Exhibit 4.42
CAPROCK COMMUNICATIONS CORP.,
AS ISSUER
AND
CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION,
AS TRUSTEE
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FIRST SUPPLEMENTAL INDENTURE
DATED AS OF ___________ __, 2000
TO INDENTURE
DATED AS OF MAY 18, 1999,
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$210,000,000
11 1/2% SENIOR NOTES DUE 2009
FIRST SUPPLEMENTAL INDENTURE, dated as of _________ __, 2000, by and
between CAPROCK COMMUNICATIONS CORP., a Texas corporation, (the "Issuer"), and
CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee, (the
"Trustee").
WITNESSETH
WHEREAS the Issuer has heretofore executed and delivered to the Trustee
an Indenture dated as of May 18, 1999, (the "Indenture"), providing for the
issuance of an aggregate principal amount of up to $210,000,000 of 11 1/2%
Senior Notes due 2009 (the "Notes");
WHEREAS, the Issuer has commenced a solicitation of consents (the
"Consent Solicitation") from the Holders to certain amendments to the Indenture
as set forth in the Consent Solicitation Statement of the Issuer dated October
11, 2000, (the "Proposed Amendment");
WHEREAS, pursuant to the Consent Solicitation, the Holders of at least a
majority in aggregate principal amount of the Notes outstanding have consented
(the "Requisite Consents") to the amendments effected by this First Supplemental
Indenture in accordance with the provisions of the Indenture;
WHEREAS, this First Supplemental Indenture evidences the Proposed
Amendments described in the Consent Solicitation Statement;
WHEREAS, Section 9.02 of the Indenture provides, among other things,
that with the written consent of Holders holding not less than a majority of the
aggregate principal amount of the Notes then outstanding, the Issuer may from
time to time amend or supplement the Indenture, subject to certain exceptions
specified in Section 9.02 of the Indenture;
WHEREAS, on October 11, 2000, the Issuer mailed or otherwise delivered a
Consent Solicitation Statement to each Holder of record as of October 6, 2000,
and has obtained the Requisite Consents;
WHEREAS, this First Supplemental Indenture has been duly authorized by
all necessary corporate action on the part of the Issuer; and
WHEREAS, the Issuer has delivered, or caused to be delivered, to the
Trustee an Officers' Certificate and an Opinion of Counsel meeting the
requirements of Sections 1.04 and 10.09 of the Indenture and stating that all
conditions precedent (including any covenants compliance with which constitutes
a condition precedent), if any, provided for in the Indenture relating to this
First Supplemental Indenture have been satisfied.
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NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, receipt of which is hereby acknowledged, the Issuer, and
the Trustee mutually covenant and agree for the equal and ratable benefit of the
holders of the Notes as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. When used herein, the following terms will
have the respective meanings set forth below.
"Covenant Amendments" means the amendments to the Indenture listed in
Article III of this First Supplemental Indenture.
"McLeodUSA" means McLeodUSA Incorporated, a Delaware corporation.
"McLeodUSA Merger" means any merger of the Issuer with McLeodUSA or any
wholly-owned subsidiary of McLeodUSA pursuant to, or any other transaction
contemplated by, that certain Agreement and Plan of Merger dated as of October
2, 2000 by and among McLeodUSA, Cactus Acquisition Corp., a Delaware
corporation, and the Issuer, or any amendment thereto and any related
agreements.
"Merger Amendments" means the amendments to the Indenture listed in
Article II of this First Supplemental Indenture.
ARTICLE II
MERGER AMENDMENTS
SECTION 2.01. EFFECTIVE TIME OF MERGER AMENDMENTS. The Merger Amendments
shall become effective upon execution of this First Supplemental Indenture by
the Trustee and the Issuer.
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SECTION 2.02. AMENDMENT AND RESTATEMENT OF THE DEFINITION OF "CHANGE OF
CONTROL". The definition of "Change of Control" in Section 1.01 of the Indenture
is hereby amended and restated in its entirety to read as set forth below:
" "Change of Control" shall be deemed to occur if:
(i) the sale, conveyance, transfer or lease of all or
substantially all of the assets of the Issuer to any Person or "group"
(as such term is used in Sections 13(d)(3) and 14(d)(2) of the Exchange
Act, including any group acting for the purpose of acquiring, holding or
disposing of securities within the meaning of Rule 13d-5(b)(1) under the
Exchange Act), other than to one or more Permitted Holders and/or one or
more Restricted Subsidiaries, shall have occurred,
(ii) any Person or "group" (as such term is used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act including any group acting for
the purpose of acquiring, holding or disposing of securities within the
meaning of Rule 13d-5(b)(1) under the Exchange Act), other than any
Permitted Holder (or group that includes a Permitted Holder), becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act)
of more than 50% of the total voting power of all classes of the Voting
Stock of the Issuer (including any warrants, options or rights to
acquire such Voting Stock), calculated on a fully diluted basis,
(iii) during any period of two consecutive years, individuals
(OTHER THAN THOSE APPOINTED BY MCLEODUSA) who at the beginning of such
period constituted the Board of Directors of the Issuer (together with
any directors whose election or appointment by the Board of Directors of
the Issuer or whose nomination for election by the stockholders of the
Issuer 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 Issuer then in office or
(iv) EXCEPT FOR THE MCLEODUSA MERGER, the merger, amalgamation or
consolidation of the Issuer with or into another Person or the merger of
another Person with or into the Issuer shall have occurred, and the
securities of the Issuer that are outstanding immediately prior to such
transaction and which represent 100% of the aggregate voting power of
the Voting Stock of the Issuer are changed into or exchanged for cash,
securities or property, unless pursuant to such transaction such
securities are changed into or exchanged for, in addition to any other
consideration, securities of the surviving Person that represent,
immediately after giving effect to such transaction, at least a majority
of the aggregate voting power of the Voting Stock of the surviving
Person."
