Exhibit 4.1
EXECUTION COPY
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LEVEL 3 COMMUNICATIONS, INC.
AND
THE BANK OF NEW YORK
as Trustee
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AMENDMENT NO. 1 TO THE
THIRD SUPPLEMENTAL INDENTURE
DATED AS OF JUNE 18, 2003
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Amendment to Supplement to Indenture dated as of September 20, 1999
(Subordinated Debt Securities)
9% Junior Convertible Subordinated Notes due 2012
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AMENDMENT NO. 1 TO THE THIRD SUPPLEMENTAL INDENTURE
THIS AMENDMENT NO. 1 TO THE THIRD SUPPLEMENTAL INDENTURE (this
"Amendment"), dated as of June 18, 2003, by and between LEVEL 3 COMMUNICATIONS,
INC., a Delaware corporation (hereinafter called the "Company"), and THE BANK OF
NEW YORK as successor to IBJ WHITEHALL BANK & TRUST COMPANY, a New York banking
corporation (hereinafter called the "Trustee"), having a Corporate Trust Office
at 101 Barclay Street, Floor 8 West, New York, New York 10286, as Trustee under
the Indenture (as hereinafter defined).
RECITALS
WHEREAS, the Company and the Trustee have as of September 20, 1999 entered
into an Indenture (as supplemented, the "Indenture"), providing for the issuance
by the Company from time to time of its subordinated debt securities;
WHEREAS, the Company and the Trustee have as of July 8, 2002 entered into a
Third Supplemental Indenture (the "Supplemental Indenture"), providing for the
issuance by the Company of up to $500,000,000 aggregate principal amount of its
9% Junior Convertible Subordinated Notes due 2012 (the "Notes");
WHEREAS, Section 902 of the Indenture provides, among other things, that
the Company, with the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, when
authorized by or pursuant to a Board Resolution, and the Trustee may enter into
an indenture or supplemental indentures for the purpose of adding any provision
to or changing in any manner or eliminating any of the provisions of the
Indenture, including amending the conversion provisions, provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby, impair the right of Holders to convert
their Securities upon the terms established pursuant to or in accordance with
the provisions of the Indenture or modify Article Seventeen of the Indenture in
a manner adverse to the Holders;
WHEREAS, the Company has received the written consents of the Holders of a
majority of the aggregate principal amount of the Notes to enter into this
Amendment;
WHEREAS, the Company desires to enter into this Amendment, and has duly
authorized the execution and delivery of this Amendment to modify the
Supplemental Indenture;
WHEREAS, concurrent with the execution hereof, the Company has delivered an
Officers' Certificate and has caused its counsel to deliver to the Trustee an
Opinion of Counsel or a reliance letter upon an opinion of counsel; and
WHEREAS, all conditions and requirements of the Indenture necessary to make
this Amendment a valid, binding and legal instrument in accordance with its
terms have been performed and fulfilled by the parties hereto and the execution
and delivery thereof have been in all respects duly authorized by the parties
hereto.
NOW, THEREFORE:
For and in consideration of the mutual premises and agreements herein
contained, the Company and the Trustee covenant and agree, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE One
AMENDMENTS TO THE SUPPLEMENTAL INDENTURE
SECTION 1.1. DEFINITIONS.
(a) Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned thereto in the Indenture or the Supplemental
Indenture, as applicable.
(b) The following definitions are hereby added to Section 1.7(c) of the
Supplemental Indenture in appropriate alphabetical position:
"Special Conversion Period" shall mean the period from 5:00 p.m,
Eastern Standard Time, on the date hereof to 9:15 a.m., Eastern Standard
Time, on the next Business Day after the date hereof.
"Special Conversion Price" shall equal $2.83849.
SECTION 1.2. FORM OF SECURITIES.
