EXHIBIT 4.15
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MFS COMMUNICATIONS COMPANY, INC.
and
IBJ XXXXXXXX BANK & TRUST COMPANY
Trustee
________________________________
SECOND
SUPPLEMENTAL INDENTURE
Dated as of ______, 1997
to
INDENTURE
Dated as of January 15, 1996
________________________________
$924,000,000
Principal Amount at Stated Maturity of
8-7/8% Senior Discount Notes Due 2006
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THIS SECOND SUPPLEMENTAL INDENTURE, dated as of _____, 1997 (the
"Second Supplement"), by and between MFS COMMUNICATIONS COMPANY, INC., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called "MFS" or the "Company"), having its principal office at 0000
Xxxxxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxxx 00000, and IBJ XXXXXXXX BANK & TRUST
COMPANY, a New York banking corporation, as Trustee (herein called the
"Trustee").
WHEREAS, pursuant to the terms of the Indenture, dated as of January
15, 1996 (the "Original Indenture"), as supplemented and amended by the First
Supplemental Indenture, dated as of January 15, 1996 (the "First Supplement"
and, together with the Original Indenture, the "Indenture"), between the Company
and the Trustee, the Company has issued $924,000,000 principal amount at Stated
Maturity of its 8-7/8% Senior Discount Notes Due 2006 (herein called the
"Notes"); and
WHEREAS, effective as of December 31, 1996, pursuant to the terms of
that certain Amended and Restated Agreement and Plan of Merger (the "Merger
Agreement"), dated as of August 25, 1996, by and among WorldCom, Inc., a
Georgia corporation ("WorldCom"), HIJ Corp., a Delaware corporation and a wholly
owned subsidiary of WorldCom ("Merger Sub"), and MFS, Merger Sub was merged with
and into MFS, which thereby became a wholly owned subsidiary of WorldCom;
WHEREAS, WorldCom is offering (the "Offer"), upon the terms and
subject to the conditions set forth in the Prospectus and Consent Solicitation
(together, the "Prospectus") dated ______, 1997 and the accompanying Letter of
Transmittal and Consent, to exchange (the "Exchange") [$ ] principal
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amount of its 8-7/8% Senior Notes due January 15, 2006 ("WorldCom 2006 Notes")
for each $1,000 principal amount at Stated Maturity of outstanding Notes;
WHEREAS, Section 8(b) of the First Supplement provides that the
Company, when authorized by a Board Resolution, may with the consent of the
Holders of not less than a majority in principal amount at Stated Maturity of
the Outstanding Notes, and subject to Section 903 of the Original Indenture, the
Trustee shall enter into an indenture or indentures supplemental to the Original
Indenture, in form satisfactory to the Trustee, to add any provisions to or
change in any manner or eliminate any of the provisions of the Indenture or
modify in any manner the rights of the Holders of Notes, except with respect to
certain matters set forth therein, [and except that the consent of Holders of
not less than 75% in principal amount at Stated Maturity of the Outstanding
Notes is required to make any amendment to Section 5(r) of the First Supplement
and the definition of "Change of Control"];/1/
WHEREAS, Holders of Notes who tender their Notes pursuant to the Offer
will be deemed, as a condition to a valid tender, to have given their consent to
certain proposed amendments to the Indenture as described in the Prospectus;
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/1/ Bracketed language will be included in this supplemental indenture only if
a Supermajority Consent is obtained by WorldCom in connection with the
Offer and the Exchange.
WHEREAS, as a condition to the Exchange, Holders of a majority in
aggregate principal amount of Outstanding Notes must have consented (the
"Requisite Consent") to amend the Indenture as described in the Prospectus;
[WHEREAS, with respect to the modification of the term "Change in
Control," the Holders of 75% of the aggregate principal amount of Outstanding
Notes must have consented to such modification (the "Supermajority
Consent");]/1/
WHEREAS, the Board of Directors of the Company has authorized the
execution of this Second Supplement and its delivery to the Trustee; and
WHEREAS, all acts and things necessary, including the receipt of the
Requisite Consent [and the Supermajority Consent]/1/, to make this Second
Supplement the valid, binding and legal obligation of the Company in accordance
with its terms have been done.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
Section 101. Definitions. Except as otherwise expressly provided
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herein, capitalized terms used herein shall have the meanings ascribed to them
in the Indenture.
Section 102. Amendment of First Supplement.
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(a) Section 5(e) (Limitation on Debt) of the First Supplement is
hereby amended and restated in its entirety to read as follows:
"Intentionally omitted."
