Exhibit 1.1
Execution Version
Sprint Corporation
Underwriting Agreement
(Debt Securities)
February 20, 2018
J.P. Morgan Securities
LLC
As Representative of the
several underwriters named
in
Schedule I
hereto
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Ladies and Gentlemen:
Sprint Corporation, a
Delaware corporation (the “
Company
”), proposes to issue and sell to the underwriters named in
Schedule I
hereto (the “
Underwriters
”), for whom you (the “
Representative
”) are acting as
representative, the principal amount and type of notes identified on
Schedule II
hereto (the “
Notes
”). The Notes will be guaranteed on a senior unsecured basis (the “
Guarantee
” and, together with the Notes,
the “
Securities
”) by Sprint Communications, Inc., a Kansas corporation (the “
Guarantor
”). The Securities will be issued pursuant to the indenture identified on
Schedule II
hereto (the “
Base
Indenture
”), between the Company and the trustee identified on
Schedule II
hereto (the “
Trustee
”), as supplemented by the supplemental indenture identified on
Schedule II
hereto (the “
Supplemental
Indenture
” and, together with the Base Indenture, the “
Indenture
”) to be executed among the Company, the Guarantor and the Trustee. Securities issued in book-entry form will be issued to Cede & Co., as nominee of
The Depository Trust Company (“
DTC
”), pursuant to a letter agreement, among the Company, the Trustee and DTC. To the extent that there are or are not additional Underwriters listed in
Schedule I
other than you, the term
“Underwriters” shall mean either the singular or plural, as the context requires.
As used herein, the term
“Agreement” means this underwriting agreement.
1.
Representations and Warranties of the Company and the Guarantor
. The
Company and the Guarantor, jointly and severally, represent and warrant to each of the Underwriters that as of the date hereof:
(a) The
Company has prepared and filed with the Securities and Exchange Commission (the “
Commission
”), not earlier than the date that is three years prior to the Closing Date (as defined herein), an “automatic shelf registration
statement” (as defined in Rule 405 under the Securities Act (as defined herein)) on Form
S-3
(File
No. 333-222977),
which contains a base prospectus to be used
in connection with the public offering and sale of the Securities. Such registration statement, as amended, including the exhibits and schedules thereto, in the form in which it became effective under the Securities Act of 1933, as amended, and the
rules
and regulations promulgated thereunder (collectively, the “
Securities Act
”), including any required information deemed to be a part thereof pursuant to Rule 430A, Rule 430B or,
if applicable, Rule 430C under the Securities Act, or the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “
Exchange Act
”), is called the “Registration
Statement.” Any preliminary prospectus relating to the Securities, including the base prospectus and any preliminary prospectus supplement thereto, included in the Registration Statement or as filed with the Commission pursuant to Rule 424(b)
of the rules and regulations of the Commission under the Securities Act and provided to the Representative for use by the Underwriters is hereinafter called a “preliminary prospectus.” The term “Prospectus” shall mean the final
prospectus relating to the Securities, including the base prospectus and the final prospectus supplement thereto, that is first filed with the Commission pursuant to Rule 424(b) and provided to the Representative for use by the Underwriters or, if
no filing pursuant to Rule 424(b) is required, shall mean the form of final prospectus relating to the Securities included in the Registration Statement at the effective date of the Registration Statement. The term “Statutory Prospectus”
shall mean any preliminary prospectus, as amended or supplemented, relating to the Securities that is included in the Registration Statement or filed with the Commission pursuant to Rule 424(b) immediately prior to the Initial Sale Time (as defined
herein), including any document incorporated by reference therein. Any reference herein to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form
S-3
under the Securities Act, as of the effective date of the Registration Statement or as of the date of such preliminary prospectus or Prospectus, as the case may be. Any
reference to any amendment or supplement to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the effective date of the Registration Statement, the date of such
preliminary prospectus or Prospectus, as the case may be, under the Exchange Act, and incorporated by reference in the Registration Statement, such preliminary prospectus or Prospectus, as the case may be. All references in this Agreement to the
Registration Statement, a preliminary prospectus, the Prospectus, or any amendments or supplements to any of the foregoing, shall include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
System (“
EDGAR
”).