(a) The Form of Reverse of Notes is hereby amended by adding the following
immediately prior to the heading "Mandatory Conversion":
"During the Special Conversion Period, the Holder of this Note is entitled,
at his or her option, to convert each $1,000 principal amount of Notes into such
number of fully paid and nonassessable shares of Common Stock of the Company as
shall be determined by dividing $1,000 by the Special Conversion Price by
surrender of (1) this Note, duly endorsed or assigned to the Company or in
blank, and (2) the Special Conversion Notice attached hereon duly executed, to
the Company at the Corporate Trust Office of the Trustee, or at such other
office or agency of the Company as the Company may designate. No cash payment or
adjustment is to be made on conversion for interest accrued hereon from the
Interest Payment Date next preceding the day of conversion, or for dividends on
the Common Stock of the Company issued on conversion hereof. The Company shall
thereafter deliver to the Holder the fixed number of shares of Common Stock of
the Company into which this Note is convertible and such delivery will be deemed
to satisfy the Company's obligation to pay the principal amount of this Note. No
fractions of shares or scrip representing fractions of shares will be issued
upon conversion, but instead of any fractional interest the Company shall round
upward to the next whole number of shares of Common Stock issuable upon
conversion."
(b) The Form of Reverse of Notes is hereby amended by inserting Exhibit A
attached hereto after the "Option of Holder to Elect Purchase Certificate."
SECTION 1.3. CONVERSION RATE. Section 2.2 of the Supplemental Indenture is
hereby amended by inserting "(a)" after the heading and by adding the following
as a new paragraph at the end of Section 2.2:
"(b) During the Special Conversion Period, the rate at which shares of
Common Stock of the Company shall be delivered upon conversion (the "Special
Conversion Rate") of each $1,000 principal amount of Notes shall be determined
by dividing $1,000 by the Special Conversion Price."
ARTICLE Two
MISCELLANEOUS
SECTION 2.1. APPLICATION OF THIS AMENDMENT. Each and every term and
condition contained in this Amendment that modifies, amends or supplements the
terms and conditions of the Indenture shall apply only to the Notes created by
the Supplemental Indenture and not to any future series of notes established
under the Indenture.
SECTION 2.2. BENEFITS OF THIS AMENDMENT. Nothing contained in this
Amendment shall or shall be construed to confer upon any person other than a
Holder of the Notes, the Company and the Trustee any right or interest to avail
itself or himself, as the case may be, of any benefit under any provision of the
Indenture, the Supplemental Indenture or this Amendment.
SECTION 2.3. EFFECTIVE DATE. This Amendment shall be effective as of the
date first above written and upon the execution and delivery hereof by each of
the parties hereto.
SECTION 2.4. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 2.5. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, including via facsimile, each of which so executed shall be deemed
to be an original, but all such counterparts shall together constitute but one
and the same instrument.
[Remainder of Page Intentionally Left Blank]
[Signature Page to Amendment]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective officers hereunto duly authorized, all as of
the day and year first above written.
LEVEL 3 COMMUNICATIONS, INC.
By: /s/ Thomas C. Stortz
Name: Thomas C. Stortz
Title: Group Vice President
THE BANK OF NEW YORK, as Trustee
By: /s/ Van K. Brown
Name: Van K. Brown
Title: Vice President
EXHIBIT A
SPECIAL CONVERSION NOTICE
The undersigned Holder of this Note hereby irrevocably exercises the option
to convert this Note, or any portion of the principal amount hereof (which is
$1,000 or an integral multiple of $1,000 in excess thereof, PROVIDED that the
unconverted portion of such principal amount is $1,000 or any integral multiple
of $1,000 in excess thereof) below designated, into shares of Common Stock of
the Company in accordance with the terms of the Indenture referred to in this
Note, and directs that such shares and any Notes representing any unconverted
principal amount hereof, be delivered to and be registered in the name of the
undersigned. The undersigned acknowledges and agrees that such shares of Common
Stock shall be issued on or before June 27, 2003. Concurrently with the delivery
of this Special Conversion Notice, a Certificate of Beneficial Owner in the form
attached as Schedule I hereto executed by the beneficial owner of this Note is
being delivered to the Company.