SECTION 2.03. AMENDMENT AND RESTATEMENT OF THE DEFINITION OF "PERMITTED
HOLDERS". The definition of "Permitted Holders" in Section 1.01 of the Indenture
is hereby amended and restated in its entirety to read as set forth below:
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" "Permitted Holders" means MCLEODUSA, Jere W. Thompson, Sr.,
Jere W. Thompson, Jr., Mark Langdale, Timothy W. Rogers, Scott L.
Roberts, Timothy M. Terrell and Ignatius W. Leonards and any
corporation, limited liability company, partnership, joint venture or
other entity controlled by any one or more of them."
SECTION 2.04. AMENDMENT AND RESTATEMENT OF SECTION 8.01. Section 8.01 of
the Indenture is hereby amended and restated in its entirety to read as set
forth below:
"Section 8.01.ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
The Issuer will not consolidate with, or merge with or into or
sell, convey, transfer, lease or otherwise dispose of all or
substantially all of its property and assets (as an entirety or
substantially an entirety in one transaction or a series of related
transactions) to any Person or permit any Person to merge with or into
the Issuer OTHER THAN IN CONNECTION WITH THE MCLEODUSA MERGER (WHICH IS
HEREBY EXPRESSLY PERMITTED), unless:
(a) the Issuer shall be the continuing Person, or the Person (if
other than the Issuer) formed by such consolidation or into which the
Issuer is merged or that acquired or leased such property and assets of
the Issuer shall be a corporation organized and validly existing under
the laws of the United States of America or any jurisdiction thereof,
and shall expressly assume, by a supplemental indenture, executed and
delivered to the Trustee, all of the obligations of the Issuer on all of
the Notes and under the Indenture;
(b) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(c) immediately after giving effect to such transaction on a PRO
FORMA basis, the Issuer, or any Person becoming the successor obligor of
the Notes, as the case may be, could Incur at least $1.00 of
Indebtedness under clause (i) of Section 10.11(a) hereof; PROVIDED,
HOWEVER, that this clause (c) shall not apply to a consolidation or
merger with or into a Wholly Owned Restricted Subsidiary with a positive
net worth, PROVIDED that in connection with any such merger or
consolidation, no consideration (except Capital Stock (other than
Redeemable Stock) in the surviving Person or the Issuer (or a Person
that owns directly or indirectly all of the Capital Stock of the
surviving Person or the Issuer immediately following such transaction)
or cash paid to satisfy dissenter or appraisal rights; PROVIDED that
such rights are exercised with respect to no more than 5% of the
outstanding Capital Stock of the Issuer or other Person) shall be issued
or distributed to the stockholders of the Issuer; and
(d) the Issuer delivers to the Trustee an Officers' Certificate
(attaching the arithmetic computations to demonstrate compliance with
clause (c) above) and an Opinion of Counsel, in each case stating that
such consolidation, merger or transfer and such supplemental indenture
comply with this provision and that all conditions precedent provided
for herein relating to such transaction have been complied with;
PROVIDED, HOWEVER, that clauses (b) and (c) above do not apply if, in
the good faith determination of the Board of Directors of the Issuer,
whose determination shall be evidenced by a Board
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Resolution, the principal purpose of such transaction is to change the
state of incorporation of the Issuer; and PROVIDED FURTHER that any such
transaction shall not have as one of its purposes the evasion of the
foregoing limitations."