(b) The Registration Statement became effective upon its filing with the Commission and no notice of
objection of the Commission to the use of such Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No stop order suspending the effectiveness of the
Registration Statement is in effect and no proceedings for such purpose or pursuant to Section 8A of the Securities Act are pending or, to the knowledge of the Company, are threatened by the Commission. Each preliminary prospectus and the
Prospectus, when filed, complied in all material respects with the Securities Act. Each of the Registration Statement and any post-effective amendment thereto, at the time it became effective and at the date hereof, complied and will comply in all
material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder (the “
Trust Indenture Act
”) and did not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus, as amended or supplemented, as of its date, at the date hereof, at the time of any filing
pursuant to Rule 424(b) and at the Closing Date, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order
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to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties set forth in the two immediately preceding
sentences do not apply to (i) that part of the Registration Statement which constitutes the Statement of Eligibility and Qualification (“
Form
T-1
”) of the Trustee under the Trust
Indenture Act, or (ii) statements in or omissions from the Registration Statement or any post-effective amendment thereto, or the Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through the Representative expressly for use therein.
(c) The documents
incorporated by reference in the Registration Statement, the Disclosure Package (as defined herein) and the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and any further documents so filed and incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable.
(d) The term “Disclosure Package” shall mean (i) the Statutory Prospectus, (ii) any “issuer free writing
prospectus,” as defined in Rule 433 of the Securities Act, if any, identified in
Schedule III
hereto (together with any other issuer free writing prospectus used in connection with the offering, an “
Issuer Free Writing
Prospectus
”), which shall include the term sheet prepared pursuant to Section 4(a) of this Agreement substantially in the form attached in
Schedule IV
hereto (the “
Final Term Sheet
”), and (iii) any other
free writing prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package and which is listed in
Schedule III
hereto, if published prior to the execution hereof. As of 4:00 p.m.
(Eastern time) on the date of this Agreement (the “
Initial Sale Time
”), the Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to
the Company by any Underwriter through the Representative specifically for use therein.
(e) (i) The Company and the Guarantor have not
made, and will not make, any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus without the prior consent of the Representative (which consent being deemed to have been given with respect to (A) the Final
Term Sheet prepared and filed pursuant to Section 4(a) hereof and (B) any other Issuer Free Writing Prospectus identified on
Schedule III
hereto); (ii) each Issuer Free Writing Prospectus conformed or will conform in all material
respects to the requirements of the Securities Act on the date of first use, and the Company and the Guarantor have complied with any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to Rule 433 under the Securities
Act; (iii) each Issuer Free Writing Prospectus will not, as of its issue date and through the completion of Underwriters’ distribution of the Securities, include any information that conflicts with the information contained in the
Registration Statement, the Statutory Prospectus and the Prospectus; and (iv) each Issuer Free Writing Prospectus, when considered together with the other information contained in the Disclosure Package, did not, as
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of the Initial Sale Time, does not, as of the date hereof, and will not, as of the Closing Date, contain any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) The Company is not an “ineligible issuer” and is a “well-known seasoned issuer,” in each case as defined under the
Securities Act, in each case at the times specified in the Securities Act in connection with the offering of the Securities.
(g) The
Company and the Guarantor have not distributed and will not distribute, prior to the latter of the Closing Date and completion of the Underwriters’ distribution of the Securities, any offering materials in connection with the offering and sale
of the Securities other than a preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus included in
Schedule III
to this Agreement and any other Issuer Free Writing Prospectus reviewed and consented to by the Representative,
or the Registration Statement.
(h) The Company and the Guarantor have been duly incorporated, are validly existing and in good standing
under the laws of their respective jurisdictions of incorporation, have the corporate power and authority to own their property and to conduct their business as described in the Registration Statement, the Disclosure Package and the Prospectus and
are duly qualified to transact business and are in good standing in each jurisdiction in which the conduct of their business or their ownership or leasing of property requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the condition, financial or otherwise, or on the earnings, business, operations or prospects of the Company and
its subsidiaries, taken as a whole (a “
Material Adverse Effect
”).
