Exhibit 10.1


 


EXECUTION COPY


 


THIRD SUPPLEMENTAL INDENTURE


 


between


 


LEVEL 3 COMMUNICATIONS, INC.


 


and


 


THE BANK OF NEW YORK MELLON


 


as Trustee


 


6.5% Convertible Senior Notes due 2016


 






 


Dated as of September 20, 2010


 


Supplement to Indenture dated as of December 24, 2008


(Senior Debt Securities)


 

















 


THIS
THIRD SUPPLEMENTAL INDENTURE, dated as of September 20, 2010, is by and
between Level 3 Communications, Inc., a Delaware corporation (the “Company”),
and The Bank of New York Mellon, a New York banking corporation (the “Trustee”),
as Trustee under the Indenture (defined below).


 


WHEREAS,
the Company and the Trustee have, as of December 24, 2008, entered into an
indenture (as supplemented, the “Indenture”), providing for the issuance
by the Company from time to time of its senior debt securities;


 


WHEREAS,
Section 9.01 of the Indenture provides, among other things, that the
Company, when authorized by or pursuant to a Board Resolution, and the Trustee
may, without the consent of the Holders of Securities, enter into one or more
indentures supplemental to the Indenture to establish the form or terms of
Securities of any series, including the provisions and procedures providing for
the adjustment of conversion rights with respect to Securities convertible into
Common Stock, or to change or eliminate any of the provisions of the Indenture,
provided that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution
of such supplemental indenture which is entitled to the benefit of such
provisions;


 


WHEREAS,
the Company desires to issue one series of convertible senior debt securities
under the Indenture, and has duly authorized the creation and issuance of such
debt securities under the Indenture, and has duly authorized the execution and
delivery of this Third Supplemental Indenture to modify the Indenture and to
provide certain additional provisions as hereinafter described;


 


WHEREAS,
the Company and the Trustee deem it advisable to enter into this Third
Supplemental Indenture for the purposes of establishing the terms of such
convertible senior debt securities and providing for the rights, obligations
and duties of the Trustee with respect to such debt securities;


 


WHEREAS,
concurrently 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 pursuant to Sections 3.03 and 9.03 of the Indenture and a reliance
letter upon an opinion of counsel; and


 


WHEREAS,
all conditions and requirements of the Indenture necessary to make this Third
Supplemental Indenture 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 I


 


CREATION
OF THE SECURITIES


 


SECTION 1.1.  Designation of the Series.  Pursuant to the terms hereof and Sections
2.01 and 3.01 of the Indenture, the Company hereby creates a series of its
convertible senior debt securities designated as the “6.5% Convertible Senior
Notes due 2016” (the “Notes”), which Notes shall be deemed “Securities”
for all purposes under the Indenture.


 


SECTION 1.2.  Form of Securities.  The Notes will be issued in definitive form
without coupons and the definitive form of the Notes shall be substantially in
the form set forth in Exhibit A attached hereto, which is
incorporated herein and made part hereof. 
The Notes shall bear interest, be payable and have such other terms as
are stated in the form of definitive Note or in the Indenture, as supplemented
by this Third Supplemental Indenture. 
The Stated Maturity of the Notes shall be October 1, 2016.


 


SECTION 1.3.  Limit on Amount of Securities.  Subject to Section 1.9, the aggregate
principal amount of the Notes to be issued initially will not exceed
$175,000,000 ($201,250,000 if the underwriters party to the Underwriting
Agreement, dated September 14, 2010, by and among the Company and the
underwriters named therein in respect of the Notes exercise in full their
overallotment option) and may, upon the execution and delivery of this Third
Supplemental Indenture or from time to time thereafter, be executed by the
Company and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Notes to or upon the Company Order,
without further action by the Company.


 


SECTION 1.4.  Ranking.  The Notes will be the Company’s unsecured and
unsubordinated obligations and rank equal in right of payment with all of the
Company’s existing and future unsecured and unsubordinated indebtedness.


 


SECTION 1.5.  Certificate of Authentication.  The Trustee’s certificate of authentication
to be borne on the Notes shall be substantially as provided in the form of note
attached hereto as Exhibit A.


 


SECTION 1.6.  No Sinking Fund.  No sinking fund will be provided with respect
to the Notes (notwithstanding any provisions of the Indenture with respect to
sinking fund obligations).


 


SECTION 1.7.  No Additional Amounts.  No Additional Amounts will be payable with
respect to the Notes (notwithstanding any provisions of the Indenture with
respect to Additional Amount obligations).


 


SECTION 1.8.  Repayment at the Option of Holders.  There will be no right of repayment at the
option of the Holders pursuant to Article Thirteen of the Indenture.


 


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SECTION 1.9.  Additional Notes.  The Company may, without the consent of the
Holders and notwithstanding Section 1.3, reopen the Notes and issue
additional Notes hereunder with the same terms and with the same CUSIP number
as the Notes initially issued hereunder in an unlimited aggregate principal
amount, which will form the same series with the Notes initially issued
hereunder, provided that no such additional Notes may be so issued unless
fungible with the Notes initially issued hereunder for U.S. federal income tax
purposes.


 


SECTION 1.10.  Definitions.  (a)  Capitalized terms used herein and
not otherwise defined shall have the respective meanings assigned thereto in
the Indenture.


 


(b)  Solely for
purposes of this Third Supplemental Indenture and the Notes, the following
definitions of Section 1.01 of the Indenture are hereby amended and
restated in their entirety to read as follows:


 


“Material
Subsidiary” means any Subsidiary of the Company which at the date of
determination is a “significant subsidiary” as defined in Rule 1-02(w) of
Regulation S-X under the Securities Act and the Exchange Act.


 


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


 


“Subsidiary”
of any Person means (a) a corporation more than 50% of the combined voting
power of the outstanding Voting Stock of which is owned, directly or
indirectly, by such Person or by one or more other Subsidiaries of such Person
or by such Person and one or more Subsidiaries thereof or (b) any other
Person (other than a corporation) in which such Person, or one or more other
Subsidiaries of such Person and one or more other Subsidiaries thereof,
directly or indirectly, has at least a majority ownership and power to direct
the policies, management and affairs thereof.


 


(c)  Solely for
purposes of this Third Supplemental Indenture and the Notes, the following
terms shall have the indicated meanings:


 


“Acquired
Debt” means, with respect to any specified Person, (a) indebtedness of
any other Person existing at the time such Person merges with or into or
consolidates with such specified Person and (b) indebtedness secured by a
Lien encumbering any property acquired by such specified Person, which
indebtedness in each case was not incurred in anticipation of, and was
outstanding prior to, such merger, consolidation or acquisition.


 


“Capital
Stock” of any Person means any and all shares, interests, participations or
other equivalents (however designated) of corporate stock or other equity
participations, including partnership interests, whether general or limited, of
such Person and any rights (other than debt securities convertible and
exchangeable into an equity interest), warrants or options to acquire an equity
interest in such Person.


 


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“Change
in Control” after the original issuance of the Notes means the occurrence
of one or more of the following events:


 


(a) any “person” or “group” (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act or any successor provisions to either of the
foregoing), including any group acting for the purpose of acquiring, holding,
voting or disposing of securities within the meaning of Rule 13d-5(b)(1) under
the Exchange Act, other than any one or more of the Permitted Holders, becomes
the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act,
except that a person will be deemed to have “beneficial ownership” of all
shares that any such person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of 35% or more of the total voting power of the Voting Stock of the
Company (other than as a result of any merger, share exchange, transfer of assets
or similar transaction solely for the purpose of changing the Company’s
jurisdiction of incorporation and resulting in a reclassification, conversion
or exchange of outstanding shares of the Common Stock solely into shares of
common stock of the surviving entity); provided, however, that
the Permitted Holders are the “beneficial owners” (as defined in Rule 13d-3
under the Exchange Act, except that a person will be deemed to have “beneficial
ownership” of all shares that any such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, in the aggregate of a lesser percentage of the total
voting power of the Voting Stock of the Company than such other person or group
(for purposes of this clause (a), such person or group shall be deemed to
beneficially own any Voting Stock of a corporation (the “specified
corporation”) held by any other corporation (the “parent corporation”)
so long as such person or group beneficially owns, directly or indirectly, in
the aggregate a majority of the total voting power of the Voting Stock of such
parent corporation); or


 


(b) (i) any “person” or “group” (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act or any successor
provisions to either of the foregoing), including any group acting for the
purpose of acquiring, holding, voting or disposing of securities within the
meaning of Rule 13d-5(b)(1) under the Exchange Act, becomes the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act, except that a
person will be deemed to have “beneficial ownership” of all shares that any
such person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of a
majority of the total voting power of the Voting Stock of the Company (other
than as a result of any merger, share exchange, transfer of assets or similar
transaction solely for the purpose of changing the jurisdiction of
incorporation of the Company and resulting in a reclassification, conversion or
exchange of outstanding shares of the Common Stock solely into shares of common
stock of the surviving entity) and (ii) a Termination of Trading shall
have occurred; or


 


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(c) the Company’s consolidation or merger with or into any other
Person, any merger of another Person into the Company, or any sale, transfer,
assignment, lease, conveyance or other disposition, directly or indirectly, of
all or substantially all the assets of the Company and its Subsidiaries,
considered as a whole (other than a disposition of such assets as an entirety
or virtually as an entirety to a wholly owned Subsidiary of the Company or one
or more Permitted Holders) shall have occurred, other than (i) any
transaction (A) that does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of the Company’s Capital Stock
and (B) pursuant to which holders of the Company’s Capital Stock
immediately prior to the transaction are entitled to exercise, directly or
indirectly, 50% or more of the total voting power of all shares of Capital
Stock entitled to vote generally in the election of directors of the continuing
or surviving person immediately after the transaction; or (ii) any merger,
share exchange, transfer of assets or similar transaction solely for the
purpose of changing the Company’s jurisdiction of incorporation and resulting
in a reclassification, conversion or exchange of outstanding shares of the
Common Stock solely into shares of common stock of the surviving entity; provided,
however, that a Change in Control as a result of this clause (c) will
not be deemed to have occurred if at least 90% of the consideration (excluding
cash payments for fractional shares) in the transaction or transactions
constituting the Change in Control consists of shares of common stock that are,
or upon issuance will be, traded on the New York Stock Exchange or the NYSE
Alternext or approved for trading on a Nasdaq market and as a result of such
transaction or transactions the Notes become convertible solely into such
common stock and other consideration payable in such transaction or
transactions; or


 


(d) during any period of two consecutive years, individuals who at
the beginning of such period constituted the board of directors of the Company
(together with any new directors whose election or appointment by such board or
whose nomination for election by the shareholders of the Company was approved
by a vote of a majority of the directors then still in office who were either
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the board of directors of the Company then in office; or


 


(e) the shareholders of the Company shall have approved any plan
of liquidation or dissolution of the Company.


 


“Closing
Sale Price” of the shares of Common Stock on any date means the closing per
share sale price (or, if no closing sale price is reported, the average of the
closing bid and ask prices or, if more than one in either case, the average of
the average closing bid and the average closing ask prices) on such date as
reported in composite transactions on the Nasdaq Global Select Market or such
principal United States securities exchange on which shares of Common Stock may
be traded or, if the shares of Common Stock are not approved for trading on the
Nasdaq Global Select Market or listed on a United States national or regional
securities exchange, as reported by the Nasdaq 


 


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system
or by the National Quotation Bureau Incorporated.  In the absence of such quotations, the
Company shall be entitled to determine the Closing Sale Price on the basis of
such quotations as it considers appropriate. 
Closing Sale Price shall be determined without reference to extended or
after hours trading.


 


“Conversion
Agent” means the Trustee or any other Person appointed by the Company to
accept Notes presented for conversion.


 


“Conversion
Price” means $1,000 divided by the applicable Conversion Rate.


 


“Conversion
Rate” is defined in Section 15.04 of the Indenture as amended by this
Third Supplemental Indenture.


 


“Current
Market Price” has the meaning set forth in Section 15.05(f)(1) of
the Indenture as amended by this Third Supplemental Indenture.


 


“Designated
Event” means the occurrence of a Change in Control or a Termination of
Trading.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.


 


“Fair
Market Value” has the meaning set forth in Section 15.05(f)(2) of
the Indenture as amended by this Third Supplemental Indenture.


 


“Lien” means any mortgage or deed of
trust, pledge, hypothecation, security interest, lien, charge, encumbrance or
other security agreement of any kind or nature whatsoever; provided, however,
that Liens shall not include defeasance trusts or funds.  For purposes of this definition, the sale,
lease, conveyance or other transfer by the Company or any of its subsidiaries
of, including the grant of indefeasible rights of use or equivalent
arrangements with respect to, dark or lit communications fiber capacity or
communications conduit shall not constitute a Lien.


 


“Permitted
Holders” means the members of the Company’s Board of Directors on April 28,
1998, and their respective estates, spouses, ancestors, and lineal descendants,
the legal representatives of any of the foregoing and the trustees of any bona
fide trusts of which the foregoing are the sole beneficiaries or the grantors,
or any Person of which the foregoing “beneficially owns” (as defined in Rule 13d-3
under the Exchange Act) at least 66-2/3% of the total voting power of the
Voting Stock of such Person.


 


“Record
Date” has the meaning set forth in Section 15.05(f)(3) of the
Indenture as amended by this Third Supplemental Indenture.


 


“Redemption
Price”, when used with respect to any of the Notes to be redeemed, means a
price equal to 100% of the principal amount of the Notes redeemed.


 


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“Securities
Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.


 


“Specified Indebtedness” means (a) the
Company’s 5.25% Convertible Senior Notes due 2011, 3.5% Convertible Senior Notes
due 2012, 9% Convertible Senior Discount Notes due 2013, 15% Convertible Senior
Notes due 2013, 7% Convertible Senior Notes due 2015 and 7% Convertible Senior Notes due 2015, Series B and (b) any
indebtedness of the Company for borrowed money that (i) is in the form of,
or represented by, bonds, notes, debentures or other securities or any
guarantee thereof (other than promissory notes or similar evidences of
indebtedness under bank loans, reimbursement agreements, receivables facilities
or other bank, insurance or other institutional financing agreements under Section 4(2) of
the Securities Act or any guarantee thereof) and (ii) is, or may be, quoted,
listed or purchased and sold on any stock exchange, automated securities
trading system or over-the-counter or other securities market (including,
without prejudice to the generality of the foregoing, the market for securities
eligible for resale pursuant to Rule 144A under the Securities Act). For the
avoidance of doubt, “Specified Indebtedness” shall not include indebtedness
among the Company and its Subsidiaries or among Subsidiaries of the Company.


 


“Termination
of Trading” will be deemed to have occurred if the Common Stock (or other
common stock into which the Notes are then convertible) is not listed for
trading on a U.S. national securities exchange.


 


“Trading Day” means (a) if the
applicable security is quoted on the Nasdaq Global Select Market, a day on
which trades in the applicable security may be made thereon, (b) if the
applicable security is listed or admitted for trading on the New York Stock
Exchange or another national or regional securities exchange, a day on which
trades in the applicable security may be made thereon or (c) if the applicable
security is not so listed, admitted for trading or quoted, any Business Day.


 


“Voting
Stock” of any Person means the Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or only for
so long as no senior class of securities has such voting power by reason of any
contingency.