Dated: ____________
Signature(s):
Name: ____________________________
Address: ____________________________
____________________________
Name: ____________________________
Address: ____________________________
____________________________
Signature Guaranteed:
__________________________________
Participant in a Recognized Signature
Guarantee Medallion Program
By: ______________________________
Authorized Signatory
If only a portion of this Note is to be converted, please indicate:
1. Principal amount to be converted: $
2. Principal amount and denomination of Notes representing unconverted
principal amount to be issued: $
($1,000 or any integral multiple of $1,000 in excess thereof, provided that
the unconverted portion of such principal amount is $1,000 or any integral
multiple of $1,000 in excess thereof)
Schedule I
CERTIFICATE OF BENFICIAL OWNER
The undersigned beneficial owner (the "Owner") of Notes issued under the
Indenture, dated as of September 20, 1999, as supplemented by the First
Supplemental Indenture, dated as of September 20, 1999, the Second Supplemental
Indenture, dated as of February 29, 2000, the Third Supplemental Indenture,
dated as of July 8, 2002, and Amendment No. 1 to the Third Supplemental
Indenture (the "Amendment"), dated as of June 18, 2003, between Level 3
Communications, Inc. (the "Company"), and The Bank of New York, as Trustee (as
supplemented and amended, the "Indenture") has on the date hereof exercised its
option to convert its Notes or a portion of the principal amount thereof into
shares of Common Stock of the Company in accordance with the terms of the
Indenture pursuant to the Special Conversion Notice, dated the date hereof,
delivered to the Company by the undersigned Owner or by its nominee on behalf of
the undersigned Owner.
In connection with the above referenced conversion of Notes, the
undersigned Owner hereby represents and warrants to the Company as follows:
(a) Such Owner taken together with the other Owners of Notes do not
constitute a "group" within the meaning of Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). Such Owner is not and,
after giving effect to the conversion of its Note or a portion of the principal
amount thereof, will not be an Affiliate of the Company. Such Owner agrees that
it shall not take any actions such that the Owner of the Notes may be deemed to
be a "group" under Section 13(d)(3) of the Exchange Act. Such Owner together
with all of its Affiliates will beneficially own (as defined in Rules 13d-3 and
13d-5 under the Exchange Act) less than twenty percent (20%)1 of the Company's
outstanding Common Stock.
(b) Such Owner, or its "ultimate parent entity" (as defined by 16 C.F.R.
SEC801.1(a)(3)), if any, is a different "acquiring person" (as defined by 16
C.F.R. SEC801.2(a)) from all other Holders and Owners and has a different
"ultimate parent entity" (as defined by 16 C.F.R. SEC801.1(a)(3)) than all other
Holders and Owners.
(c) Such Owner, or its "ultimate parent entity", if any, is an
"institutional investor" (as defined by 16 C.F.R. SEC802.64(a)) and any entity
controlled by such Owner, or its "ultimate parent entity", if any, that holds
voting securities of the Company is an "institutional investor".
(d) Such Owner, or its "ultimate parent entity", if any, is acquiring the
Common Stock issuable on conversion of its Note or a portion of the principal
amount thereof (i) for its own account, (ii) in the ordinary course of business
and (iii) "solely for the purpose of investment" (as defined by 16 C.F.R.
SEC801.1(i)(1)), and as a result of such acquisition, such Owner, or its
"ultimate parent entity", if any, including the holdings of its controlled
subsidiaries, will hold fifteen percent (15%) or less of the outstanding voting
securities of the Company.
Capitalized terms used herein and not otherwise defined shall have the
meaning ascribed to them in the Amendment.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has caused this Certificate of
Beneficial Owner to be duly executed by its respective officers hereunto duly
authorized, as of the __ day of the June, 2003.
By:
Name:
Title
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1 In the case of National Indemnity Co., the threshold shall be 15%.