FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE dated as of May 31, 2000, between MGC
COMMUNICATIONS, INC., a corporation duly organized and existing under the laws
of Nevada (hereinafter called the "Company"), and HSBC Bank USA (successor to
Marine Midland Bank), as trustee (the "Trustee");
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture dated as of September 29, 1997 (hereinafter called the
"Original Indenture"), to provide for the issuance of its debt securities (the
"Securities") under the Indenture; and
WHEREAS, Section 9.02 of the Original Indenture provides, among other
things, that, with the consent of the Holders of not less than a majority in
aggregate principal amount of the outstanding Securities affected, the Company
and the Trustee may enter into indentures supplemental to the Original Indenture
for, among other things, the purpose of changing in any manner or eliminating
any of the provisions of the Original Indenture (other than as provided in
Section 9.02 of the Original Indenture) or of modifying in any manner the rights
of the Holders of Securities (other than as provided in Section 9.02 of the
Original Indenture) of each series affected; and
WHEREAS, the 13% Series Secured Notes due 2004 constitute the only
series of Securities (the "Notes") under the Indenture; and
WHEREAS, the Company desires to amend and delete certain provisions to
the Original Indenture in order to eliminate substantially all of the
restrictive covenants contained therein; and
WHEREAS, all action on the part of the Company necessary to authorize
its execution, delivery and performance of the Original Indenture, as amended
and supplemented, as further supplemented by this First Supplemental Indenture
has been duly taken; and
WHEREAS, the Company has solicited the consent of Holders of the Notes
to certain amendments to the Original Indenture (the "Proposed Amendments")
pursuant to that certain Private Exchange Offer Circular and Consent
Solicitation Statement, dated May 23, 2000 (the "Exchange Offer and Solicitation
Statement"); and
WHEREAS, Holders of at least a majority in aggregate principal amount
of the Notes have consented (the "Requisite Consents") to the Proposed
Amendments and instruments evidencing such consent have been delivered to the
Trustee; and
WHEREAS, the Company desires and has requested the Trustee to join in
the execution and delivery of this First Supplemental Indenture for the purpose
of amending the Original Indenture.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, it is mutually covenanted and agreed for the equal and
ratable benefit of all Holders of the Notes as follows, effective upon execution
hereof by the Trustee:
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DEFINITION
Section 101 Definition. When used herein, "Exchange Offer Completion
Event" shall mean such time as each of the following events shall have occurred:
(i) the Company shall have completed the Exchange Offer (as defined in the
Exchange Offer and Solicitation Statement") in accordance with the terms and
conditions set forth in the Company's Exchange Offer and Solicitation Statement
and (ii) each noteholder who has delivered its Notes for exchange pursuant to
the Exchange Offer shall have received New Notes and a Residual Cash Amount (as
such terms are defined in the Exchange Offer and Solicitation Statement) in
accordance with the terms of the Exchange Offer.
ARTICLE TWO
AMENDMENTS TO ORIGINAL INDENTURE
Section 201 Deleted Covenants. Upon the occurrence of the Exchange
Offer Completion Event, the text of the following Sections of the Original
Indenture shall be deleted in their entirety and replaced by the words
"Intentionally Omitted":
Section 3.09. Offer to Purchase with Excess Asset Sale Proceeds.
Section 4.03 Reports.
Section 4.05 Taxes.
Section 4.07 Restricted Payments.
Section 4.08 Dividend and Other Payment Restrictions Affecting
Subsidiaries.
Section 4.09 Incurrence of Indebtedness and Issuance of Disqualified
Stock.
Section 4.10 Asset Sales.
Section 4.11 Transactions with Affiliates.
Section 4.12 Liens.
Section 4.13 Limitations on Sale and Leaseback Transactions.
Section 4.15 Offer to Purchase Upon a Change of Control.
Section 4.16 Business Activities.
Section 4.20 Insurance.
Section 4.21 Payments for Consents.
Section 5.01 (iii), (iv) and (v), Merger, Consolidation or Sale of
Assets.
Section 202 Amended Section 5.02. Upon the occurrence of the Exchange
Offer Completion Event, the text of Section 5.02 shall be deleted in its
entirety and replaced with the following:
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"Upon any consolidation, combination, merger or any transfer of all or
substantially all of the assets of the Company, the surviving entity
formed by such consolidation or combination or into which the Company
is merged or to which such transfer is made shall 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 surviving entity
had been named as the Company herein, and thereafter, the predecessor
company (except in the case of a lease) shall be released from all
obligations and covenants under this Indenture and the Notes."
ARTICLE THREE
MISCELLANEOUS PROVISIONS
Section 301 Execution as Supplemental Indenture. This First
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture and, as provided in the Original
Indenture, this First Supplemental Indenture forms a part thereof. Except as
otherwise expressly defined herein, the use of the terms and expressions herein
is in accordance with the definitions, uses and constructions contained in the
Original Indenture.
Section 302 Responsibility for Recitals, etc. The recitals herein shall
be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee makes no representations
as to the validity or sufficiency of this First Supplemental Indenture.
Section 303 Provisions Binding on Company's Successors. All of the
covenants, stipulations, promises and agreements made in this First Supplemental
Indenture by the Company shall bind its successors and assigns whether so
expressed or not.
Section 304 Governing Law. This First Supplemental Indenture shall be
deemed to be a contract made under the laws of the State of New York and, for
all purposes, shall be construed in accordance with the laws of said State.
Section 305 Execution and Counterparts. This First Supplemental
Indenture may be executed in any number of counterparts, each of which shall be
an original, but such counterparts shall together constitute but one and the
same instrument.
Section 306 Trust Indenture Act to Control. If and to the extent that
any provision of this First Supplemental Indenture limits, qualifies, or
conflicts with another provision included in the Original Indenture or in this
First Supplemental Indenture which is required to be included in or is deemed to
be applicable to this First Supplemental Indenture by any of Sections 310 to
317, inclusive, of the Trustee Indenture Act of 1939, such required or other
applicable provision shall control.
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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 written above.
MGC COMMUNICATIONS, INC.
By: /s/ Michael Daley
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Name: Michael Daley
Title: Executive Vice President and
Chief Financial Officer
HSBC BANK USA, as Trustee
By: /s/ Frank Godino
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Name: Frank Godino
Title: Vice President