 


ARTICLE II


 


EVENTS
OF DEFAULT


 


SECTION 2.1.  Amendments to Article Five.  Article Five of the Indenture is amended
and restated in its entirety with respect to the Notes as follows:


 


“SECTION 5.01.  Events of Default.  An “Event of Default” with respect to
any Notes occurs if:


 


(a) 
the Company defaults in the payment of principal of, or premium, if any, on the
Notes when due at maturity, upon repurchase, upon acceleration or otherwise, 


 


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including,
without limitation, failure of the Company to make any optional redemption
payment when required pursuant to Article VII of the Third Supplemental
Indenture; or


 


(b) 
the Company defaults in the payment of any installment of interest on the Notes
when due (including any interest payable in connection with a repurchase
pursuant to Section 10.06 or in connection with any optional redemption
payment pursuant to Article VII of the Third Supplemental Indenture) and
continuance of such default for 30 days or more; or


 


(c) 
(i) the Company defaults in the payment of the Designated Event Payment in
respect of the Notes on the date therefor; or (ii) the Company fails to
provide timely notice of any Designated Event in accordance with Sections 10.06
and 10.07; or


 


(d) 
the Company defaults (other than a default set forth in clause (a), (b) or
(c) above) in the performance of, or breaches, any other covenant or
warranty of the Company set forth in this Indenture or the Notes and fails to
remedy such default or breach within a period of 60 days after the receipt of
written notice (specifying such default or breach and requiring it to be
remedied and stating that such notice is a “Notice of Default” hereunder) from
the Trustee or the Holders of at least 25% in aggregate principal amount of the
then outstanding Notes; or


 


(e) 
a default under any credit agreement, mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company or any Material Subsidiary (or
the payment of which is guaranteed or secured by the Company or any of its
Material Subsidiaries), whether such indebtedness or guarantee exists on the
date of this Indenture or is created thereafter, which default (i) is
caused by a failure to pay when due any principal of such indebtedness within
the grace period provided for in such indebtedness, which failure continues
beyond any applicable grace period (a “Payment Default”), or (ii) results
in the acceleration of such indebtedness prior to its express maturity (without
such acceleration being rescinded or annulled) and, in each case, the principal
amount of such indebtedness, together with the principal amount of any other
such indebtedness under which there is a Payment Default or the maturity of
which has been so accelerated, aggregates $25,000,000 or its foreign currency
equivalent or more and such Payment Default is not cured or such acceleration
is not annulled within 10 days after receipt of written notice (specifying such
default and requiring the Company to cause such Payment Default to be cured or
cause such acceleration to be rescinded or annulled and stating that such
notice is a “Notice of Default” hereunder) by the Company from the Trustee or
by the Company and the Trustee from any Holder of Notes; or


 


(f) 
failure to pay a final, nonappealable judgment or final, nonappealable
judgments (other than any judgment as to which a reputable insurance company
has accepted full liability) for the payment of money entered by a court or
courts of competent jurisdiction against the Company or any Material
Subsidiaries of the Company, which judgments remain unstayed, unbonded or
undischarged for a period of 60 days, provided that the aggregate amount
of all such judgments exceeds $25,000,000 or its foreign currency equivalent;
or


 


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(g) 
the Company or any Material Subsidiary, pursuant to or within the meaning of
any Bankruptcy Law:


 


(i)  commences a voluntary case,


 


(ii)  consents to the entry of an order for
relief against it in an involuntary case,


 


(iii)  consents to the appointment of a
Custodian of it or for all or substantially all of its property,


 


(iv)  makes a general assignment for the
benefit of its creditors, or


 


(v)  makes the admission in writing that it
generally is unable to pay its debts as the same become due; or


 


(h) 
a court of competent jurisdiction enters a judgment, order or decree under any
Bankruptcy Law that:


 


(i)  is for relief against the Company or any
Material Subsidiary in an involuntary case, and the order or decree remains
unstayed and in effect for 90 days,


 


(ii)  appoints a Custodian of the Company or
any Material Subsidiary, and the order or decree remains unstayed and in effect
for 90 days, or


 


(iii)  orders the liquidation of the Company or
any Material Subsidiary, and the order or decree remains unstayed and in effect
for 90 days.


 


The
term “Bankruptcy Law” means Title 11, U.S. Code or any similar Federal
or state law for the relief of debtors. 
The term “Custodian” means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.


 


(i) The Company
defaults with respect to its obligation to deliver when due all shares of
Common Stock or other property deliverable upon conversion of the Notes which
default continues for 5 Business Days.


 


SECTION 5.02.  Acceleration.  If an Event of Default (other than an Event
of Default with respect to the Company specified in clauses (g) and (h) of
Section 5.01) occurs and is continuing, then and in every such case, the
Trustee, by written notice to the Company, or the Holders of at least 25% in
aggregate principal amount of the then outstanding Notes, by written notice to
the Company and the Trustee, may declare the unpaid principal of, premium, if
any, and accrued and unpaid interest on all of the Notes to be due and payable.  Upon such declaration, such principal amount,
premium, if any, and accrued and unpaid interest shall become immediately due
and payable, notwithstanding anything contained in this Indenture or the Notes
to the contrary.  If any Event of Default
with respect to the Company specified in clause (g) or (h) of Section 5.01
occurs, all unpaid principal of, and premium, if any, and accrued and unpaid
interest 


 


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on
the Notes then outstanding shall become automatically due and payable, without
any declaration or other act on the part of the Trustee or any Holder of Notes.


 


The
Holders of a majority in aggregate principal amount of the then outstanding
Notes by notice to the Trustee may rescind an acceleration of the Notes and its
consequences if all existing Events of Default (other than nonpayment of
principal of, premium, if any, and interest on the Notes which has become due
solely by virtue of such acceleration) have been cured or waived and if the
rescission would not conflict with any judgment or decree of any court of
competent jurisdiction.  No such
rescission shall affect any subsequent Default or Event of Default or impair
any right consequent thereto.


 


SECTION 5.03.  Other Remedies.  If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of or interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture.  The Trustee may maintain a proceeding even if
it does not possess any of the Notes or does not produce any of them in the
proceeding.  A delay or omission by the
Trustee or any Holder of a Note in exercising any right or remedy occurring
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default.  All remedies are cumulative to the extent
permitted by law.


 


SECTION 5.04.  Waiver of Past Defaults.  The Holders of a majority in aggregate
principal amount of the Notes then outstanding may, on behalf of the Holders of
all the Notes, waive an existing Default or Event of Default and its
consequences, except a Default or Event of Default in the payment of the
principal of, and premium, if any, or interest on the Notes (other than the
non-payment of principal of, and premium, if any, and interest on the Notes
which has become due solely by virtue of an acceleration which has been duly
rescinded as provided above), or in respect of a covenant or provision of this Indenture
which cannot be modified or amended without the consent of all Holders of
Notes.  When a Default or Event of
Default is waived, it is cured and stops continuing.  No waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon.


 


SECTION 5.05.  Control by Majority.  The Holders of a majority in aggregate
principal amount of the then outstanding Notes may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it. 
However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability; provided, however, that the
Trustee shall have no duty or obligation (subject to Section 6.02) to
ascertain whether or not such actions or forbearances are unduly prejudicial to
such Holders; provided  further, however that the Trustee
may take any other action the Trustee deems proper that is not inconsistent
with such directions.


 


SECTION 5.06.  Limitation on Suits.  A Holder of a Note may not pursue any remedy
with respect to this Indenture or the Notes unless:


 


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(a) 
the Holder gives to the Trustee notice of a continuing Event of Default;


 


(b) 
the Holders of at least 25% in aggregate principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the remedy;


 


(c) 
such Holder or Holders offer and, if requested, provide to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or expense;


 


(d) 
the Trustee does not comply with the request within 30 days after receipt of
the request and the offer and, if requested, the provision of indemnity; and


 


(e) 
during such 30-day period the Holders of a majority in aggregate principal
amount of the then outstanding Notes do not give the Trustee a direction inconsistent
with the request.


 


A
Holder of a Note may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.


 


SECTION 5.07.  Rights of Holders To Receive Payment.  Notwithstanding any other provision of this
Indenture, the right of any Holder of a Note to receive payment of principal,
premium, if any, and interest on the Note, on or after the respective due dates
expressed in the Note, or to bring suit for the enforcement of any such payment
on or after such respective dates, or to bring suit for the enforcement of the
right to convert the Note shall not be impaired or affected without the consent
of the Holder of a Note.


 


SECTION 5.08.  Collection Suit by Trustee.  If an Event of Default specified in Section 5.01(a),
(b) or (c)(i) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount of principal, premium, if any, and interest remaining
unpaid on the Notes and interest on overdue principal, premium, if any, and
interest and such further amount as shall be sufficient to cover the costs and,
to the extent lawful, expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.


 


SECTION 5.09.  Trustee May File Proofs of Claim.  The Trustee may file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee and the Holders of Notes allowed in any judicial
proceedings relative to the Company, its creditors or its property.  Nothing contained herein shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Holder of a Note any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.


 


11

















 


SECTION 5.10.  Priorities.  Any money collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such money on
account of principal (or premium, if any) or interest, upon presentation of the
Notes or coupons, or both, as the case may be, and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:


 


FIRST:  To the payment of all
amounts due the Trustee and any predecessor Trustee under Section 6.07;


 


SECOND:  To the payment of the
amounts then due and unpaid upon the Notes for principal (and premium, if any)
and interest, in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind, according
to the aggregate amounts due and payable on such Notes for principal (and
premium, if any) and interest, respectively; and


 


THIRD:  To the payment of the
remainder, if any, to the Company.


 


SECTION 5.11.  Undertaking for Costs.  In any suit for the enforcement of any right
or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as a Trustee, a court in its discretion may
require the filing by any party litigant in the suit, other than the Trustee,
of an undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys fees, against any
party litigant in the suit, having due regard to the merits and good faith of
the claims or defenses made by the party litigant.  This Section does not apply to a suit by
the Trustee, a suit by a Holder pursuant to Section 5.07 or a suit by
Holders of more than 25% in principal amount of the then outstanding Notes.


 


SECTION 5.12. Restoration of Rights and
Remedies.  If the Trustee or any
Holder of a Note has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case, the Company, the Trustee and the Holders of Notes
shall, subject to any determination in such proceeding, be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.


 


SECTION 5.13.
Rights and Remedies Cumulative. 
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or coupons in the last
paragraph of Section 3.06, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Notes is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.


 


12

















 


SECTION 5.14.
Waiver of Usury, Stay or Extension Laws. 
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.”


 


ARTICLE III


 


CONSOLIDATION,
MERGER, SALE, LEASE OR CONVEYANCE


 


SECTION 3.1.  Amendments to Article Eight.  Article Eight of the Indenture is
amended and restated in its entirety with respect to the Notes as follows:


 


“SECTION 8.01.  When the Company May Merge, Etc.  The Company may not, in a single transaction
or series of related transactions, consolidate or merge with or into or effect
a share exchange with (whether or not the Company is the surviving
corporation), or sell, assign, transfer, lease, convey or otherwise dispose of
all or substantially all of its properties or assets as an entirety or
substantially as an entirety to, any Person unless:


 


(a) 
either


 


(i)  the Company shall be the surviving or
continuing corporation, or


 


(ii)  the Person formed by or surviving any
such consolidation, merger or share exchange (if other than the Company) or the
Person which acquires by sale, assignment, transfer, lease, conveyance or other
disposition the properties and assets of the Company substantially as an
entirety:


 


(1)  shall be a corporation organized and
validly existing under the laws of the United States or any State thereof or
the District of Columbia and


 


(2)  shall expressly assume, by supplemental
indenture in form reasonably satisfactory to the Trustee, executed and
delivered to the Trustee, the due and punctual payment of the principal of, and
interest, and premium, if any, on all of the Notes and the performance of every
covenant of the Notes and this Indenture on the part of the Company to be
performed or observed, including, without limitation, modifications to rights
of Holders to cause the repurchase of Notes upon a Designated Event in
accordance with Section 10.06 and conversion rights in accordance with Section 15.06
to the extent required by such Sections;


 


13

















 


(b) 
immediately after giving effect to such transaction, no Default and no Event of
Default shall have occurred and be continuing; and


 


(c) 
the Company or such successor Person shall have delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel each stating that such
consolidation, merger, share exchange, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction, such
supplemental indenture, comply with this provision of this Indenture and that
all conditions precedent in this Indenture relating to such transaction have
been satisfied.


 


For
purposes of this Section 8.01, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of transactions) of all or substantially
all of the properties or assets of one or more Subsidiaries of the Company, the
Capital Stock of which individually or in the aggregate constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.


 


SECTION 8.02.  Successor Corporation Substituted.  Upon any such consolidation, merger, share
exchange, sale, assignment, conveyance, lease, transfer or other disposition in
accordance with Section 8.01, the successor Person formed by such
consolidation or share exchange or into which the Company is merged or to which
such sale, assignment, conveyance, lease, transfer or other disposition is made
will succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
had been named as the Company herein, and thereafter (except in the case of a
lease) the predecessor corporation will be relieved of all further obligations
and covenants under this Indenture and the Notes.


 


SECTION 8.03.  Purchase Option on Change in Control.  This Article Eight does not affect the
obligations of the Company (including without limitation any successor to the
Company) under Section 10.06.”


 


ARTICLE IV


 


SUPPLEMENTAL
INDENTURES


 


SECTION 4.1.  Amendments to Article Nine.  (a)  Section 9.01 is hereby amended
with respect to the Notes by deleting the “.” from the end of clause (10) thereof
and substituting “; or” in its place and by adding the following to the end
thereof:


 


“(11)  to provide for the assumption of the Company’s
obligations to Holders of Notes in the Indenture as supplemented by Article III
of the Third Supplemental Indenture; or


 


(12)  to provide for conversion rights or
repurchase rights of Holders of Notes in the event of consolidation, merger,
share exchange or sale of all or substantially all of the assets of the Company
as required to comply with Section 8.01 or 15.06; or


 


14

















 


(13)  to increase the Conversion Rate; or


 


(14)  to add guarantees with respect to the Notes;
or


 


(15)  to comply with the requirements of the
Commission in order to effect or maintain the qualification of this Indenture
under the TIA.”


 


(b) 
Section 9.02(1) is hereby amended and restated in its entirety with
respect to the Notes to read as follows: 
“(1)    change the Stated
Maturity of the principal of (or premium, if any, on) or any installment of
principal of or interest on, including Defaulted Interest, any Note; or reduce
the principal amount thereof or the rate or amount of interest thereon or alter
the provisions of this Indenture with respect to the purchase of the Notes at
the option of the Holders upon a Designated Event in a manner adverse to the
Holders thereof, or adversely affect any right of repayment at the option of
the Holder of any Note, or change any Place of Payment where, or the currency
or currencies, currency unit or units or composite currency or currencies in
which, any Note or any premium or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any payment on or after the
Stated Maturity thereof (or, in the case of purchase at the option of the
Holder, on or after the Designated Event Purchase Date), or”.