(b) Section 5(f) (Limitation of Debt and Preferred Stock of Restricted
Subsidiaries) of the First Supplement is hereby amended and restated in its
entirety to read as follows:
"Intentionally omitted."
(c) Section 5(g) (Limitation on Liens) of the First Supplement is
hereby amended and restated in its entirety to read as follows:
"Intentionally omitted."
(d) Section 5(h) (Limitation on Sale and Leaseback Transactions) of
the First Supplement is hereby amended and restated in its entirety to read as
follows:
"Intentionally omitted."
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/1/ Bracketed language will be included in this supplemental indenture only if
a Supermajority Consent is obtained by WorldCom in connection with the
Offer and the Exchange.
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(e) Section 5(i) (Limitations on Restricted Payments) of the First
Supplement is hereby amended and restated in its entirety to read as follows:
"Intentionally omitted."
(f) Section 5(j) (Limitation on Dividends and Other Payment
Restrictions Affecting Restricted Subsidiaries) of the First Supplement is
hereby amended and restated in its entirety to read as follows:
"Intentionally omitted."
(g) Section 5(k) (Limitations on Issuance and Sale of Capital Stock of
Restricted Subsidiaries) of the First Supplement Indenture is hereby amended and
restated in its entirety to read as follows:
"Intentionally omitted."
(h) Section 5(m) (Transactions with Affiliates) of the First
Supplement is hereby amended and restated in its entirety to read as follows:
"Intentionally omitted."
(i) Section 5(n) (Provision of Financial Information) of the First
Supplement is hereby amended and restated in its entirety to read as follows:
"Intentionally omitted."
(j) Section 4(a) (Events of Default) of the First Supplement is hereby
amended and restated in its entirety to read as follows:
"Each of the following is an "Event of Default" whenever used with
respect to the Notes (whatever the reason for such Event of Default and whether
or not it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Note, when such
interest becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Note when it becomes due and payable at its Maturity; or
(3) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture with respect to any Note (other than a
covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with), and continuance of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount
of the
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Outstanding Notes a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(4) a default under any bond, debenture, note or other evidence of
indebtedness of the Company or under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any indebtedness of the Company (including this Indenture),
whether such indebtedness now exists or shall hereafter be created, which
default shall constitute a failure to pay an aggregate principal amount
exceeding $50,000,000 of such indebtedness when due and payable after the
expiration of any applicable grace period with respect thereto and shall
have resulted in such indebtedness in an aggregate principal amount
exceeding $50,000,000 becoming or being declared due and payable prior to
the date on which it would otherwise have become due and payable, without
such indebtedness having been discharged, or such acceleration having been
rescinded or annulled, within a period of 10 days after there shall have
been given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 10% in
principal amount of the Outstanding Securities of that series a written
notice specifying such default and requiring the Company to cause such
indebtedness to be discharged or cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default" hereunder;
provided, however, that if such default under such bond, debenture, note,
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mortgage, indenture or other instrument or evidence of indebtedness shall
be remedied or cured by the Company or waived pursuant to such agreement or
instrument, then, unless the Stated Maturity of the Notes shall have been
accelerated as provided herein, the Event of Default hereunder by reason
thereof shall be deemed likewise to have been thereupon remedied, cured or
waived without further action upon the part of either the Trustee or the
Holders; or
(5) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
or
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case,
(B) appoints a Custodian of the Company or for all or
substantially all of its property, or
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(C) orders the liquidation of the Company,
and, in any such case, such 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 other similar official under any Bankruptcy
Law."
(k) The first paragraph of Section 4(b) of the First Supplement is
hereby amended and restated in its entirety to read as follows:
"If an Event of Default occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in principal amount at
Stated Maturity of the Outstanding Notes may declare the Default Amount of all
the Notes to be due and payable immediately by a notice in writing to the
Company (and to the Trustee if given by the Holders), and upon any such
declaration such Default Amount shall become immediately due and payable."
