First Supplemental Indenture



 Exhibit 4.5 

  

  
  
  
  
  
 BROADWING CORPORATION 
  
  
  
 3.125% CONVERTIBLE SENIOR DEBENTURES DUE 2026 
  
  
  

  
  
 FIRST
SUPPLEMENTAL INDENTURE 
 Dated as of January 3, 2007 
  
  
  

  
  
 The Bank of New York Trust Company, National Association, 
 as Trustee 
  
  
  
  
  
  









 FIRST SUPPLEMENTAL INDENTURE 
 THIS FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of January 3, 2007, by and among Broadwing Corporation,
a Delaware corporation (the “Company”), the guarantors party hereto (the “Guarantors”), Level 3 Communications, Inc., a Delaware corporation (“Parent Guarantor”), and The Bank of New York Trust
Company, National Association (as successor in interest to J.P. Morgan Trust Company, National Association), as Trustee (the “Trustee”). 
 WHEREAS, the Company, the Guarantors and the Trustee executed an indenture, dated as of May 16, 2006 (the “Indenture”), relating to the Company’s 3.125% Convertible Senior Debentures due
2026 (the “Debentures”); and 
 WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of October 16, 2006, as
amended by an Amendment, dated as of November 21, 2006 (the “Merger Agreement”), among the Company, Parent Guarantor, Level 3 Services, Inc., a Delaware corporation (which was formerly Level 3 Services, LLC, a Delaware limited
liability company) (“Merger Sub”) and Level 3 Colorado, Inc., a Delaware corporation (“Sister Subsidiary”), Merger Sub will, concurrently with the effectiveness of this Supplemental Indenture, merge with and into
the Company, with the Company continuing as the surviving corporation (the “Merger”); and 
 WHEREAS, Section 5.01 of
the Indenture permits the Company to merge with another person so long as certain conditions have been met; and 
 WHEREAS, as a result of
the Merger, the Company will be a wholly owned subsidiary of Parent Guarantor and, at the effective time of the Merger, each issued and outstanding share of Common Stock will be converted into: (i) 1.3411 shares of common stock, par value $0.01
per share, of Parent Guarantor (“Parent Guarantor Common Stock”) and (ii) $8.18 in cash (together, the “Merger Consideration”) and, therefore, as a result, pursuant to Section 13.09 of the Indenture, the
Debentures will be convertible into the Merger Consideration; and 
 WHEREAS, the Company, the Guarantors and Parent Guarantor desire to
execute and deliver this Supplemental Indenture as required by Sections 5.01 and 13.09 of the Indenture to provide, among other things, for the delivery of the Merger Consideration upon conversion of the Debentures; and 
 WHEREAS, Parent Guarantor desires to irrevocably and unconditionally guarantee the full and punctual payment of the principal of and interest on the
Debentures when due, whether at maturity, upon redemption or acceleration or otherwise, and all other monetary obligations of the Company under the Indenture and the Debentures (such guarantee the “Parent Guarantee”); and

 WHEREAS, Section 9.01 of the Indenture permits the Company, with the consent of the Trustee, to amend or supplement the Indenture,
without the consent of any Holder, to make any change that would provide any additional rights or benefits to the holders of the Debentures or that does not adversely affect the legal rights of any Holder thereunder; and 
  







 WHEREAS, the Company, the Guarantors and Parent Guarantor have requested that the Trustee execute and
deliver this Supplemental Indenture, and all things necessary to make this Supplemental Indenture a valid instrument in accordance with its terms and to make the Parent Guarantee provided for herein the valid obligation of the Parent Guarantor have
been done, and the execution and delivery of this Supplemental Indenture have been duly authorized in all respects; and 
 NOW, THEREFORE,
in consideration of the premises and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Company, the Guarantors, Parent Guarantor and the Trustee for the benefit of each other and for the
equal and ratable benefit of the Holders of the Debentures agree as follows: 
 Article I. 
 CONVERSION OF DEBENTURES 
 Section 1.1.
Conversion of Debentures into Merger Consideration; Issuance of Parent Guarantor Common Stock. 
 As of the date hereof: 
 (a) pursuant to Section 13.09 of the Indenture, the Holder of a Debenture may convert such Debenture into the Merger Consideration; and 