 


(c) Section 9.02(4) is
hereby amended with respect to the Notes by deleting the “.” from the end of
such clause and substituting a “, or” in its place and by adding the following
to the end thereof:


 


“(5) 
waive a Default or Event of Default in the payment of principal of or premium,
if any, or interest on the Notes (except a rescission of acceleration of the
Notes by the Holders of at least a majority in aggregate principal amount of
the Notes then outstanding and a waiver of the payment default that resulted
from such acceleration) or of a Designated Event Payment; or


 


(6) 
make any change in the provisions of this Indenture relating to waivers of past
Defaults or Events of Default or the rights of Holders of Notes to receive
payments of principal of, premium, if any, or interest on the Notes; or


 


(7) 
make any adverse change to the abilities of Holders of Notes to enforce their
rights under this Indenture; or


 


(8) 
except as permitted by this Indenture (including Section 9.01(9)),
decrease the Conversion Rate, or modify the provisions of this Indenture
relating to conversion of the Notes in a manner adverse to the Holders thereof
or otherwise impair the right of Holders to convert their Notes, upon the terms
established pursuant to or in accordance with the provisions of this Indenture.”


 


15

















 


ARTICLE V


 


PURCHASE
AT OPTION OF HOLDERS UPON A DESIGNATED EVENT;


LIMITATION
ON LIENS


 


SECTION 5.1.  Amendment to Article Ten.  Article Ten is amended by adding to the
end the following new Sections 10.06 through Section 10.13, in each case
with respect to the Notes to read as follows:


 


“SECTION 10.06.  Purchase of Notes at Option of the Holders
upon a Designated Event.  (a) 
Following a Designated Event, the Company shall notify the Holders of Notes in
writing of such occurrence and shall make an offer (the “Designated Event
Offer”) to repurchase all Notes then outstanding at a repurchase price in
cash (the “Designated Event Payment”) equal to 100% of the principal
amount thereof, plus (subject to the following sentence) accrued and unpaid
interest to, but excluding, the Designated Event Purchase Date (as defined
below).  If such Designated Event
Purchase Date is after a Regular Record Date or a Special Record Date but on or
prior to the corresponding Interest Payment Date or a Defaulted Interest
payment date, however, then the Company shall pay the interest payable on such
date to the Person in whose name the Note is registered at the close of
business on the relevant Regular Record Date or Special Record Date.


 


(b)  Notice
of a Designated Event shall be mailed by or at the direction of the Company to
the Holders of Notes as specified in Section 10.07.  During the period specified in such notice,
Holders of Notes may elect to tender their Notes in whole or in part in
integral multiples of $1,000 in exchange for the Designated Event Payment.  Payment shall be made by the Company in
respect of Notes properly tendered pursuant to this Section 10.06 on a
Business Day specified by the Company (the “Designated Event Purchase Date”)
which shall be no earlier than 20 Business Days and no later than
30 Business Days after the date of the notice given pursuant to Section 10.07.


 


SECTION 10.07.  Notice of Designated Event; Designated
Event Purchase Notice.


 


(a) 
Within 30 days after the occurrence of a Designated Event, the Company, or, at
the written request and expense of the Company within 30 days after such
occurrence, the Trustee, shall give to all Holders notice of the occurrence of
the Designated Event and of the purchase right set forth herein arising as a
result thereof.  The Company shall also
deliver a copy of such notice of a purchase right to the Trustee.  The notice shall include a form of Designated
Event Purchase Notice to be completed by the Holder and shall state:


 


(1)  briefly, the events causing a Designated Event and the date
of such Designated Event;


 


(2)  the date by which the Designated Event Purchase Notice
pursuant to this Section 10.07 must be given;


 


16

















 


(3)  the Designated Event Purchase Date;


 


(4)  the Designated Event Payment;


 


(5)  the name and address of the Paying Agent and the Conversion
Agent;


 


(6)  that Notes as to which a Designated Event Purchase Notice has
been given may be converted pursuant to the Indenture only if the Designated
Event Purchase Notice has been withdrawn in accordance with the terms of this
Indenture;


 


(7)  that Notes must be surrendered to the Paying Agent to collect
payment;


 


(8)  that the Designated Event Payment for any Note as to which a
Designated Event Purchase Notice has been duly given and not withdrawn will be
paid promptly following the later of the Designated Event Purchase Date and the
time of surrender of such Note as described in (7) above;


 


(9)  briefly, the procedures the Holder must follow to exercise
rights under Section 10.06;


 


(10)  briefly, the conversion rights of the Notes, including the
Conversion Rate and any adjustments thereto, including, if such Designated
Event constitutes a Change in Control described in clause (b) or (c) in
the definition thereof, whether any Additional Shares (as defined in Section 15.01)
will be issued by the Company to Holders of Notes who convert their Notes in
connection with such Change in Control;


 


(11)  the procedures for
withdrawing a Designated Event Purchase Notice;


 


(12)  the CUSIP number of the
Notes;


 


(13)  that, unless the Company
defaults in making the Designated Event Payment, any Note accepted for purchase
pursuant to the Designated Event Offer shall cease to accrue interest on the
Designated Event Purchase Date and no further interest shall accrue on or after
such date; and


 


(14)  that in the case of a
Designated Event Purchase Date that occurs after a Regular Record Date or
Special Record Date and on or prior to the corresponding Interest Payment Date
or Defaulted Interest payment date, the interest due on such date shall be paid
to the Holder of such Note at the close of business on the relevant Regular
Record Date or Special Record Date.


 


(b) 
A Holder may exercise its rights specified in Section 10.06 hereof upon
delivery of a written notice of purchase (a “Designated Event Purchase
Notice”) to the Paying Agent prior to the Designated Event Purchase Date,
stating:


 


17






 












 


(1)  the certificate number, if
any, of each Note, if any, which the Holder will deliver to be purchased;


 


(2)  the portion of the principal
amount of the Note which the Holder will deliver to be purchased, which portion
must be $1,000 or any whole multiple thereof; and


 


(3)  that such Note shall be
purchased pursuant to the terms and conditions specified on the reverse side of
the Notes and in this Indenture;


 


provided, however,
that if the Notes are not in certificated form, a Holder’s Designated Event Purchase
Notice must comply with the applicable Depositary procedures.


 


The
delivery of such Note to the Paying Agent prior to the Designated Event
Purchase Date (together with all necessary endorsements) at the offices of the
Paying Agent shall be a condition to the receipt by the Holder of the
Designated Event Payment therefor; provided, however, that such
Designated Event Payment shall be so paid only if the Note so delivered to the
Paying Agent shall conform in all respects to the description thereof set forth
in the related Designated Event Purchase Notice.


 


The
Company shall purchase from the Holder thereof, pursuant to this Section 10.07,
a portion of a Note so delivered for purchase if the principal amount of such
portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Note also apply to the
purchase of such portion of such Note.


 


Any
purchase by the Company contemplated pursuant to the provisions of this Section
10.07 shall be consummated by the delivery of the consideration to be received
by the Holder promptly following the later of the Designated Event Purchase
Date and the time of delivery of the Note to the Paying Agent in accordance
with this Section 10.07.


 


Notwithstanding
anything herein to the contrary, any Holder delivering to the Paying Agent the
Designated Event Purchase Notice contemplated by this Section 10.07(b) shall
have the right to withdraw such Designated Event Purchase Notice at any time
prior to the close of business on the Business Day immediately preceding the
Designated Event Purchase Date by delivery of a written notice of withdrawal to
the Paying Agent in accordance with Section 10.08.


 


The
Paying Agent shall promptly notify the Company of the receipt by it of any
Designated Event Purchase Notice or written withdrawal thereof.


 


SECTION
10.08.  Effect of Designated Event
Purchase Notice.  Upon receipt by the
Paying Agent of the Designated Event Purchase Notice specified in Section 10.07,
the Holder of the Note in respect of which such Designated Event Purchase
Notice was given shall (unless such Designated Event Purchase Notice is 


 


18

















 


withdrawn
as specified in the following two paragraphs) thereafter be entitled to receive
solely the Designated Event Payment with respect to such Note.  Such payment shall be paid to such Holder,
subject to receipt of consideration for the Notes by the Paying Agent, promptly
following the later of (x) the Designated Event Purchase Date with respect to
such Note (provided the conditions in Section 10.07, as the case may be, have
been satisfied) and (y) the time of delivery of such Note to the Paying Agent
by the Holder thereof in the manner required by Section 10.07, as the case may
be.  Notes in respect of which a
Designated Event Purchase Notice has been given by the Holder thereof may not
be converted on or after the date of the delivery of such Designated Event
Purchase Notice unless such Designated Event Purchase Notice has first been
validly withdrawn as specified in the following two paragraphs.


 


A
Designated Event Purchase Notice may be withdrawn by means of a written notice
of withdrawal delivered to the office of the Paying Agent in accordance with
the Designated Event Purchase Notice at any time prior to the close of business
on the Business Day immediately preceding the Designated Event Purchase Date
specifying:


 


(a)
 the certificate number, if any, of each
Note in respect of which such notice of withdrawal is being submitted;


 


(b)
 the principal amount of the Note with
respect to which such notice of withdrawal is being submitted; and


 


(c)
 the principal amount, if any, of each
such Note which remains subject to the original Designated Event Purchase
Notice and which has been or will be delivered for purchase by the Company;


 


provided, however,
that if the Notes are not in certificated form, a Holder’s notice of withdrawal
must comply with the applicable Depositary procedures.


 


There
shall be no purchase of any Notes pursuant to Section 10.06 if there has
occurred (prior to, on or after, as the case may be, the giving by the Holders
of such Notes of the required Designated Event Purchase Notice) and is
continuing an Event of Default (other than a default in the payment of the Designated
Event Payment with respect to such Notes). 
The Paying Agent will promptly return to the respective Holders thereof
any Notes (x) with respect to which a Designated Event Purchase Notice has been
withdrawn in compliance with this Indenture, or (y) held by it during the
continuance of an Event of Default (other than a default in the payment of the
Designated Event Payment with respect to such Notes) in which case, upon such
return, the Designated Event Purchase Notice with respect thereto shall be deemed
to have been withdrawn.


 


SECTION
10.09.  Deposit of Designated Event
Payment.  Prior to 11:00 a.m. (New York
City time) on the Designated Event Purchase Date, the Company shall deposit
with the Trustee or with the Paying Agent an amount of cash (in immediately
available funds if deposited on such Business Day) sufficient to pay the
aggregate Designated Event Payment of all the Notes or portions thereof which
are to be purchased as of the Designated Event Purchase Date.


 


19

















 


If
the Trustee or other Paying Agent appointed by the Company holds cash
sufficient to pay the aggregate Designated Event Payment of all the Notes or
portions thereof that are to be purchased as of the Designated Event Purchase
Date, on or after the Designated Event Purchase Date (i) such Notes will cease
to be outstanding, (ii) interest on such Notes will cease to accrue and (iii) all
other rights of the Holders of such Notes will terminate, whether or not
book-entry transfer of the Notes has been made or the Notes have been delivered
to the Trustee or Paying Agent, other than the right to receive the Designated
Event Payment upon delivery of the Notes.


 


SECTION
10.10.  Notes Purchased in Part.  Any Note which is to be purchased only in
part shall be surrendered at the office of the Paying Agent (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or such Holder’s attorney duly authorized in writing)
and the Company shall execute and the Trustee shall authenticate and deliver to
the Holder of such Note, without service charge, a new Note or Notes, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to, and in exchange for, the portion of the principal amount of
the Note so surrendered which is not purchased.


 


SECTION
10.11.  Covenant to Comply with
Securities Laws upon Purchase of Notes. 
In connection with any offer to purchase or purchase of Notes under
Section 10.06 hereof (provided that such offer or purchase constitutes an “issuer
tender offer” for purposes of Rule 13e-4 (which term, as used herein, includes
any successor provision thereto) under the Exchange Act at the time of such
offer or purchase), the Company shall (i) comply with Rule 13e-4, Rule 14e-1
and any other tender offer rules under the Exchange Act which may then be
applicable, (ii) file the related Schedule TO (or any successor schedule, form
or report) or any other schedule required under the Exchange Act, and (iii) otherwise
comply with all applicable federal and state securities laws so as to permit
the rights and obligations under Section 10.06 to be exercised in the time and
in the manner specified in Section 10.06 and 10.07.


 


SECTION
10.12.  Repayment to the Company.  The Trustee and the Paying Agent shall return
to the Company any cash or other consideration that remains unclaimed as
provided in the Notes, together with interest, if any, thereon, held by them
for the payment of the Designated Event Payment; provided, however,
that to the extent that the aggregate amount of cash deposited by the Company
pursuant to Section 10.09 exceeds the aggregate Designated Event Payment of the
Notes or portions thereof which the Company is obligated to purchase as of the
Designated Event Purchase Date then promptly after the Business Day following
the Designated Event Purchase Date the Trustee shall return any such excess to
the Company together with interest, if any, thereon.


 


SECTION
10.13.  Limitation on Liens.  The Company will not, directly or indirectly,
incur or suffer to exist any Lien (other than existing Liens) securing
Specified Indebtedness of any nature whatsoever on any of its properties or
assets, whether owned at the issue date of the Notes or thereafter acquired,
without making effective provision for securing the Notes equally and ratably
with (or, if the obligation to be secured by the 


 


20

















 


Lien
is subordinated in right of payment to the Notes, prior to) the obligations so
secured for so long as such obligations are so secured.  The Lien, if granted, to secure the Notes may
also secure obligations in addition to Specified Indebtedness.  Any Lien created to secure the Notes pursuant
to this Section 10.13 may provide by its terms that such Lien will be
automatically and unconditionally released and discharged upon the full and
unconditional release and discharge of the Lien securing the Specified
Indebtedness and that the Holders of some or all of such Specified Indebtedness
may exclusively control the disposition of property subject to such Lien.


 


The
foregoing restrictions in this Section 10.13 shall not apply to (a) Liens to
secure Acquired Debt; provided, however, that (i) such Lien
attaches to the acquired property prior to the time of the acquisition of such
property and (ii) such Lien does not extend to or cover any other property; and
(b) Liens to secure indebtedness incurred to refinance, in whole or in part,
debt secured by any Lien referred to in the foregoing clause (a) or this clause
(b) so long as such Lien does not extend to any other property (other than
improvements and accessions to the original property) and the principal amount
of indebtedness so secured is not increased.”


 


ARTICLE
VI


 


COMPANY
REPORTS


 


SECTION
6.1.  Amendments to Article Seven.  Section 7.03 of the Indenture is amended in
its entirety with respect to the Notes as follows:


 


“SECTION 7.03.  Reports by Company. Whether or not the
Company is subject to Section 13(a) or 15(d) of the Exchange Act, or any
successor provision thereto, for so long as any Notes are outstanding, the
Company will:


 


(1) file with the Trustee,
within 15 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents, and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to Section 13 or Section
15(d) of the Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such Sections of the
Exchange Act, then it will file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act in
respect of a security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and regulations;


 


(2) file with the Trustee
and the Commission, in accordance with the rules and regulations prescribed
from time to time by the Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time by such rules and
regulations; and


 


21

















 


(3) transmit by mail to the
Holders of Notes, within 30 days after the filing thereof with the Trustee, in
the manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
such summaries of any information, documents and reports required to be filed
by the Company pursuant to paragraphs (1) and (2) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.