[(l) The definition of "Change of Control" contained in Section 1(d)
of the First Supplement is hereby amended and restated in its entirety to read
as follows:/*/
"Change of Control" means the occurrence of any 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), other than WorldCom, Inc., a Georgia corporation
("WorldCom"), or its Affiliates or an underwriter engaged in a firm commitment
underwriting on behalf of the Company, is or becomes the "beneficial owner" (as
such term is used in Rules 13d-3 and13d-5 under the Exchange Act) plus all
shares that such person or group has the right to acquire, whether such right is
exercisable immediately or only after a passage of time, directly or indirectly,
of more than 50 percent of the total voting power of the Voting Stock of the
Company and, in addition, beneficially owns more shares in the Company than
beneficially owned by WorldCom and the Employee Group; or
(b) the Company sells, conveys, transfers or leases (either in one
transaction or a series of related transactions) all or substantially all of its
assets to a Person other than an Affiliate."]/2/
Section 103. Construction with Indenture. All of the covenants,
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agreements and provisions of this Second Supplement shall be deemed to be and
construed as part of the Indenture to the same extent as if fully set forth
verbatim therein and shall be fully enforceable in the manner provided in the
Indenture. Except as provided in this Second Supplement, the Indenture shall
remain in full force and effect and the terms and conditions thereof are hereby
confirmed.
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/*/ This Section 102(l) will be included in this supplemental indenture only if
a Supermajority Consent is obtained by WorldCom in connection with the
Offer and the Exchange.
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Section 104. Conflict with Trust Indenture Act. If any provision
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hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act that is required under such Act to be part of and govern the Indenture or
this Second Supplement, the latter provision shall control. If any provision
hereof modifies or excludes any provision of the Trust Indenture Act that may be
so modified or excluded, the latter provision shall be deemed to apply to this
Second Supplement as so modified or to be excluded, as the case may be.
Section 105. Effect of Headings. The Section headings herein are for
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convenience only and shall not affect the construction hereof.
Section 106. Separability Clause. In case any provision in this
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Second Supplement shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
Section 107. Benefit of Second Supplement and Indenture. Nothing in
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this Second Supplement or the Indenture or in 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 of Notes, any benefit or any
legal or equitable right, remedy or claim under this Second Supplement or the
Indenture. Neither this Second Supplement nor the Indenture may be used to
interpret another indenture, loan agreement or debt agreement of the Company or
any of its Subsidiaries. No such other indenture or loan or debt agreement may
be utilized to interpret this Second Supplement or the Indenture.
Section 108. Governing Law. This Second Supplement shall be governed
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by and construed in accordance with the laws of the State of New York, as
applied to contracts made and performed within the State of New York, without
regard to principles of conflicts of law. The Company hereby irrevocably
submits to the jurisdiction of any New York state court sitting in the Borough
of Manhattan in The City of New York or any Federal court sitting in the Borough
of Manhattan in The City of New York in respect of any suit, action or
proceeding arising out of or relating to this Second Supplement, and irrevocably
accepts for itself and in respect of its Property, generally and
unconditionally, jurisdiction of the aforesaid courts. The Company irrevocably
waives, to the fullest extent that it may effectively do so under applicable
law, trial by jury and any objection which it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding brought in any such
court and any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum. Nothing herein shall affect
the right of the Trustee or any Holder of the Notes to serve process in any
other manner permitted by law or to commence legal proceedings or otherwise
proceed against the Company in any other jurisdiction.
Section 109. No Recourse Against Others. A director, officer,
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employee, stockholder or incorporator, as such, of the Company shall not have
any liability for any obligations of the Company under this Second Supplement or
for any claim based on, in respect or by reason of such obligations or their
creation.
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Section 110. Duplicate Originals. All parties may sign any number of
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copies or counterparts of this Second Supplement. Each signed copy or
counterpart shall be an original, but all of them together shall represent the
same agreement.
Section 111. Effectiveness. This Second Supplement shall become
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effective in accordance with the provisions of Article Nine of the Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplement to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
(SEAL) MFS COMMUNICATIONS COMPANY, INC.
By:____________________________________
Title:_________________________________
Attest:
_________________________
(SEAL)
IBJ XXXXXXXX BANK & TRUST COMPANY
By:____________________________________
Title:_________________________________
Attest:
_________________________
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STATE OF ____________ )
ss.:
COUNTY OF __________ )
On the ___ day of _____, 1997, before me personally came _________, to me
known, who, being by me duly sworn, did depose and say that he/she is the
______________ of MFS COMMUNICATIONS COMPANY, INC., one of the corporations
described in and which executed the foregoing instrument; that he/she knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation, and that he/she signed his/her name thereto by like authority.
_______________________________
STATE OF _____________ )
ss.:
COUNTY OF ___________ )
On the __ day of _____, 1997, before me personally came _____________, to
me known, who, being by me duly sworn, did depose and say that he/she is
_______________ of IBJ XXXXXXXX BANK & TRUST COMPANY, one of the corporations
described in and which executed the foregoing instrument; that he/she knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation, and that he/she signed his/her name thereto by like authority.
_______________________________
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