any Note not tendered or accepted for payment will continue to accrue interest;

(4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase Date;

(5) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $1,000 only;

(6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;

(7) that Holders will be entitled to withdraw their election if the Company or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;

(8) that, if the aggregate principal amount of Notes and other Pari Passu Obligations surrendered by holders thereof exceeds the Offer Amount, the Company will select the Notes and other Pari Passu Obligations to be purchased on a pro rata basis based on the principal amount of Notes and such other Pari Passu Obligations surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof, will be purchased); and

(9) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).

On or before the Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 3.09(a) . The Paying Agent will promptly (but in any case not later than three Business Days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an

 

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Authentication Order, will authenticate and mail or deliver (or cause to be transferred by book-entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date.

(b) In the event that, pursuant to Section 4.27 hereof, the Company is required to commence an offer to all Holders to purchase Notes (an “ Event of Loss Offer ”), it will follow the procedures specified below.

The Event of Loss Offer shall be made to all Holders and all holders of Pari Passu Obligations containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of events of loss. The Event of Loss Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “ Event of Loss Offer Period ”). No later than three Business Days after the termination of the Event of Loss Offer Period (the “ Event of Loss Purchase Date ”), the Compan