ARTICLE III
COVENANT AMENDMENTS
SECTION 3.01. DELETION AND ADDITION OF CERTAIN DEFINITIONS. Upon the
occurrence of (i) the execution of this First Supplemental Indenture by the
Trustee and the Issuer and (ii) the later of (a) the effective time of the
McLeodUSA Merger and (b) twenty (20) business days following commencement by
McLeodUSA of an exchange offer to acquire all of the outstanding Notes in
exchange for notes of McLeodUSA having the same interest rate, payment, maturity
and redemption terms as the Notes but otherwise having terms substantially
similar to the 8 1/8% Senior Notes due 2009 of McLeodUSA ("Covenant Amendment
Effective Time"), Sections 1.01 and 1.02 of the Indenture shall be amended by
deleting the definition of each term that is used in the Indenture only in the
Articles, Sections or Subsections thereof that are deleted pursuant to Section
3.02 hereof, and by adding the following to Section 1.01:
" "Covenant Amendment Effective Time" shall have the meaning set forth
in Section 3.01 of the First Supplemental Indenture."
SECTION 3.02. DELETION OF CERTAIN SECTIONS. Upon the occurrence of the
Covenant Amendment Effective Time, the text of each of the following Articles,
Sections or Subsections of the Indenture shall be deleted in its entirety and
replaced, in each case, by the words "Intentionally Omitted":
Section 5.01(c) Events of Default
Section 7.04. Reports by Issuer
Article 8 Consolidation, Merger, Sale of Assets, etc.
Section 10.04. Corporate Existence
Section 10.05. Payment of Taxes and Other Claims
Section 10.06. Maintenance of Properties
Section 10.07. Insurance
Section 10.10. Repurchase of Notes Upon a Change of Control
Section 10.11. Limitation on Indebtedness
Section 10.13. Limitation on Restricted Payments
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Section 10.14. Limitation on Transactions with Stockholders and
Affiliates
Section 10.15. Limitation on Asset Sales
Section 10.16. Limitation on Liens
Section 10.18. Limitation on the Issuance and Sale of Capital
Stock of Restricted Subsidiaries
Section 10.19. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries
Section 10.20. Limitation on Sale-Leaseback Transactions
Section 10.21. Limitation on Restrictive Covenants
Section 10.22. Commission Reports and Reports to Holders
Section 10.23. Limitation on Issuances of Guarantees by
Restricted Subsidiaries
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURES PART OF
INDENTURE. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. Upon the execution and delivery of this
First Supplemental Indenture by the Issuer and the Trustee, this First
Supplemental Indenture shall form a part of the Indenture for all purposes, and
every holder of Notes heretofore or hereafter authenticated and delivered shall
be bound hereby. Any and all references, whether within the Indenture or in any
notice, certificate or other instrument or document, shall be deemed to include
a reference to this First Supplemental Indenture (whether or not made), unless
the context shall otherwise require.
SECTION 4.02. GOVERNING LAW; GOVERNANCE, ETC. THIS FIRST SUPPLEMENTAL
INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY. This First Supplemental Indenture shall
be governed and construed in accordance with the applicable terms and provisions
of the Indenture as amended hereby, which terms and provisions are incorporated
herein by reference, as if this First Supplemental Indenture were the
"Indenture" referred to therein.
SECTION 4.03. TRUSTEE MAKES NO REPRESENTATION. The recitals contained
herein shall be taken as the statements of the Issuer and the Trustee assumes no
responsibility for their
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correctness. The Trustee makes no representation as to the validity or
sufficiency of this First Supplemental Indenture.
SECTION 4.04. COUNTERPARTS. The parties may sign any number of copies of
this First Supplemental Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.
SECTION 4.05. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction thereof.
SECTION 4.06. TERMS. Certain capitalized terms used but not defined
herein have the meanings assigned to them in the Indenture.
SECTION 4.07. ENTIRE AGREEMENT. This First Supplemental Indenture,
together with the Indenture as amended hereby and the Notes, contains the entire
agreement of the parties, and supersedes all other representations, warranties,
agreements and understandings between the parties, oral or otherwise, with
respect to the matters contained herein and therein.
SECTION 4.08. BENEFITS OF FIRST SUPPLEMENTAL INDENTURE. Nothing in this
First Supplemental Indenture, the Indenture, or the Notes, express or implied,
shall give to any Person, other than the parties hereto and thereto and their
successors hereunder and thereunder, and the Holders, any benefit of any legal
or equitable right, remedy or claim under the Indenture, the First Supplemental
Indenture or the Notes.
SECTION 4.09. NOTATION ON NOTES. Pursuant to Section 9.06 of the
Indenture, new Notes reflecting the amendments to the Indenture made hereby
shall not be issued; however, corresponding changes to the Notes to reflect the
amendments made hereby shall be deemed to be made to the Notes as of the date of
this First Supplemental Indenture. The Trustee may, but shall not be required
to, place an appropriate notation as to this First Supplemental Indenture on any
Note hereafter authenticated in accordance with Section 9.06 of the Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the date first above written.
CAPROCK COMMUNICATIONS CORP.
By
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Name: Jere W. Thompson, Jr.
Title: Chairman of the Board and
Chief Executive Officer
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee
By
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Name:
Title:
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