 


The Company will be deemed
to have filed, furnished or transmitted to the Trustee or the Holders of the
Notes any reports, documents, and information filed with the Commission’s EDGAR
filing system (or any replacement system that the Commission uses for the
electronic delivery of reports) and which are publicly available.


 


ARTICLE
VII


 


OPTIONAL
REDEMPTION


 


Pursuant
to Section 3.01(6) of the Indenture, so long as any of the Notes are
Outstanding, the following provisions shall be applicable to the Notes in lieu
of the provisions of Article Eleven of the Indenture:


 


SECTION
7.1.  Company’s Right to Redeem.  Commencing after October 1, 2013, the Notes
will be subject to redemption at the option of the Company, in whole or in
part, on the terms set forth in paragraph 5 on the reverse of the form of Notes
and at the Redemption Price, plus accrued and unpaid interest (if any), to but
excluding the redemption date (the “Redemption Date”).  However, if a Redemption Date occurs after a
Regular Record Date or a Special Record Date but on or prior to the
corresponding Interest Payment Date or Defaulted Interest payment date, the
Company will instead pay the applicable interest payment to the record Holder
on the Regular Record Date or Special Record Date corresponding to such Interest
Payment Date or Defaulted Interest payment date.


 


SECTION
7.2.  Notices to Trustee. If the
Company elects to redeem Notes pursuant to the optional redemption provisions
of paragraph 5 of the Notes, it shall furnish to the Trustee, at least 30 days
but not more than 60 days before a Redemption Date (unless a shorter period
shall be satisfactory to the Trustee), an Officers’ Certificate setting forth (a)
the Section of this Indenture pursuant to which the redemption shall occur, (b)
the Redemption Date, (c) the principal amount of Notes (if less than all) to be
redeemed, (d) the Redemption Price and the amount of accrued and unpaid
interest, if any, payable on the Redemption Date and (e) the CUSIP number of
the Notes being redeemed.


 


SECTION
7.3.  Selection of Notes To Be
Redeemed. If less than all the Notes are to be redeemed, the Trustee shall
select the Notes to be redeemed by a method that complies with the requirements
of the principal national securities exchange, if any, on which the Notes are
listed or quoted or, if the Notes are not so listed, on a pro rata basis, by
lot or by any other method that the Trustee considers fair and appropriate. The
Trustee shall make the selection not more than 60 days and not less than 30
days before the Redemption Date from Notes outstanding and not previously
called for redemption. 


 


22

















 


The Trustee may select
for redemption a portion of the principal of any Notes that has a denomination
larger than $1,000. Notes and portions thereof will be redeemed in the amount
of $1,000 or integral multiples of $1,000.


 


Provisions
of this Indenture that apply to Notes called for redemption also apply to
portions of Notes called for redemption. The Trustee shall notify the Company
promptly of the Notes or portions of Notes to be called for redemption.


 


If
any Note selected for partial redemption is converted in part after such
selection, the converted portion of such Note shall be deemed (so far as
possible) to be the portion to be selected for redemption. The Notes (or
portion thereof) so selected shall be deemed duly selected for redemption for
all purposes hereof, notwithstanding that any such Note is converted in whole
or in part before the mailing of the notice of redemption. Upon any redemption
of less than all the Notes, the Company and the Trustee may treat as
outstanding any Notes surrendered for conversion during the period of 15 days
immediately preceding the mailing of a notice of redemption and need not treat
as outstanding any Note authenticated and delivered during such period in
exchange for the unconverted portion of any Note converted in part during such
period.


 


In
the event of any redemption of less than all the Notes, the Company will not be
required to (a) issue or register the transfer or exchange of any Note during a
period of 15 days immediately preceding the mailing of a notice of redemption
for such Notes for redemption, or (b) register the transfer or exchange of any
Note so selected for redemption, in whole or in part, except the unredeemed
portion of any Note being redeemed in part, in which case the Company will
execute and the Trustee will authenticate and deliver to the Holder a new Note
or Notes equal in principal amount to the unredeemed portion of the Note surrendered.


 


SECTION
7.4.  Notice of Redemption. At
least 30 days but not more than 60 days before a Redemption Date, the Company
shall mail by first class mail a notice of redemption to each Holder whose
Notes are to be redeemed, at such Holder’s registered address.


 


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


 


(1)
the Redemption Date;


 


(2)
the Redemption Price and any accrued and unpaid interest payable on the
Redemption Date;


 


(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 in the name of the Holder thereof;


 


(4)
that Notes called for redemption must be surrendered to the Paying Agent to
collect the Redemption Price and any accrued and unpaid interest;


 


23

















 


(5)
that interest on Notes called for redemption and for which funds have been set
apart for payment, ceases to accrue on and after the Redemption Date (unless
the Company defaults in the payment of the Redemption Price or any accrued and
unpaid interest);


 


(6)
the aggregate principal amount of Notes (if less than all) that are being
redeemed;


 


(7)
the CUSIP number of the Notes (provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP numbers
printed in the notice or on the Notes and that reliance may be placed only on
the other identification numbers printed on the Notes);


 


(8)
the name and address of the Paying Agent;


 


(9)
the Conversion Rate;


 


(10)
that the Notes called for redemption may be converted at any time prior to the
close of business on the last Trading Day immediately preceding the Redemption
Date and if not converted prior to the close of business on such date, the
right of conversion will be lost; and


 


(11)
that in the case of Notes or portions thereof called for redemption on a date
that is also an Interest Payment Date or a Defaulted Interest payment date, the
interest due on such date shall be paid to the Holder of such Note at the close
of business on the relevant Regular Record Date or Special Record Date.


 


The
notice, if mailed in the manner herein provided, shall be conclusively presumed
to have been given, whether or not the Holder receives such notice. In any
case, failure to give such notice by mail or any defect in the notice to any
Holder designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any Note.


 


At
the Company’s request, the Trustee shall give notice of redemption in the
Company’s name and at the Company’s expense.


 


SECTION
7.5.  Effect of Notice of Redemption.
Once notice of redemption is mailed, Notes called for redemption become due and
payable on the Redemption Date at the Redemption Price set forth in the Note.


 


SECTION
7.6.  Deposit of Redemption Price.  On or before 11:00 a.m. New York City time on
the Redemption Date, the Company shall deposit with the Trustee or with the
Paying Agent money in immediately available funds sufficient to pay the
Redemption Price of and accrued interest, if any, on all Notes to be redeemed
on that date. The Trustee or the Paying Agent shall return to the Company any
money not required for that purpose.


 


24

















 


On
and after the Redemption Date, unless the Company shall default in the payment
of the Redemption Price or any accrued and unpaid interest, interest will cease
to accrue on the principal amount of the Notes or portions thereof called for
redemption and for which funds have been set apart for payment, and such Notes,
or portions thereof, shall cease after the close of business on the Trading Day
immediately preceding the Redemption Date to be convertible into Common Stock
and, except as provided in this Section 7.6 and Article Four of the Indenture,
to be entitled to any benefit or security under the Indenture, and the Holders
thereof shall have no right in respect of such Notes, or portions thereof,
except the right to receive the Redemption Price thereof and unpaid interest to
(but excluding) the Redemption Date. In the case of Notes or portions thereof
redeemed on a Redemption Date which is after a Regular Record Date or a Special
Record Date and on or prior to the corresponding Interest Payment Date or
Defaulted Interest payment date, the interest due on such date shall be paid to
the Person in whose name the Note is registered at the close of business on the
relevant Regular Record Date or Special Record Date.


 


SECTION
7.7.  Notes Redeemed in Part. Upon
surrender of a Note that is redeemed in part only, the Company shall issue and
the Trustee shall authenticate and deliver to the Holder of such Note a new
Note or Notes equal in principal amount to the unredeemed portion of the Note
surrendered, at the expense of the Company, except as specified in Section 3.05
of the Indenture.


 


SECTION
7.8. Conversion Arrangement on Call for Redemption. In connection with
any redemption of Notes, the Company may arrange for the purchase and
conversion of any Notes by an arrangement with one or more investment bankers
or other purchasers to purchase such Notes by paying to the Trustee in trust
for the Holders, on or before the date fixed for redemption, an amount not less
than the Redemption Price, together with interest accrued to the date fixed for
redemption of such Notes. Notwithstanding anything to the contrary contained in
this Article VII, the obligation of the Company to pay the Redemption Price of
such Notes, together with interest accrued to the date fixed for redemption
shall be deemed to be satisfied and discharged to the extent such amount is so
paid by the purchasers. If such an agreement is entered into, a copy shall be
filed with the Trustee prior to the date fixed for redemption. Any Notes not
duly surrendered for conversion by the Holders thereof may, at the option of
the Company, be deemed, to the fullest extent permitted by law, acquired by
such purchasers from such Holders and (notwithstanding anything to the contrary
contained in this Article VII or in Article VIII) surrendered by such
purchasers for conversion, all as of immediately prior to the close of business
on the date fixed for redemption (and the right to convert any such Notes shall
be deemed to have been extended through such time), subject to payment of the
above amount as aforesaid. At the direction of the Company, the Trustee shall
hold and dispose of any such amount paid to it in the same manner as it would
moneys deposited with it by the Company for the redemption of Notes. Without
the Trustee’s prior written consent, no arrangement between the Company and
such purchasers for the purchase and conversion of any Notes shall increase or
otherwise affect any of the powers, duties, responsibilities or obligations of
the Trustee as set forth in this Indenture, and the Company agrees to indemnify
the Trustee from, and defend and 


 


25

















 


hold
it harmless against, any loss, liability or expense arising out of or in
connection with any such arrangement for the purchase and conversion of any
Notes between the Company and such purchasers to which the Trustee has not
consented in writing, including the costs and expenses incurred by the Trustee
in the defense of any claim or liability arising out of or in connection with
the exercise or performance of any of its powers, duties, responsibilities or
obligations under this Indenture.


 


ARTICLE
VIII


 


CONVERSION
OF SECURITIES


 


SECTION
8.1.  Applicability of Conversion
Provisions.  Pursuant to Section 3.01(24)
of the Indenture, the Notes will be convertible in accordance with the
provisions of, and pursuant to, Article Fifteen of the Indenture, as amended
hereby, and the definitive form of the Notes; provided, however,
that, prior to any conversion, any applicable governmental consents have been
received by the Company or the Holder.


 


SECTION
8.2.  Amendments to Article Fifteen.  Article Fifteen is amended and restated in
its entirety with respect to the Notes to read as follows:


 


“SECTION
15.01.  Right To Convert.  Subject to and upon compliance with the
provisions of this Indenture, each Holder of Notes shall have the right, at his
or her option, at any time on or before the close of business on the Stated
Maturity date (except that, (a) with respect to any Note or portion thereof
which is called for redemption prior to such date, such right shall terminate,
except as provided in the penultimate paragraph of Section 15.02, at the close
of business on the last Trading Day preceding the date fixed for redemption
(unless the Company defaults in payment of the Redemption Price in which case
the conversion right will terminate at the close of business on the date such
default is cured) and (b) with respect to any Note or portion thereof subject
to a duly completed election for repurchase, such right shall terminate at the
close of business on the Business Day immediately preceding the Designated
Event Purchase Date (unless the Company defaults in the payment due upon
repurchase or such Holder elects to withdraw the submission of such election to
repurchase in accordance with Section 10.08)) to convert the principal amount
of any Note held by such Holder, or any portion of such principal amount which
is $1,000 or an integral multiple thereof, into that number of fully paid and
non-assessable shares of Common Stock (as such shares shall then be
constituted) obtained by multiplying (a) the amount obtained by dividing (i) the
principal amount of the Note or portion thereof to be converted by (ii) $1,000
by (b) the Conversion Rate in effect at such time, by surrender of the Note so
to be converted in whole or in part in the manner provided in Section 15.02.  A Holder of Notes is not entitled to any
rights of a holder of Common Stock until such Holder of Notes has converted his
or her Notes to Common Stock, and then only to the extent such Notes are deemed
to have been converted to Common Stock under this Article Fifteen.


 


If
a Change in Control described in clause (b) or (c) of the definition thereof
(determined after giving effect to any exceptions or exclusions to such
definition) occurs, then the Conversion Rate per $1,000 principal amount of
Notes otherwise in 


 


26

















 


effect
in respect of Notes for which a conversion notice is received by the Conversion
Agent during the period beginning 10 Trading Days before the anticipated
Effective Date (as defined below) of the Change in Control and ending at the
close of business on the Trading Day immediately preceding the related
Designated Event Purchase Date shall be increased by the amount (the “Additional
Shares”), if any, determined by reference to the table below, based on the
Effective Date of such Change in Control and the Stock Price of such Change in
Control.  The Company will mail a notice
to Holders and issue a press release no later than 20 Business Days prior to
the anticipated Effective Date of such anticipated Change in Control.


 


The
number of Additional Shares will be determined by reference to the table below
and is based on the date on which the Change in Control becomes effective (the “Effective
Date”) and the price (the “Stock Price”) paid per share of Common
Stock in the transaction constituting the Change in Control.  If holders of the Common Stock receive only
cash in the transaction constituting the Change in Control, the Stock Price
shall be the cash amount paid per share of the Common Stock.  Otherwise, the Stock Price shall be equal to
the average of the Closing Sale Price over the five Trading Day period ending
on the Trading Day immediately preceding the Effective Date.


 


The
following table sets forth the Additional Shares, if any, issuable upon
conversion of each $1,000 principal amount of Notes in connection with such a
Change in Control for each Stock Price and Effective Date set forth below.


 


Additional Shares


 


	
   

  	
   

  	
  Effective Date

  	
   

  
	
  Stock
  Price on

  Effective Date

  	
   

  	
  September 20,

  2010

  	
   

  	
  October 1,

  2011

  	
   

  	
  October 1,

  2012

  	
   

  	
  October 1,

  2013

  	
   

  	
  October 1,

  2014

  	
   

  	
  October 1,

  2015

  	
   

  	
  October 1,

  2016

  	
   

  
	
  $

  	
  0.95

  	
   

  	
  242.9149

  	
   

  	
  242.9149

  	
   

  	
  242.9149

  	
   

  	
  242.9149

  	
   

  	
  242.9149

  	
   

  	
  242.9149

  	
   

  	
  242.9149

  	
   

  
	
  $

  	
  1.10

  	
   

  	
  204.4138

  	
   

  	
  189.9607

  	
   

  	
  175.3535

  	
   

  	
  170.1801

  	
   

  	
  168.8946

  	
   

  	
  151.4651

  	
   

  	
  99.3743

  	
   

  
	
  $

  	
  1.25

  	
   

  	
  165.8749

  	
   

  	
  148.8118

  	
   

  	
  129.1106

  	
   

  	
  115.7064

  	
   

  	
  113.0509

  	
   

  	
  95.4003

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  1.50

  	
   

  	
  123.1259

  	
   

  	
  104.8860

  	
   

  	
  81.0359

  	
   

  	
  53.7197

  	
   

  	
  51.4139

  	
   

  	
  40.2717

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  1.75

  	
   

  	
  95.8216

  	
   

  	
  78.2801

  	
   

  	
  54.2374

  	
   

  	
  14.5311

  	
   

  	
  13.1628

  	
   

  	
  9.7654

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  2.00

  	
   

  	
  77.1272

  	
   

  	
  60.2703

  	
   

  	
  37.2919

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  2.25

  	
   

  	
  64.2107

  	
   

  	
  48.8934

  	
   

  	
  28.2658

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  2.50

  	
   

  	
  54.6272

  	
   

  	
  40.8452

  	
   

  	
  22.6452

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  2.75

  	
   

  	
  47.2700

  	
   

  	
  34.9219

  	
   

  	
  18.9416

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  3.00

  	
   

  	
  41.5524

  	
   

  	
  30.4659

  	
   

  	
  16.3827

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  3.50

  	
   

  	
  33.0640

  	
   

  	
  24.1040

  	
   

  	
  12.9784

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  4.00

  	
   

  	
  27.0441

  	
   

  	
  19.7154

  	
   

  	
  10.7101

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  4.50

  	
   

  	
  22.5249

  	
   

  	
  16.4659

  	
   

  	
  9.0346

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  5.00

  	
   

  	
  19.0222

  	
   

  	
  13.9449

  	
   

  	
  7.7225

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  



 


If
actual Stock Prices on the Effective Date are not set forth in the table above
and:


 


(i)  if the
actual Stock Price on the Effective Date is between two Stock Prices in the
table or the actual Effective Date is between two Effective Dates in the table,
the number of Additional Shares will be determined by a straight-line
interpolation between the adjustment amounts set forth for such 


 


27

















 


two
Stock Prices or such two Effective Dates on the table based on a 360-day year,
as applicable;


 


(ii)  if the
Stock Price on the Effective Date is greater than $5.00 per share (subject to
adjustment as described below), no Additional Shares will be issued upon
conversion; and


 


(iii)  if the
Stock Price on the Effective Date is less than $0.95 per share (subject to
adjustment as described below), no Additional Shares will be issued upon
conversion.