(i) The execution and delivery by the Company and the
Guarantor of this Agreement and the Securities, and the performance by the Company and the Guarantor of their obligations under this Agreement, the Indenture and the Securities will not, and the execution and delivery by the Company and the
Guarantor of the Base Indenture and the Supplemental Indenture, as applicable, did not and will not, respectively, contravene any provision of (i) applicable law, (ii) the organizational documents of the Company or the Guarantor or
(iii) any agreement or other instrument binding upon the Company, the Guarantor or any of their subsidiaries, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company, the Guarantor or any
of their subsidiaries, except with respect to subclauses (i) and (iii) of this Section 1(i) where any such contraventions, would not reasonably be expected to have, individually or in the aggregate, would not have a Material Adverse
Effect.
(j) No consent, approval, authorization or order of, or qualification with, any governmental body or agency (each, an
“
Authorization
”) is required for execution and delivery of this Agreement, the Supplemental Indenture and the Securities and the performance by the Company and the Guarantor of their obligations under this Agreement, the Indenture
or the Securities, or was required for the execution and delivery of the Base Indenture, except such as may be required by the securities or “blue sky” laws of the various states or as have been obtained under the Securities Act and the
Trust Indenture Act in connection with the offer and sale of the Securities, except where the failure to obtain any such Authorizations would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and would
not otherwise prevent the consummation of the transactions contemplated by this Agreement.
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(k) Except as otherwise disclosed in the Registration Statement, the Disclosure Package and the
Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package or the Prospectus, there has not occurred any material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or in the earnings, business, operations or prospects of the Company and its subsidiaries, taken as a whole (a “
Material Adverse Change
”).
(l) There are no legal or governmental proceedings pending or, to the knowledge of the Company and the Guarantor, threatened to which the
Company or any of its subsidiaries is a party that are required to be described in the Registration Statement, the Disclosure Package or the Prospectus that are not so described.
(m) Neither the Company nor any of its subsidiaries is (i) in violation of its organizational documents or (ii) in violation of any
law or any rule, regulation, order or decree of any governmental agency or body or court having jurisdiction over the Company or any of its subsidiaries or its respective property or assets and (iii) neither the Company nor any of its
subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any agreement or other instrument binding upon the Company or any of its subsidiaries, except with respect to clauses
(ii) and (iii) for such violations or defaults that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(n) Except as described in the Registration Statement, the Disclosure Package and the Prospectus, the Company and its consolidated subsidiaries
have all necessary consents, approvals, certificates, authorizations, permits and orders of the appropriate governmental or regulatory agencies or bodies as are necessary to own their properties and to conduct their business as currently conducted
by them as described in the Registration Statement, the Disclosure Package and the Prospectus except where the failure to do so would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(o) This Agreement has been duly authorized, executed and delivered by the Company and the Guarantor.
(p) The Base Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or similar laws relating to or affecting creditors’ rights generally and by general
equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). The Base Indenture has been qualified under the Trust Indenture Act.
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(q) The Supplemental Indenture has been duly authorized by the Company and the Guarantor and on
the Closing Date will be duly executed and delivered by the Company and the Guarantor and, when duly executed and delivered in accordance with its terms by each of the parties thereto, will be a valid and binding agreement of the Company and the
Guarantor enforceable against the Company and the Guarantor in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or similar laws relating to or affecting creditors’ rights
generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(r) The Notes have been duly authorized by the Company and, when executed by the Company and authenticated by the Trustee in accordance with
the Indenture and delivered to the Underwriters against payment therefor in accordance with the terms of this Agreement, will be validly issued and delivered, and will constitute valid and binding obligations of the Company entitled to the benefits
of the Indenture and enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of
creditors’ rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law), and the Indenture and the Securities conform, or will conform, to the description
thereof in the Registration Statement, the Disclosure Package and the Prospectus.