(b) pursuant to Section 13.09 of the Indenture, upon conversion of any Debentures by a Holder, Parent Guarantor will cause to be issued to such
Holder shares of Parent Guarantor Common Stock and cash in an amount equal to the number of shares of Parent Guarantor Common Stock and cash that such Holder would have received as Merger Consideration had such Holder converted such Debentures
immediately prior to the Merger, in accordance with the terms and conditions of the Indenture and the Debentures. The adjustments provided for in Section 13.05 of the Indenture shall apply as nearly equivalent as may be practical to Parent
Guarantor and the Parent Guarantor Common Stock as those that apply immediately prior to the Merger to the Company and the Common Stock, respectively. 
 Article II. 
 PARENT GUARANTEE 
 Section 2.1. Parent Guarantee. 
 Parent Guarantor irrevocably and unconditionally guarantees to each Holder
of Debentures, and to the Trustee and its successors and assigns, the full and punctual payment of the principal of and interest on the Debentures, when and as the same shall become due and payable, whether at maturity or upon redemption or
acceleration or otherwise, and all other monetary obligations of the Company under the Indenture and the Debentures, including obligations to the Trustee, in each case according to the terms of the Indenture and the 

  

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Debentures. Parent Guarantor agrees that in the case of default by the Company in the payment of any such principal, interest or other obligations, Parent
Guarantor shall duly and punctually pay the same. Parent Guarantor hereby agrees that its obligations hereunder shall be absolute and unconditional irrespective of any extension of the time for payment of the Debentures, any modification of the
Debentures, any invalidity, irregularity or unenforceability of the Debentures or the Indenture, any failure to enforce the same or any waiver, modification, consent or indulgence granted to the Company with respect thereto by any Holder of
Debentures or the Trustee, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. Parent Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in
the event of a merger or bankruptcy of the Company, any right to require a demand or proceeding first against the Company, protest or notice with respect to the Debentures or the indebtedness evidenced thereby and all demands whatsoever, and
covenants that this Parent Guarantee will not be discharged as to any Debenture except by payment in full of the principal of, interest and other amounts payable with respect to such Debenture pursuant to such Debenture or the Indenture. 

For so long as any Debentures are outstanding, Parent Guarantor will guarantee the delivery of the cash and shares of Parent Guarantor Common Stock
issuable upon conversion of the Debentures pursuant to the terms of this Supplemental Indenture and the Debentures. 
 This Parent Guarantee
shall continue to be effective or be reinstated, as the case may be, if at any time payment on any Debenture, in whole or in part, is rescinded or must otherwise be restored to the Company or Parent Guarantor upon the bankruptcy, liquidation or
reorganization of the Company or otherwise. 
 Parent Guarantor shall be subrogated to all rights of the Holders against the Company in
respect of any amounts paid by Parent Guarantor pursuant to the provisions of this Parent Guarantee or the Indenture; provided, however, that Parent Guarantor hereby waives any and all rights to which it may be entitled, by operation of law
or otherwise, upon making any payment hereunder (i) to be subrogated to the rights of a Holder against the Company with respect to such payment or otherwise to be reimbursed, indemnified or exonerated by the Company in respect thereof or
(ii) to receive any payment in the nature of contribution or for any other reason from any other obligor with respect to such payment, in each case, until the principal of and interest on the Debentures shall have been paid in full. 

Any term or provision of this Supplemental Indenture to the contrary notwithstanding, the maximum aggregate amount of this Parent Guarantee shall not
exceed the maximum amount that can be hereby guaranteed without rendering this Parent Guarantee voidable under applicable law relating to fraudulent conveyances or fraudulent transfers or similar laws affecting the rights of creditors generally.