 


The
Stock Prices set forth in the first column of the table above will be adjusted
as of any date on which the Conversion Rate is adjusted.  The adjusted Stock Prices will equal the
Stock Prices applicable immediately prior to such adjustment multiplied by a
fraction, the numerator of which is the Conversion Rate immediately prior to
the adjustment giving rise to the Stock Price adjustment and the denominator of
which is the Conversion Rate as so adjusted. 
The number of Additional Shares set forth in the table above will be
adjusted in the same manner as the Conversion Rate as set forth in Section 15.05
hereof.


 


Notwithstanding
the foregoing, in no event will the Conversion Rate exceed 1052.6315 shares of
Common Stock per $1,000 principal amount of Notes, subject to adjustment in the
manner set forth in Section 15.05 hereof.


 


SECTION
15.02.  Exercise of Conversion
Privilege; Issuance of Common Stock on Conversion; No Adjustment for Interest
or Dividends.  To exercise, in whole
or in part, the conversion privilege with respect to any Note, the Holder of
such Note shall surrender such Note, duly endorsed, at an office or agency
maintained by the Company pursuant to Section 10.02, accompanied by the funds,
if any, required by the last paragraph of this Section 15.02, and shall give
written notice of conversion in the form provided on the Notes (or such other
notice which is acceptable to the Company) to such office or agency that the
Holder of Notes elects to convert such Note or such portion thereof specified
in said notice.  Such notice shall also
state the name or names (with address or addresses) in which the shares of
Common Stock which are issuable on such conversion shall be issued, and shall
be accompanied by transfer taxes, if required pursuant to Section 15.07.  If the Notes are not in certificated form,
the Holders may exercise their right of conversion by complying with the
applicable Depositary procedures.  Each
such Note surrendered for conversion shall, unless the shares issuable on
conversion are to be issued in the same name as the registration of such Note,
be duly endorsed by, or be accompanied by instruments of transfer in form
satisfactory to the Company duly executed by, the Holder of Notes or his or her
duly authorized attorney.  The Holder of
such Notes will not be required to pay any tax or duty which may be payable in
respect of the issue or delivery of Common Stock on conversion, but will be
required to pay any tax or duty which may be payable in respect of any transfer
involved in the issue or delivery of Common Stock in a name other than the same
name as the registration of such Note.


 


28
















 


As
promptly as practicable after satisfaction of the requirements for conversion
set forth above, the Company shall issue the number of full shares of Common
Stock (including any full shares as a result of rounding fractional shares up
to a full number of shares pursuant to Section 15.03) issuable upon the
conversion of such Note or portion thereof in accordance with the provisions of
this Article Fifteen and a check or cash (which payment, if any, shall be
paid no later than three Business Days after satisfaction of the requirements
for conversion set forth above) in respect of any fractional interest in
respect of a share of Common Stock, pursuant to Section 15.03.  Shares of Common Stock will not be issued or delivered
unless all taxes and duties, if any, payable by the Holder have been paid.  In case any Note of a denomination of an
integral multiple greater than $1,000 is surrendered for partial conversion,
and subject to Section 3.03, the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of the Note so surrendered,
without charge to him or her, a new Note or Notes in authorized denominations
in an aggregate principal amount equal to the unconverted portion of the
surrendered Note.


 


Each
conversion shall be deemed to have been effected as to any such Note (or
portion thereof) on the date (the “Conversion Date”) on which the
requirements set forth in this Section 15.02 have been satisfied as to
such Note (or portion thereof), and the Person in whose name any shares of Common
Stock are issuable upon such conversion shall be deemed to have become on said
date the holder of record of the shares represented thereby; provided, however,
that any such surrender on any date when the Company’s stock transfer books are
closed shall constitute the Person in whose name the shares are to be issued as
the record holder thereof for all purposes on the next succeeding day on which
such stock transfer books are open, but such conversion shall be at the
Conversion Price in effect on the date upon which such Note is surrendered.


 


Any
Note or portion thereof surrendered for conversion during the period from the
close of business on the Regular Record Date for any interest payment through
the close of business on the last Trading Day immediately preceding the
corresponding Interest Payment Date shall (unless (i) the Company has
specified a Designated Event Purchase Date during such period, (ii) such
Note or portion thereof being converted has been called for redemption on a
date during the period from the close of business on such Regular Record Date
to the close of business on the last Trading Day immediately preceding the
corresponding Interest Payment Date pursuant to a notice of redemption mailed
by the Company to the Holders in accordance with the provisions of Section 7.4
of the Third Supplemental Indenture or (iii) such Note or portion thereof
being converted is surrendered for conversion after the close of business on
the Regular Record Date immediately preceding the Stated Maturity of the Notes)
be accompanied by payment, in funds acceptable to the Company, of an amount
equal to the interest otherwise payable on such Interest Payment Date on the
principal amount being converted; provided, however, that such
payment may be reduced by the amount of any existing payment default in respect
of such Note.  An amount equal to such
payment shall be paid by the Company on such Interest Payment Date to the
Holder of such Note at the close of business on such Regular Record Date.  Except as provided above in this Section 15.02,
no adjustment shall be made for interest accrued on any Note converted or for
dividends on any shares 


 


29

















 


issued
upon the conversion of such Note as provided in this Article Fifteen.  If any Note or portion thereof that has been
called for redemption on a date during the period from the close of business on
a Regular Record Date to the close of business on the last Trading Day
immediately preceding the corresponding Interest Payment Date is converted
after such Regular Record Date for the payment of interest and prior to such
corresponding Interest Payment Date, interest payable on such Interest Payment
Date shall be payable notwithstanding such conversion, and such interest shall
be paid to the Holder of such Note on the applicable Regular Record Date.


 


SECTION 15.03.  Cash Payments in Lieu of Fractional
Shares.  If more than one Note shall
be surrendered for conversion at one time by the same Holder, the number of
full shares which shall be issuable upon conversion shall be computed on the
basis of the aggregate principal amount of the Notes (or specified portions
thereof to the extent permitted hereby) so surrendered for conversion.  In respect of any fractional share of stock that
otherwise would be issuable upon the conversion of any Note or Notes, the
Company shall make an adjustment therefor in cash based upon the current market
price thereof or the Company shall, at its option, round such fraction up to
the nearest whole number of shares for issuance upon conversion.  For purposes of this Section 15.03, the “current
market price” of a share of Common Stock shall be the Closing Sale Price on the
last Trading Day immediately preceding the day on which the Notes (or specified
portions thereof) are deemed to have been converted.


 


SECTION 15.04.  Conversion Rate.  Each $1,000 principal amount of the Notes
shall be convertible into the number of shares of Common Stock (the “Conversion
Rate”) specified in the form of Note attached as Exhibit A
hereto, subject to adjustment as provided in this Article Fifteen.


 


SECTION 15.05.  Adjustment of the Conversion Rate.  The Conversion Rate shall be adjusted from
time to time by the Company as follows:


 


(a)  In case the Company shall hereafter pay a dividend or make a
distribution to all holders of the outstanding Common Stock in shares of Common
Stock, the Conversion Rate shall be increased so that the same shall equal the
rate determined by multiplying the Conversion Rate in effect at the opening of
business on the date following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution by a
fraction,


 


(i)  the numerator of which shall be the sum of
the number of shares of Common Stock outstanding at the close of business on
the date fixed for the determination of stockholders entitled to receive such
dividend or other distribution plus the total number of shares of Common Stock
constituting such dividend or other distribution; and


 


(ii)  the denominator of which shall be the
number of shares of Common Stock outstanding at the close of business on the
date fixed for such determination,


 


30

















 


such
increase to become effective immediately after the opening of business on the
day following the date fixed for such determination.  For the purpose of this paragraph (a), the
number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company. 
The Company will not pay any dividend or make any distribution on shares
of Common Stock held in the treasury of the Company.  If any dividend or distribution of the type
described in this Section 15.05 is declared but not so paid or made, the
Conversion Rate shall again be adjusted to the Conversion Rate that would then
be in effect if such dividend or distribution had not been declared.


 


(b)  In case the Company shall issue rights or warrants to all
holders of its outstanding shares of Common Stock entitling them to subscribe
for or purchase shares of Common Stock at a price per share less than the
Current Market Price on the date fixed for determination of stockholders
entitled to receive such rights or warrants, the Conversion Rate shall be
increased so that the same shall equal the rate determined by multiplying the
Conversion Rate in effect immediately prior to the date fixed for determination
of stockholders entitled to receive such rights or warrants by a fraction,


 


(i)  the numerator of which shall be the number
of shares of Common Stock outstanding on the date fixed for determination of
stockholders entitled to receive such rights or warrants plus the total number
of additional shares of Common Stock offered for subscription or purchase, and


 


(ii)  the denominator of which shall be the sum
of the number of shares of Common Stock outstanding at the close of business on
the date fixed for determination of stockholders entitled to receive such
rights or warrants plus the number of shares that the aggregate offering price
of the total number of shares so offered would purchase at such Current Market
Price.


 


Such adjustment shall be successively made whenever any such rights or
warrants are issued, and shall become effective immediately after the opening
of business on the day following the date fixed for determination of
stockholders entitled to receive such rights or warrants.  To the extent that shares of Common Stock are
not delivered after the expiration of such rights or warrants, the Conversion
Rate shall be readjusted to the Conversion Rate that would then be in effect
had the adjustments made upon the issuance of such rights or warrants been made
on the basis of delivery of only the number of shares of Common Stock actually
delivered.  If such rights or warrants are
not so issued, the Conversion Rate shall again be adjusted to be the Conversion
Rate that would then be in effect if such date fixed for the determination of
stockholders entitled to receive such rights or warrants had not been fixed.  In determining whether any rights or warrants
entitle the holders to subscribe for or purchase shares of Common Stock at less
than such Current Market Price, and in determining the aggregate offering price
of such shares of Common Stock, there shall be taken into account any
consideration received by the Company for such rights or warrants and any 


 


31

















 


amount
payable on exercise or conversion thereof, the value of such consideration, if
other than cash, to be determined by the Board of Directors.


 


(c)  In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the Conversion Rate
in effect at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately increased, and
conversely, in case outstanding shares of Common Stock shall be combined into a
smaller number of shares of Common Stock, the Conversion Rate in effect at the
opening of business on the day following the day upon which such combination
becomes effective shall be proportionately reduced, such increase or reduction,
as the case may be, to become effective immediately after the opening of
business on the day following the day upon which such subdivision or
combination becomes effective.


 


(d)  In case the Company shall pay a cash dividend to all holders
of its Common Stock or, by dividend or otherwise, distribute to all holders of
its Common Stock shares of any class of Capital Stock of the Company or evidences
of its indebtedness or assets, including cash and securities (any such
distribution, a “Distribution”; provided, however, that
the term “Distribution” shall not include, and this Section 15.05(d) shall
not apply to, (x) any rights or warrants referred to in Section 15.05(b) and
(y) any dividend or distribution referred to in Section 15.05(a)),
then, in each such case (unless the Company elects to reserve such Distribution
for distribution to the Holders upon the conversion of the Notes so that any
such Holder converting Notes will receive upon such conversion, in addition to
the shares of Common Stock to which such Holder is entitled, the amount and
kind of such Distribution which such Holder would have received if such Holder
had converted its Notes into Common Stock immediately prior to the Record
Date), the Conversion Rate shall be increased so that the same shall be equal
to the rate determined by multiplying the Conversion Rate in effect on the
Record Date with respect to such distribution by a fraction,


 


(i)  the numerator of which shall be the
Current Market Price on such Record Date; and


 


(ii)  the denominator of which shall be the
Current Market Price on such Record Date less (A) in the case of
Distributions other than cash, the Fair Market Value (as determined by the
Board of Directors, whose determination shall be conclusive, and described in a
resolution of the Board of Directors) on the Record Date of the portion of such
Distributions applicable to one share of Common Stock and (B) in the case of
Distributions of cash, the amount of such Distributions applicable to one share
of Common Stock,


 


such
adjustment to become effective immediately prior to the opening of business on
the day following such Record Date; provided, however, that if
the then Fair Market Value (as so determined) of the portion of the
Distribution so distributed applicable to one share of Common Stock is equal to
or greater than the Current 


 


32

















 


Market
Price on the Record Date, in lieu of the foregoing adjustment, adequate
provision shall be made so that each Holder shall have the right to receive
upon conversion the amount of Distribution such Holder would have received had
such Holder converted each Note on the Record Date.  If such Distribution is not so paid or made,
the Conversion Rate shall again be adjusted to be the Conversion Rate that
would then be in effect if such Distribution had not been declared.  If the Board of Directors determines the Fair
Market Value of any distribution for purposes of this Section 15.05 by
reference to the actual or when issued trading market for any securities, it
must in doing so consider the prices in such market over the same period used
in computing the Current Market Price on the applicable Record Date.  Notwithstanding the foregoing, if the
Distribution distributed by the Company to all holders of its Common Stock
consists of Capital Stock of, or similar equity interests in, a Subsidiary or
other business unit, the Conversion Rate shall be increased so that the same
shall be equal to the rate determined by multiplying the Conversion Rate in
effect on the Record Date with respect to such distribution by a fraction:


 


(i)  the numerator of which shall be the sum of
(x) the average Closing Sale Price of one share of Common Stock over the
ten consecutive Trading Day period (the “Spinoff Valuation Period”) commencing
on and including the fifth Trading Day after the date on which “ex-dividend
trading” commences on the Common Stock on the Nasdaq Global Select Market or
such other national or regional exchange or market on which the Common Stock is
then listed or quoted and (y) the average Fair Market Value (as determined
by the Board of Directors, whose determination shall be conclusive, and
described in a resolution of the Board of Directors) over the Spinoff Valuation
Period of the portion of the Distribution so distributed applicable to one
share of Common Stock; and


 


(ii)  the denominator of which shall be the
average Closing Sale Price of one share of Common Stock over the Spinoff
Valuation Period,


 


such
adjustment to become effective immediately prior to the opening of business on
the day following such Record Date;  provided,
however, that the Company may in lieu of the foregoing adjustment make adequate
provision so that each Holder shall have the right to receive upon conversion
the amount of Distribution such Holder would have received had such Holder
converted each Note on the Record Date with respect to such Distribution.


 


Rights or warrants distributed by the Company to all holders of Common
Stock entitling the holders thereof to subscribe for or purchase shares of the
Company’s Capital Stock (either initially or under certain circumstances),
which rights or warrants, until the occurrence of a specified event or events (“Trigger
Event”): (i) are deemed to be transferred with such shares of Common
Stock; (ii) are not exercisable; and (iii) are also issued in respect
of future issuances of Common Stock, shall be deemed not to have been distributed
for purposes of this Section 15.05 (and no adjustment to the Conversion
Rate under this Section 15.05 


 


33

















 


will
be required) until the occurrence of the earliest Trigger Event, whereupon such
rights and warrants shall be deemed to have been distributed and an appropriate
adjustment (if any is required) to the Conversion Rate shall be made under this
Section 15.05.  If any such right or
warrant, including any such existing rights or warrants distributed prior to
the date of this Indenture, are subject to events, upon the occurrence of which
such rights or warrants become exercisable to purchase different securities,
evidences of indebtedness or other assets, then the date of the occurrence of
any and each such event shall be deemed to be the date of distribution and
record date with respect to new rights or warrants with such rights (and a
termination or expiration of the existing rights or warrants without exercise
by any of the holders thereof).  In
addition, in the event of any distribution (or deemed distribution) of rights
or warrants, or any Trigger Event or other event (of the type described in the
preceding sentence) with respect thereto that was counted for purposes of
calculating a distribution amount for which an adjustment to the Conversion
Rate under this Section 15.05 was made, (1) in the case of any such
rights or warrants that shall all have been redeemed or repurchased without
exercise by any holders thereof, the Conversion Rate shall be readjusted upon
such final redemption or repurchase to give effect to such distribution or
Trigger Event, as the case may be, as though it were a cash distribution, equal
to the per share redemption or repurchase price received by a holder or holders
of Common Stock with respect to such rights or warrants (assuming such holder
had retained such rights or warrants), made to all holders of Common Stock as
of the date of such redemption or repurchase, and (2) in the case of such
rights or warrants that shall have expired or been terminated without exercise
by any holders thereof, the Conversion Rate shall be readjusted as if such
rights and warrants had not been issued.


 


No adjustment of the Conversion Rate shall be made pursuant to this
Section 15.05 in respect of rights or warrants distributed or deemed
distributed on any Trigger Event to the extent that such rights or warrants are
actually distributed, or reserved by the Company for distribution to Holders of
Notes upon conversion by such Holders of Notes to Common Stock.


 


For purposes of this Section 15.05(d) and 15.05(a) and
(b), any dividend or distribution to which this Section 15.05(d) is
applicable that also includes shares of Common Stock, or rights or warrants to
subscribe for or purchase shares of Common Stock (or both), shall be deemed
instead to be (1) a dividend or distribution of the evidences of
indebtedness, assets or shares of Capital Stock other than such shares of
Common Stock or rights or warrants (and any Conversion Rate adjustment required
by this Section 15.05 with respect to such dividend or distribution shall
then be made) immediately followed by (2) a dividend or distribution of
such shares of Common Stock or such rights or warrants (and any further
Conversion Rate adjustment required by Sections 15.05(a) and (b) with
respect to such dividend or distribution shall then be made), except


 


34

















 


(A)  the Record Date of such dividend or
distribution shall be substituted as “the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution”, “the
date fixed for the determination of stockholders entitled to receive such
rights or warrants” and “the date fixed for such determination” within the
meaning of Section 15.05(a) and (b) and


 


(B)  any shares of Common Stock included in
such dividend or distribution shall not be deemed “outstanding at the close of
business on the date fixed for such determination” within the meaning of Section 15.05(a).


 


(e)  In case a tender or exchange offer made by the Company or any
Subsidiary for all or any portion of the Common Stock shall expire and such
tender or exchange offer (as amended upon the expiration thereof) shall require
the payment to tendering or exchanging stockholders of consideration per share
of Common Stock having a Fair Market Value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors) that as of the last time (the “Expiration
Time”) tenders or exchanges may be made pursuant to such tender or exchange
offer (as it may be amended) exceeds the Closing Sale Price of a share of
Common Stock on the Trading Day next succeeding the Expiration Time, the
Conversion Rate shall be increased so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect immediately prior to
the Expiration Time by a fraction,


 


(i)  the numerator of which shall be the sum of
(x) the Fair Market Value (determined as aforesaid) of the aggregate
consideration payable to tendering or exchanging stockholders based on the
acceptance (up to any maximum specified in the terms of the tender or exchange
offer) of all shares validly tendered or exchanged and not withdrawn as of the
Expiration Time (the shares deemed so accepted up to any such maximum, being
referred to as the “Purchased Shares”) and (y) the product of the
number of shares of Common Stock outstanding (less any Purchased Shares) at the
Expiration Time and the Closing Sale Price of a share of Common Stock on the
Trading Day next succeeding the Expiration Time, and


 


(ii)  the denominator of which shall be the
number of shares of Common Stock outstanding (including any tendered or
exchanged shares) at the Expiration Time multiplied by the Closing Sale Price
of a share of Common Stock on the Trading Day next succeeding the Expiration
Time


 


such
adjustment to become effective immediately prior to the opening of business on
the day following the Expiration Time. 
If the Company is obligated to purchase shares pursuant to any such
tender or exchange offer, but the Company is permanently prevented by
applicable law from effecting any such purchases or all such purchases are
rescinded, the Conversion Rate shall again be adjusted to be the Conversion
Rate that would then be in effect if such tender or exchange offer had not been
made.


 


35

















 


(f)  For purposes of this Section 15.05, the following terms
shall have the meaning indicated:


 


(1)  “Current Market Price” shall mean,
with respect to any date, the average of the daily Closing Sale Prices per
share of Common Stock for the 10 consecutive Trading Days immediately preceding
the earlier of such date of determination and the Trading Day before the “ex”
date with respect to the issuance, distribution, subdivision or combination
requiring such computation immediately prior to the date in question.  For purpose of this paragraph, the term “ex”
date, (1) when used with respect to any issuance or distribution, means
the first date on which the Common Stock trades, regular way, on the relevant
exchange or in the relevant market from which the Closing Sale Price was
obtained without the right to receive such issuance or distribution, and
(2) when used with respect to any subdivision or combination of shares of
Common Stock, means the first date on which the Common Stock trades, regular
way, on such exchange or in such market after the time at which such
subdivision or combination becomes effective.


 


If
another issuance, distribution, subdivision or combination to which this Section 15.05
applies occurs during the period applicable for calculating “Current Market
Price” pursuant to the definition in the preceding paragraph, “Current
Market Price” shall be calculated for such period in a manner determined by
the Board of Directors to reflect the impact of such issuance, distribution,
subdivision or combination on the Closing Sale Price of the Common Stock during
such period.


 


(2)  “Fair Market Value” shall mean the amount
which a willing buyer would pay a willing seller in an arm’s-length
transaction.


 


(3)  “Record Date” shall mean, with
respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the
right to receive any cash, securities or other property or in which the Common
Stock (or other applicable security) is exchanged for or converted into any
combination of cash, securities or other property, the date fixed for
determination of stockholders entitled to receive such cash, securities or
other property (whether such date is fixed by the Board of Directors or by
statute, contract or otherwise).


 


(g)  The Company may make such increases in the Conversion Rate,
in addition to those required by Section 15.05(a), (b), (c), (d) or (e) as
the Board of Directors considers to be advisable to avoid or diminish any
income tax to holders of Common Stock or rights to purchase Common Stock
resulting from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for income tax purposes.


 


To the extent permitted by applicable law, the Company from time to
time may increase the Conversion Rate by any amount for any period of time if
the 


 


36

















 


period
is at least twenty (20) days, the increase is irrevocable during the period and
the Board of Directors shall have made a determination that such increase would
be in the best interests of the Company, which determination shall be
conclusive.  Whenever the Conversion Rate
is increased pursuant to the preceding sentence, the Company shall mail to
Holders of record of the Notes a notice of the increase at least fifteen (15)
days prior to the date the increased Conversion Rate takes effect, and such notice
shall state the increased Conversion Rate and the period during which it will
be in effect.


 


(h)  No adjustment in the Conversion Rate shall be required unless
such adjustment would require an increase or decrease of at least one percent
(1%) in such rate; provided, however, that any adjustments that
by reason of this Article Fifteen are not required to be made shall be
carried forward and made (i) as part of any subsequent adjustment, (ii) with
respect to any Note (or portion thereof) that is converted, on the Conversion
Date with respect to such Note (or portion thereof), (iii) at the time the
Company mails a notice of redemption pursuant to Section 7.4 or
(iv) at the time the Company mails a notice of a Designated Event pursuant
to Section 10.06(b).  All
calculations under this Article Fifteen shall be made by the Company and
shall be made to the nearest cent or to the nearest one-ten thousandth
(1/10,000) of a share, as the case may be. 
No adjustment need be made for rights to purchase Common Stock pursuant
to a Company plan for reinvestment of dividends or interest.  To the extent the Notes become convertible
into cash, assets, property or securities (other than capital stock), no
adjustment need be made thereafter as to the cash, assets, property or such
securities.  Interest will not accrue on
any cash into which the Notes are convertible. 
The Conversion Rate shall be adjusted only once for a single event or
occurrence that would require an adjustment under more than one of Section 15.05(a),
(b), (c), (d) or (e).


 


(i)  Whenever the Conversion Rate is adjusted as herein provided,
the Company shall promptly file with the Trustee and any Conversion Agent other
than the Trustee an Officers’ Certificate setting forth the Conversion Rate
after such adjustment and setting forth a brief statement of the facts
requiring such adjustment.  Unless and
until a Responsible Officer of the Trustee shall have received such Officers’
Certificate, the Trustee shall not be deemed to have actual knowledge of any
adjustment of the Conversion Rate and may assume that the last Conversion Rate
of which it has knowledge is still in effect. 
Promptly after delivery of such certificate, the Company shall prepare a
notice of such adjustment of the Conversion Rate setting forth the adjusted
Conversion Rate and the date on which each adjustment becomes effective and
shall mail such notice of such adjustment of the Conversion Rate to the Holder
of each Note, within twenty (20) days after execution thereof.  Failure to deliver such notice shall not
affect the legality or validity of any such adjustment.


 


(j)  In any case in which this Section 15.05 provides that an
adjustment shall become effective immediately after (1) a record date or
Record Date for an event, (2) the date fixed for the determination of
stockholders entitled to receive a 


 


37

















 


dividend
or distribution pursuant to Section 15.05(a), (3) a date fixed for
the determination of stockholders entitled to receive rights or warrants
pursuant to Section 15.05(b), or (4) the Expiration Time for any
tender or exchange offer pursuant to Section 15.05, (each a “Determination
Date”), the Company may elect to defer until the occurrence of the
applicable Adjustment Event (as hereinafter defined) (x) issuing to the
Holder of any Note converted after such Determination Date and before the
occurrence of such Adjustment Event, the additional shares of Common Stock or
other consideration issuable upon such conversion by reason of the adjustment required
by such Adjustment Event over and above the Common Stock issuable upon such
conversion before giving effect to such adjustment and (y) paying to such
Holder any amount in cash in lieu of any fractional share pursuant to Section 15.03.  For purposes of this Section 15.05(j),
the term “Adjustment Event” shall mean:


 


(i)  in any case referred to in clause (1) hereof,
the occurrence of such event,


 


(ii)  in any case referred to in clause (2) hereof,
the date any such dividend or distribution is paid or made,


 


(ii)  in any case referred to in clause (3) hereof,
the date of expiration of such rights or warrants, and


 


(iv)  in any case referred to in clause (4) hereof,
the date a sale or exchange of Common Stock pursuant to such tender or exchange
offer is consummated and becomes irrevocable.


 


(k)  For purposes of this Section 15.05, the number of shares
of Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock.  The Company will not pay any dividend or make
any distribution on shares of Common Stock held in the treasury of the Company.


 


SECTION 15.06.  Effect of
Reclassification, Consolidation, Merger or Sale.  If any of the following events occur (each, a
“Business Combination”): (i) any reclassification or change of the
outstanding shares of Common Stock (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a result of
a subdivision or combination), (ii) any consolidation, merger, share
exchange or combination of the Company with another Person or (iii) any
sale or conveyance of all or substantially all of the properties and assets of
the Company as an entirety or substantially as an entirety, in each case as a
result of which holders of Common Stock shall receive stock, securities or
other property or assets (including cash) with respect to or in exchange for
such Common Stock, then the Company or the successor or purchasing Person, as
the case may be, shall execute with the Trustee a supplemental indenture (which
shall comply with the TIA as in force at the date of execution of such
supplemental indenture if such supplemental indenture is then required 


 


38

















 


to
so comply) providing that the Holders of the Notes then outstanding will be
entitled thereafter to convert such Notes into the kind and amount of shares of
stock, other securities or other property or assets (including cash or any
combination thereof) which they would have owned or been entitled to receive
upon such Business Combination had such Notes been converted into Common Stock
(without giving effect to any adjustment to the Conversion Rate with respect to
a Business Combination constituting a Change in Control) immediately prior to
such Business Combination, except that such Holders will not receive the
Additional Shares if such Holder does not convert during the period set forth in
the second paragraph of Section 15.01. 
In the event holders of Common Stock have the opportunity to elect the
form of consideration to be received in such Business Combination, the Company
shall make adequate provision whereby the Notes shall be convertible from and
after the effective date of such Business Combination into the weighted average
of the types and amounts of such consideration received in such Business
Combination by Holders of Common Stock who affirmatively made an election with
respect to the form of consideration. 
The Company may not become a party to any Business Combination unless
its terms are consistent with this Section 15.06.  Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article Fifteen.  If, in the case of any such Business
Combination, the stock or other securities and assets receivable thereupon by a
holder of shares of Common Stock includes shares of stock or other securities
and assets of a Person other than the successor or purchasing Person, as the
case may be, in such Business Combination, then such supplemental indenture
shall also be executed by such other Person and shall contain such additional
provisions to protect the interests of the Holders of the Notes as the Board of
Directors shall reasonably consider necessary by reason of the foregoing,
including to the extent practicable the provisions providing for the purchase
rights set forth in Section 10.06 hereof.  Notwithstanding anything
contained in this Section, and for the avoidance of doubt, this
Section shall not affect the right of a Holder to convert its Notes into
shares of Common Stock prior to the effective date of the Business Combination.