 Section 2.2. Release. 
 Upon Legal Defeasance
in accordance with Article 8 of the Indenture or satisfaction and discharge of the Indenture in accordance with Article 11 thereof, Parent Guarantor will be released and relieved of any obligations under its Parent Guarantee. 
 So long as Parent Guarantor is not released from its obligations under its Parent Guarantee as provided in this Section 2.2, Parent Guarantor will
remain liable for the full amount 

  

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of principal of and interest and premium and Liquidated Damages, if any, on the Debentures and for the other obligations of any Guarantor under the Indenture
as provided in this Article II. 
 Article III. 
 NOTICES 
 Section 3.1. Notices. The second paragraph of Section 12.02 of the Indenture is hereby
amended and restated in its entirety as follows: 
 If to the Company and/or any Guarantor: 
 Broadwing Corporation 
 1122 Capital of
Texas Highway 
 South Austin, TX 78746 
 Facsimile No.: (512) 328-7902 
 With a copy to Parent Guarantor, as provided below. 
 If to Parent Guarantor: 
 Level 3
Communications, Inc. 
 1025 Eldorado Blvd. 
 Broomfield, CO 80021 
 Attn: General Counsel 
 With a copy to: 
 Willkie Farr &
Gallagher LLP 
 787 Seventh Avenue 
 New York, NY 10019 
 Attn: David K. Boston 
 Fax: (212) 728-9625 
 If to the Trustee: 
 The Bank of New York Trust Company, National Association 
 601 Travis Street, 18th Floor 
 Houston, Texas 77002 
 Facsimile No.: (713) 483-6653 
 Attention: Marcella Burgess 
  

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 Article IV. 
 MISCELLANEOUS 
 Section 4.1. Counterparts. This Supplemental Indenture may be executed in counterparts, each
of which when so executed shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. 
 Section 4.2. Severability. In the event that any provision in this Supplemental Indenture shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby. 
 Section 4.3. Headings. The article and section headings herein are for convenience only and shall not affect
the construction hereof. 
 Section 4.4. Successors and Assigns. Any covenants and agreements in this Supplemental Indenture by the Company,
the Guarantors, Parent Guarantor and the Trustee shall bind their successors and assigns, whether so expressed or not. 
 Section 4.5.
GOVERNING LAW. 
 THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. 
 Section 4.6. Effect of Supplemental Indenture. Except as amended by this Supplemental Indenture, the terms and provisions of the Indenture shall remain in full force and effect. 
 Section 4.7. Trustee. The Trustee accepts the modifications to the Indenture effected by this Supplemental Indenture, but only upon the terms and
conditions set forth in the Indenture. Without limiting the generality of the foregoing, the Trustee assumes no responsibility for the correctness of the recitals herein contained, which shall be taken as the statements of the Company, and the
Trustee shall not be responsible or accountable in any way whatsoever for or with respect to the validity or execution or sufficiency of this Supplemental Indenture, and the Trustee makes no representation with respect thereto. 
 Section 4.8. Definitions. Capitalized terms used but not defined herein shall have the respective meanings ascribed to them in the Indenture. 

Section 4.9. Effectiveness. The provisions of this Supplemental Indenture shall be effective upon the effectiveness of the Merger pursuant to the
Merger Agreement. 
  

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 IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be executed by
their duly authorized representative as of the date hereof. 
  

					
	BROADWING CORPORATION
		
	By:	 	/s/ Kim Larsen
		 	Name:	 	Kim Larsen
		 	Title:	 	President
	
	 DORSAL NETWORKS, LLC
 UNITED CABLE HOLDINGS,
LLC
 CORVIS OPERATIONS, INC.
 CORVIS EQUIPMENT, LLC
 CORVIS GOVERNMENT
 SOLUTIONS, INC.
 C III COMMUNICATIONS, LLC
 BROADWING COMMUNICATIONS, LLC
 BROADWING COMMUNICATIONS
 REAL ESTATE SERVICES, LLC
 BROADWING COMMUNICATIONS
 CANADA, LLC
 BROADWING COMMUNICATIONS
 HOLDINGS, INC.
 BROADWING COMMUNICATIONS
 CORPORATION
 BROADWING FINANCIAL
 SERVICES, INC.



  

					
		
	By:	 	/s/ Kim Larsen
		 	Name:	 	Kim Larsen
		 	Title:	 	President


  

					
	
	LEVEL 3 COMMUNICATIONS, INC.
		
	By:	 	/s/ Thomas C. Stortz
		 	Name:	 	Thomas C. Stortz
		 	Title:	 	Executive Vice President


  

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	 THE BANK OF NEW YORK TRUST
 COMPANY,
NATIONAL
 ASSOCIATION, as trustee

		
	By:	 	/s/ Alma Marcella Burgess
		 	Name: Alma Marcella Burgess
		 	Title:   Assistant Treasurer


  

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