 


The
Company shall cause notice of the execution of such supplemental indenture to
be mailed to each Holder of Notes within 20 days after execution thereof.  Failure to deliver such notice shall not
affect the legality or validity of such supplemental indenture.


 


The
above provisions of this Section 15.06 shall similarly apply to successive
reclassifications, changes, consolidations, mergers, share exchanges,
combinations, sales and conveyances.


 


If
this Section 15.06 applies to any event or occurrence, Section 15.05
shall not apply.


 


SECTION 15.07.  Taxes on Shares Issued.  The issue of shares on conversions of Notes
shall be made without charge to the converting Holder for any tax in respect of
the issue thereof.  The Company shall
not, however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of stock in any name other than
that of the Holder of any Note converted, and the Company


 


39
















 


shall
not be required to issue or deliver any such shares unless and until the Person
or Persons requesting the issue thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.


 


SECTION 15.08.  Reservation of Shares; Shares to Be Fully
Paid; Listing of Common Stock.  The
Company shall provide, free from preemptive rights, out of its authorized but
unissued shares or shares held in treasury, sufficient shares of Common Stock
to provide for the conversion of the Notes from time to time as such Notes are
presented for conversion.  Before taking
any action which would cause an adjustment increasing the Conversion Rate to an
amount that would cause the Conversion Price to be reduced below the then par
value, if any, of the shares of Common Stock issuable upon conversion of the
Notes, the Company shall take all corporate action which may, in the opinion of
its counsel, be necessary in order that the Company may validly and legally
issue shares of such Common Stock at such adjusted Conversion Rate.


 


The
Company covenants that all shares of Common Stock issued upon conversion of
Notes will be fully paid and nonassessable by the Company and free from all
taxes, liens and charges with respect to the issue thereof.


 


The
Company further covenants that as long as the Common Stock is approved for
trading on the Nasdaq Global Select Market, or its successor, the Company shall
cause all Common Stock issuable upon conversion of the Notes to be eligible for
such quotation in accordance with, and at the times required under, the
requirements of such market, and if at any time the Common Stock becomes listed
on the New York Stock Exchange or any other national securities exchange, the
Company shall cause all Common Stock issuable upon conversion of the Notes to
be so listed and remain listed.


 


SECTION 15.09.  Responsibility of Trustee.  The Trustee and any Conversion Agent shall
have no duty, responsibility or liability to any Holder to determine whether
any facts exist which may require any adjustment of the Conversion Rate, or
with respect to the nature or extent of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. 
Neither the Trustee nor any Conversion Agent shall be accountable with
respect to the registration under securities laws, listing, validity or value
(or the kind or amount) of any shares of Common Stock, or of any other securities
or property, which may at any time be issued or delivered upon the conversion
of any Note, and neither the Trustee nor any Conversion Agent makes any
representation with respect thereto. 
Neither the Trustee nor any Conversion Agent shall be responsible for
any failure of the Company to make any cash payment or to issue, transfer or
deliver any shares of stock or stock certificates or other securities or
property upon the surrender of any Note for the purpose of conversion; and the
Trustee and any Conversion Agent shall not be responsible for any failure of
the Company to comply with any of the covenants of the Company contained in
this Article Fifteen.


 


SECTION 15.10.  Notice to Holders Prior to Certain
Actions.  If:


 


40

















 


(a) 
the Company declares a dividend (or any other distribution) on its Common Stock
(other than in cash out of retained earnings);


 


(b) 
the Company authorizes the granting to the holders of its Common Stock of
rights or warrants to subscribe for or purchase any share of any class of
Common Stock or any other rights or warrants (other than rights or warrants
referred to in the second paragraph of Section 15.05(d));


 


(c) 
there is any reclassification of the Common Stock (other than a subdivision or
combination of outstanding Common Stock, or a change in par value, or from par
value to no par value, or from no par value to par value), or of any
consolidation, merger or share exchange to which the Company is a party, or of
the sale or transfer of all or substantially all of the assets of the Company;
or


 


(d) 
there is any voluntary or involuntary dissolution, liquidation or winding-up of
the Company;


 


then
the Company shall cause to be filed with the Trustee and at the office or agency
maintained for the purpose of conversion of the Notes pursuant to Section 10.02,
and shall caused to be mailed to each Holder of Notes, at their last addresses
as they shall appear on the Security Register of the Company as promptly as
possible but in any event at least 10 days prior to the applicable date
hereinafter specified, a notice stating (x) the date on which a record is
to be taken for the purpose of such dividend or distribution of rights or
warrants, or, if a record is not to be taken, the date as of which the holders
of Common Stock of record to be entitled to such dividend or distribution are
to be determined or (y) the date on which such reclassification,
consolidation, merger, share exchange, sale, transfer, dissolution, liquidation
or winding-up is expected to become effective or occur, and the date as of
which it is expected that holders of Common Stock of record shall be entitled
to exchange their Common Stock for securities or other property deliverable
upon such reclassification, consolidation, merger, share exchange, sale,
transfer, dissolution, liquidation or winding-up.  Failure to give such notice, or any defect
therein, shall not affect the legality or validity of such dividend,
distribution, reclassification, consolidation, merger, share exchange, sale,
transfer, dissolution, liquidation or winding-up.  The Company shall also disseminate a press
release through Dow Jones & Company Inc., Bloomberg Business News, PR
Newswire or another comparable news service containing this information.


 


SECTION 15.11.  Rights Issued in Respect of Common Stock
Issued Upon Conversion.  If the
Company has a stockholder rights plan in effect on any Conversion Date, the
Company shall issue, in addition to the Common Stock, the rights under the
rights plan unless the rights have separated from the Common Stock at the time
of conversion, in which case the Conversion Rate will be adjusted as if the
Company had distributed to all holders of the Common Stock, shares of the
Capital Stock, evidences of indebtedness or assets as set forth in Section 15.05,
subject to readjustment in the event of the expiration, termination or
redemption of such rights.”


 


41

















 


ARTICLE IX


 


MISCELLANEOUS


 


SECTION 9.1.  Application of Third Supplemental
Indenture.  Each and every term and
condition contained in this Third Supplemental Indenture that modifies, amends
or supplements the terms and conditions of the Indenture shall apply only to
the Notes created hereby and not to any future series of Securities established
under the Indenture.


 


SECTION 9.2.  Benefits of Third Supplemental Indenture.  Nothing contained in this Third Supplemental
Indenture shall or shall be construed to confer upon any Person other than a
Holder of the Notes, the Company or 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 or this Third Supplemental Indenture.


 


SECTION 9.3.  Effective Date.  This Third Supplemental Indenture shall be
effective as of the date first above written and upon the execution and
delivery hereof by each of the parties hereto.


 


SECTION 9.4.  Governing Law.  This Third Supplemental Indenture shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to conflicts of laws principles thereof.


 


SECTION 9.5.  Counterparts.  This Third Supplemental Indenture may be
executed in any number of counterparts, 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.


 


SECTION 9.6.  Trustee Not Responsible for Recitals or
Issuance of Securities.  The recitals
contained herein and in the Notes, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Company and the Trustee
assumes no responsibility for their correctness.  The Trustee makes no representations as to
the validity or sufficiency of this Third Supplemental Indenture or of the
Notes.  The Trustee shall not be
accountable for the use or application by the Company of Notes or the proceeds
thereof.


 


42

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Third Supplemental
Indenture 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/
  Robin E. Grey

  
	
   

  	
   

  	
  Name:
  Robin E. Grey

  
	
   

  	
   

  	
  Title:
  Senior Vice President and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE
  BANK OF NEW YORK MELLON, as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Laurence J. O’Brien

  
	
   

  	
   

  	
  Name:
  Laurence J. O’Brien

  
	
   

  	
   

  	
  Title:
  Vice President

  



 


[Signature Page to Third Supplemental
Indenture]


 

















 


EXHIBIT A


(Face of Security)


 


[Global Securities Legend]


 


[The
following legend shall appear on the face of each Global Security: THIS NOTE IS
A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY,
WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS
OWNER AND HOLDER OF THIS NOTE FOR ALL PURPOSES.]


 


[The
following legend shall appear on the face of each Global Security for which The
Depository Trust Company is to be the Depositary:


 


UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“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 IN SUCH OTHER NAME AS IS
REQUESTED BY THE AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS 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.


 


UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR REGISTERED NOTES IN
DEFINITIVE REGISTERED FORM IN THE LIMITED CIRCUMSTANCES REFERRED TO IN THE
INDENTURE, THIS GLOBAL SECURITY 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.]


 

















 


	
  No.

  	
   

  
	
   

  	
   

  
	
  $

  	
  CUSIP
  52729NBR0

  



 


Level 3 Communications, Inc.


 


6.5% CONVERTIBLE SENIOR NOTE DUE 2016


 


	
  Level
  3 Communications, Inc. promises to pay to Cede & Co. or
  registered assigns, the principal sum of     
         Dollars on October 1, 2016.

  
	
   

  	
   

  	
   

  
	
  Interest
  Payment Dates:

  	
   

  	
  April 1
  and October 1, commencing April 1, 2011

  
	
  Regular
  Record Dates:

  	
   

  	
  March 15
  and September 15

  



 


	
  Dated:

  	
   

  
	
   

  	
  Level
  3 Communications, Inc.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Certificate of
Authentication


 


This
is one of the Convertible Senior Notes referred to in the within-mentioned
Indenture.


 


	
  Date:

  	
   

  
	
   

  	
  The
  Bank of New York Mellon, as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


2

















 


(Back of Security)


 


3

















 


Level 3 Communications, Inc.


 


6.5% CONVERTIBLE SENIOR NOTE DUE 2016


 


1.             INTEREST.  Level 3 Communications, Inc., a Delaware
corporation (the “Company”), promises to pay interest on the principal amount
of this Note at the rate per annum shown above. 
The Company will pay interest semi-annually in arrears on April 1
and October 1 of each year, beginning April 1, 2011.  Interest on the Notes will accrue from the
most recent Interest Payment Date to which interest has been paid or, if no
interest has been paid, from September 20, 2010.  Interest will be computed on the basis of a
360-day year composed of twelve 30-day months.


 


2.             METHOD OF
PAYMENT.  The Company will pay interest
on the Notes (except Defaulted Interest) to the Person in whose name each Note
is registered at the close of business on the March 15 or September 15
immediately preceding the relevant Interest Payment Date (each a “Regular
Record Date”).  The Holder must surrender
Notes to a Paying Agent to collect principal payments.  The Company will pay the principal of,
premium, if any, and interest on the Notes at the office or agency of the
Company maintained for such purpose, in money of the United States that at the
time of payment is legal tender for payment of public and private debts.  Until otherwise designated by the Company,
the Company’s office or agency maintained for such purpose will be the
principal Corporate Trust Office of the Trustee (as defined below).  However, the Company may pay principal,
premium, if any, and interest by check payable in such money, and may mail such
check to the Holders of the Notes at their respective addresses as set forth in
the Security Register of Holders of Notes.


 


3.             PAYING AGENT,
CONVERSION AGENT AND REGISTRAR.  The Bank
of New York Mellon (together with any successor Trustee under the Indenture
referred to below, the “Trustee”) will act as Paying Agent, Conversion Agent
and Security Registrar.  The Company may
change the Paying Agent, Conversion Agent, Registrar or co-registrar without
prior notice.  Subject to certain
limitations in the Indenture, the Company or any of its subsidiaries may act in
any such capacity.


 


4.             INDENTURE.  This is one of a duly authorized issue of
securities of the Company designated as its “6.5% Convertible Senior Notes due
2016” issued under an indenture dated as of December 24, 2008 (the “Base
Indenture”), between the Company and the Trustee, and a third supplemental
indenture dated as of September 20, 2010 (the “Supplemental Indenture”),
between the Company and the Trustee (the Base Indenture as supplemented by the
Supplemental Indenture, the “Indenture”). 
The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture 


 


4

















 


Act
of 1939 (the “TIA”) as in effect on the date of the Indenture.  The Notes are subject to, and qualified by,
all such terms, certain of which are summarized hereon, and Holders are
referred to the Indenture and the TIA for a statement of such terms.  The Notes are unsecured and unsubordinated
obligations of the Company limited to (except as otherwise provided in the
Indenture) up to $201,250,000 in aggregate principal amount.  Capitalized terms not defined below have the
same meaning as is given to them in the Indenture.


 


5.             OPTIONAL
REDEMPTION. No sinking fund is provided for the Notes. The Notes may not be
redeemed at the option of the Company prior to October 1, 2013. After that
date, at any time or times the condition set forth in the following sentence is
met, the Company may redeem all or any portion of the Notes at once or over
time, after giving the required notice under the Indenture.  The Notes may be redeemed at a redemption
price equal to 100% of the principal amount of the Notes redeemed (such amount,
the “Redemption Price”), plus accrued and unpaid interest (if any), to
but excluding the redemption date (the “Redemption Date”), if the Closing
Sale Price of the Common Stock of the Company has exceeded 150% of the
Conversion Price then in effect for at least 20 Trading Days in any consecutive
30-Trading Day period ending on the Trading Day immediately preceding the date
of mailing of the notice of redemption pursuant to Section 7.4 of the
Third Supplemental Indenture.  However,
if a Redemption Date occurs after a Regular Record Date or a Special Record
Date but on or prior to the corresponding Interest Payment Date or Defaulted
Interest payment date, the Company will instead pay the applicable interest
payment to the Holder on the Regular Record Date or Special Record Date
corresponding to such Interest Payment Date or Defaulted Interest payment date.


 


Notice
of redemption will be mailed by first class mail at least 30 days but not more
than 60 days before the date fixed for redemption to each Holder of Notes to be
redeemed at his or her registered address. Notes in denominations larger than
$1,000 may be redeemed in part but only in integral multiples of $1,000. If
less than all the Notes are to be redeemed, the Trustee shall select the Notes
to be redeemed by a method that complies with the requirements of the principal
national securities exchange, if any, on which the Notes are listed or quoted,
or, if the Notes are not so listed, on a pro rata basis, by lot or by any other
method that the Trustee considers fair and appropriate. On and after the
Redemption Date, interest ceases to accrue on Notes or portions thereof called
for redemption (unless the Company defaults in the payment of the Redemption
Price). If this Note is redeemed on a date which is also an Interest Payment
Date, the interest due on such date will be paid to the Person in whose name
this Note is registered at the close of business on the relevant Regular Record
Date.


 


6.             DESIGNATED
EVENT.  Upon the occurrence of a
Designated Event, the Company shall make a Designated Event Offer to repurchase
all outstanding Notes at a price equal to 100% of the aggregate principal
amount of the Notes, plus accrued and unpaid interest to, but excluding, the
date of repurchase, such 


 


5

















 


offer
to be made as provided in the Indenture. 
To accept the Designated Event Offer, the Holder hereof must comply with
the terms thereof, including surrendering this Note, with the “Designated Event
Purchase Notice” portion hereof completed, to the Company, a depositary, if
appointed by the Company, or a Paying Agent, at the address specified in the
notice of the Designated Event Offer mailed to Holders as provided in the
Indenture, prior to the close of business on the Business Day immediately
preceding the Designated Event Purchase Date.


 


7.             DENOMINATIONS,
TRANSFER, EXCHANGE.  The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000.  The transfer of
Notes may be registered and Notes may be exchanged as provided in the
Indenture.  As a condition of transfer,
the Security Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents, and the
Company and the Security Registrar may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture.  The Company or the Security Registrar need
not exchange or register the transfer of any Note or portion of a Note selected
for redemption or submitted for repurchase or surrendered for conversion.  Also, the Company or the Security Registrar
need not exchange or register the transfer of any Note for a period of 15 days
before the mailing of a notice of redemption for such Notes to be redeemed.


 


8.             PERSONS DEEMED
OWNERS.  The registered holder of a Note
shall be treated as its owner for all purposes.


 


9.             AMENDMENTS AND
WAIVERS.  Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of all Outstanding
Securities affected thereby, and any existing default may be waived with the
consent of the Holders of a majority in principal amount of the then
outstanding Notes.


 


Without the consent of any Holder, the Indenture or the Notes may be
amended to, among other things: (a) cure any ambiguity or correct or
supplement any defective or inconsistent provision contained in the Indenture,
or make any other changes in the provisions in the Indenture with respect to
matters or questions arising under the Indenture which are not inconsistent
with the other provisions of the Indenture, provided such amendment does not
materially and adversely affect the legal rights under the Indenture of the
Holders of Notes; (b) provide for uncertificated Notes in addition to or
in place of certificated Notes; (c) evidence the succession of another
Person to the Company and provide for the assumption by such successor of the
covenants and obligations of the Company thereunder and in the Notes as
permitted by Section 8.01 of the Indenture; (d) provide for
conversion rights or repurchase rights of Holders of Notes in the event of
consolidation, merger, share exchange or sale of all or substantially all of
the assets of the Company as required to comply with Sections 8.01 or 15.06 of
the Indenture; (e) increase the Conversion Rate; (f) add guarantees
with respect to the


 


6
















 


Notes;
(g) evidence and provide for the acceptance of the appointment under the
Indenture of a successor Trustee or to provide for or facilitate the
administration of the trusts by more than one Trustee; (h) add to the covenants
of the Company for the benefit of the Holders of the Notes; (i) comply with the
requirements of the Commission in order to effect or maintain the qualification
of the Indenture under the TIA; (j) secure the Notes; (k) permit or facilitate
the defeasance and discharge of Notes; or (l) add additional Events of Default
for the benefit of the Holders of the Notes, provided that in respect of
any such additional Event of Default, the grace period may be shorter or longer
than allowed in the case of other defaults or may provide for an immediate
enforcement or may limit the remedies available to the Trustee or limit the
right of the Holders of a majority in aggregate principal amount of the Notes.


 


Without the consent of each Holder affected, an amendment or waiver may
not (with respect to any Notes held by a nonconsenting Holder): (a) reduce the
percentage in principal amount of the Notes, the consent of whose Holders is
required for an amendment, supplement or waiver; (b) modify any of the
provisions of Section 9.02 or Section 5.04 of the Indenture, except to increase
any such percentage or to provide that certain other provisions of the
Indenture cannot be modified or waived without the consent of the Holder of
each Outstanding Security affected thereby; (c) change the Stated Maturity of the
principal of (or premium, if any on) or any installment of principal of or
interest, including any Defaulted Interest, on any Note; (d) reduce the
principal amount of any Note or the rate or amount of interest thereon or alter
the provisions of the Indenture with respect to the purchase of Notes at the
option of the Holders upon a Designated Event in a manner adverse to the
Holders thereof; (e) adversely affect any right of repayment at the option of
the Holder of any Note; (f) impair the right of Holders to convert their Notes
upon the terms established pursuant to or in accordance with the provisions of
the Third Supplemental Indenture; (g) waive a Default or Event of Default in
the payment of principal of or premium, if any, or interest on the Notes (except
a rescission of acceleration of the Notes by the Holders of at least a majority
in aggregate principal amount of the Notes then outstanding and a waiver of the
payment default that resulted from such acceleration) or of a Designated Event
Payment; (h) change any Place of Payment where any Note or any premium or the
interest thereon is payable or make the principal of, or interest on, any Note
payable in money other than as provided for in the Indenture and in the Notes; (i)
make any change in the provisions of the Indenture relating to waivers of past
Defaults or Events of Default or the rights of Holders of Notes to receive
payments of principal of, premium, if any, or interest on the Notes; (j) make
any adverse change to the abilities of Holders of Notes to enforce their rights
under the Indenture; (k) impair the right to institute suit for the enforcement
of any payment on or after the Stated Maturity thereof (or, in the case of
purchase at the option of the Holder, on or after the Designated Event Purchase
Date) with respect to any Note; or (l) except as permitted by the Indenture
(including Section 9.01(9)), decrease the Conversion Rate, or modify the
provisions of the Indenture relating to conversion of the Notes in a manner
adverse to the Holders thereof or 


 


7

















 


otherwise
impair the right of Holders to convert their Notes, upon the terms established
pursuant to or in accordance with the provisions of the Indenture.


 


10.                                DEFAULTS AND
REMEDIES.  An Event of Default is: (a) default
in the payment of the principal of, or premium, if any, on the Notes, when due
at maturity, upon repurchase, upon acceleration or otherwise, including,
without limitation, failure of the Company to make any optional redemption
payment when required pursuant to Article VII of the Third Supplemental
Indenture; (b) default for 30 days or more in payment of any installment of
interest on the Notes; (c) default in the payment of the Designated Event
Payment in respect of the Notes on the date therefor or failure to provide
timely notice of any Designated Event; (d) default by the Company (other than a
default set forth in clause (a), (b) or (c) above) for 60 days or more after
notice in the performance of, or breaches of, any other covenant or warranty in
the Indenture; (e) default under any credit agreement, mortgage, indenture or
instrument under which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed by the Company or any Material
Subsidiary (or the payment of which is guaranteed or secured by the Company or
any of its Material Subsidiaries), whether such indebtedness or guarantee
exists on the date of the Indenture or is created thereafter, which default (i)
is caused by a failure to pay when due any principal of such indebtedness
within the grace period provided for in such indebtedness, which failure
continues beyond any applicable grace period (a “Payment Default”), or (ii) results
in the acceleration of such indebtedness prior to its express maturity (without
such acceleration being rescinded or annulled) and, in each case, the principal
amount of such indebtedness, together with the principal amount of any other
such indebtedness under which there is a Payment Default or the maturity of
which has been so accelerated, aggregates $25,000,000 (or its foreign currency
equivalent) or more and such Payment Default is not cured or such acceleration
is not annulled within 10 days after notice; (f) failure by the Company or any
Material Subsidiary of the Company to pay final, nonappealable judgments (other
than any judgment as to which a reputable insurance company has accepted full
liability) aggregating in excess of $25,000,000 (or its foreign currency
equivalent), which judgments are not stayed, bonded or discharged within 60 days
after their entry; (g) certain events involving bankruptcy, insolvency or
reorganization of the Company or any Material Subsidiary; or (h) default for
more than 5 Business Days of the delivery of shares of Common Stock or other
property upon conversion of the Notes. 
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare the unpaid principal of, premium, if any, and accrued and unpaid
interest on all Notes then outstanding to be due and payable immediately,
except that in the case of an Event of Default arising from certain events of
bankruptcy, insolvency, or reorganization with respect to the Company, all outstanding
Notes become due and payable without further action or notice.  Holders of Notes may not enforce the
Indenture or the Notes except as provided in the Indenture.  The Trustee may require an indemnity
reasonably satisfactory to it before it enforces the Indenture or the
Notes.  Subject 


 


8

















 


to
certain limitations, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or
power.  The Trustee may withhold from
Holders notice of any continuing default (except, among other things, a default
in payment of principal, premium, if any, or interest) if it determines that
withholding notice is in their interests. 
The Company must furnish annual compliance certificates to the Trustee.


 


11.                                TRUSTEE
DEALINGS WITH THE COMPANY.  The Trustee
or any of its Affiliates, in their individual or any other capacities, may make
or continue loans to or guaranteed by, accept deposits from and perform
services for the Company or its Affiliates and may otherwise deal with the
Company or its Affiliates as if it were not Trustee.


 


12.                                NO RECOURSE
AGAINST OTHERS.  No director, officer,
employee, shareholder or Affiliate, as such, of the Company shall have any
liability for any obligations of the Company under the Notes or the Indenture
or for any claim based on, in respect of or by reason of such obligations or
their creation.  Each Holder by accepting
a Note waives and releases all such liability. 
The waiver and release are part of the consideration for the Notes.


 


13.                                AUTHENTICATION.  This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.


 


14.                                ABBREVIATIONS.  Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN CO = tenants in common, TEN ENT =
tenants by the entireties, JT TEN = joint tenants with right of survivorship
and not as tenants in common, CUST = Custodian and U/G/M/A = Uniform Gifts to
Minors Act.


 


15.                                CONVERSION.  Subject to and upon compliance with the
provisions of the Indenture, the registered holder of this Note has the right
at any time on or before the close of business on the Stated Maturity date (or
in case this Note or any portion hereof is (a) called for redemption prior to
such date, before the close of business on the last Trading Day preceding the
date fixed for redemption (unless the Company defaults in payment of the
Redemption Price in which case the conversion right will terminate at the close
of business on the date such default is cured) or (b) subject to a duly
completed election for repurchase, on or before the close of business on the
Business Day immediately preceding the Designated Event Purchase Date (unless
the Company defaults in payment due upon repurchase or such Holder elects to
withdraw the submission of such election to repurchase)) to convert the
principal amount hereof, or any portion of such principal amount which is
$1,000 or an integral multiple thereof, into that number of fully paid and
non-assessable shares of common stock of the Company (“Common Stock”) obtained
by multiplying (a) the amount obtained by dividing (i) the principal amount of
the Note or portion thereof to be converted by (ii) $1,000 by (b) the
conversion rate of 809.7166 shares of Common Stock per $1,000 of notes (the “Conversion
Rate”) (which is equivalent to a conversion 


 


9

















 


price
of $1.235 per share (the “Conversion Price”)), as adjusted from time to time as
provided in the Indenture, upon surrender of this Note to the Company at the
office or agency maintained for such purpose (and at such other offices or
agencies designated for such purpose by the Company), accompanied by written
notice of conversion duly executed (and if the shares of Common Stock to be
issued on conversion are to be issued in any name other than that of the
registered holder of this Note by instruments of transfer, in form satisfactory
to the Company, duly executed by the registered holder or its duly authorized
attorney) and, in case such surrender shall be made during the period from the
close of business on the Regular Record Date immediately preceding any Interest
Payment Date through the close of business on the last Trading Day immediately
preceding such Interest Payment Date (unless (a) a Designated Event Purchase
Date has been specified by the Company during such period, (b) this Note or the
portion thereof being converted has been called for redemption on a date in
such period or (c) this Note or the portion thereof being converted are
surrendered for conversion after the close of business on the Regular Record
Date immediately preceding the Stated Maturity of this Note), also accompanied
by payment, in funds acceptable to the Company, of an amount equal to the
interest otherwise payable on such Interest Payment Date on the principal
amount of this Note then being converted; provided, however, that
such payment may be reduced by the amount of any existing payment default in
respect of this Note.  Subject to the
aforesaid requirement for a payment in the event of conversion after the close
of business on a Regular Record Date immediately preceding an Interest Payment
Date, no adjustment shall be made on conversion for interest accrued hereon or
for dividends on Common Stock delivered on conversion.  The right to convert this Note is subject to
the provisions of the Indenture relating to conversion rights in the case of
certain consolidations, mergers, share exchanges or sales or transfers of
substantially all the Company’s assets.


 


The Conversion Rate on any Notes converted in connection with
certain  specified Changes in Control as
designated in the Indenture may be increased by an amount, if any, determined
in accordance with Article Fifteen of the Indenture.


 


The Company shall, in respect of fractional shares representing
fractions of shares of Common Stock upon any such conversion, make an
adjustment in cash based upon the current market price of the Common Stock on
the last Trading Day prior to the date of conversion or round such fraction up
to the nearest whole number of shares.


 


The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture.  Requests
may be made to: Level 3 Communications, Inc., 1025 Eldorado Boulevard,
Broomfield, Colorado 80021, Attention: Vice President, Investor Relations, or
by telephone at (720) 888-1000.


 


The Indenture and this Note shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to conflicts
of laws principles thereof.


 


10

















 


FORM OF CONVERSION NOTICE


 


To:  Level 3 Communications, Inc.


 


The
undersigned owner of the Note hereby irrevocably exercises the option to
convert this Note, or portion hereof (which is $1,000 or an integral multiple
thereof) below designated, into shares of Common Stock of Level 3
Communications, Inc., in accordance with the terms of the Indenture referred to
in this Note, and directs that the shares issuable and deliverable upon the
conversion, together with any check in payment for fractional shares and Notes
representing any unconverted principal amount hereof, be issued and delivered
to the owner hereof unless a different name has been indicated below.  If shares or any portion of this Note not
converted are to be issued in the name of a Person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto.  Any amount required to be paid by the
undersigned on account of interest and taxes accompanies this Note.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
  Fill
  in for registration of shares if to be delivered, 

  	
   

  	
   

  
	
  and
  Notes if to be issued, other than to and in the

  	
   

  	
   

  
	
  name
  of the owner 

  	
   

  	
   

  
	
  (Please
  Print):

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Principal
  amount to be converted (if less than all): 

  
	
  (Name)

  	
   

  	
   

  
	
   

  	
   

  	
  $        ,000

  
	
   

  	
   

  	
   

  
	
  (Street Address)

  	
   

  	
  Social
  Security or other Taxpayer Identification 

  Number

  
	
   

  	
   

  	
   

  
	
  (City, State and Zip Code)

  	
   

  	
   

  



 


Signature
Guarantee:


 


	
   

  	
   

  	
   

  



Signatures
must be guaranteed by an eligible Guarantor Institution (banks, brokers,
dealers, savings and loan associations and credit unions) with membership in an
approved signature guarantee medallion program pursuant to Securities and
Exchange Commission Rule 17Ad-15 if shares are to be issued, or Notes are
to be delivered, other than to and in the name of the registered holder.


 


11

















 


ASSIGNMENT FORM


 


To
assign this Note, fill in the form below:


 


(I) or
(we) assign and transfer this Note to


 


	
   

  
	
  (Insert assignee’s social security or tax I.D. no.)

  
	
   

  
	
   

  
	
   

  
	
   

  
	
  (Print or type assignee’s name, address and zip code)

  



 


and
irrevocably appoint
                                                              
agent to transfer this Note on the books of the Company.  The agent may substitute another to act for
him.


 


	
  Your
  Signature:

  	
   

  
	
   

  	
  (Sign exactly as your name appears on the other side of this Note)

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
				



 


	
  Medallion
  Signature Guarantee:

  	
   

  	
   

  



 


12

















 


DESIGNATED EVENT PURCHASE
NOTICE


 


If
you wish to have this Note repurchased by the Company pursuant to Section 10.06
of the Indenture, check the Box: o


 


If
you wish to have a portion of this Note purchased by the Company pursuant to Section 10.06
of the Indenture, state the amount (in multiples of $1,000):
$          .


 


	
  Date:

  	
   

  	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
  (Sign
  exactly as your name appears on the other side of this Note)

  



 


	
   

  	
  Medallion
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