(s) The Guarantee has been duly authorized by the
Guarantor and, when the Notes have been duly executed, authenticated by the Trustee in accordance with the Indenture and delivered to the Underwriters against payment therefor in accordance with the terms of this Agreement, will constitute a valid
and binding obligation of the Guarantor entitled to the benefits of the Indenture and enforceable against the Guarantor in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other
similar laws relating to or affecting the enforcement of creditors’ rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law), and the Guarantee conforms,
or will conform, to the description thereof in the Registration Statement, the Disclosure Package and the Prospectus.
(t) Each of the
Company and the Guarantor is not, and after giving effect to the offering of the Securities and the application of the proceeds therefrom as described under “Use of Proceeds” in each of the Registration Statement, the Disclosure Package
and the Prospectus will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(u) Neither the Company nor any of its subsidiaries has taken, directly or indirectly, any action designed to cause or result in, or which
might cause or result in, the stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities.
(v) The Company maintains a system of internal control over financial reporting (as such term is defined in Rule
13a-15(f)
of the Exchange Act) that complies with the requirements of the Exchange Act and has been designed by the Company’s principal executive officer and principal financial officer, or under their
supervision, to provide reasonable assurance
6
regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. The Company’s
internal control over financial reporting is effective and the Company is not aware of any material weaknesses in its internal control over financial reporting.
(w) The Company maintains disclosure controls and procedures (as such term is defined in Rule
13a-15(e)
of the Exchange Act) that comply with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure that material information relating to the Company and its subsidiaries is made known to the
Company’s principal executive officer and principal financial officer by others within those entities; and such disclosure controls and procedures are effective.
(x) On and immediately after the Closing Date, the Company and the Guarantor (after giving effect to the issuance of the Securities and the
other transactions related thereto as described in each of the Registration Statement, the Disclosure Package and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date and
entity, that on such date (i) the present fair market value (or present fair saleable value) of the assets of such entity is not less than the total amount required to pay the liabilities of such entity on its total existing debts and
liabilities (including contingent liabilities) as they become absolute and matured; (ii) such entity is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become
due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Disclosure Package and the Prospectus, such entity is not incurring debts or liabilities beyond its
ability to pay as such debts and liabilities mature; (iv) such entity is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small
capital after giving due consideration to the prevailing practice in the industry in which such entity is engaged; and (v) such entity is not a defendant in any civil action that would result in a judgment that such entity is or would become
unable to satisfy.
(y) Neither the Company nor any of its subsidiaries or, to the knowledge of the Company or the Guarantor, any director,
officer, agent or employee of the Company or any of its subsidiaries has (i) used corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect
unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977; (iv) violated or is in violation of any provision
of the Bribery Act 2010 of the United Kingdom or (v) made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
(z) The operations of the Company and its subsidiaries are and have been conducted at all times in compliance in all material respects with the
requirements of applicable anti-money laundering laws, including, but not limited to, the Bank Secrecy Act of 1970, as amended by the USA PATRIOT ACT of 2001, and the rules and regulations promulgated thereunder, and the anti-money laundering laws
of the various jurisdictions in which the Company and its subsidiaries conduct business (collectively, the “
Anti-Money Laundering Laws
”) and no action, suit or proceeding by or before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company or the Guarantor, overtly threatened.
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(aa) Neither the Company nor any of its subsidiaries or, to the knowledge of the Company or the
Guarantor, any director, officer, agent or employee of the Company or any of its subsidiaries is currently the subject or the target of any sanctions administered or enforced by the U.S. Government, including the Office of Foreign Assets Control of
the U.S. Department of the Treasury, or other relevant sanctions authority (collectively, “
Sanctions
”), and the Company will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend,
contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person, or in any country or territory, that, at the time
of such funding, is the subject or the target of Sanctions or (ii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise)
of Sanctions.
2.
Offering
. You have advised the Company that the Underwriters intend (i) to make a public offering of their
respective portions of the Securities and (ii) to offer the Securities upon the terms set forth in the Prospectus.
3.
Purchase and
Delivery
. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to sell to the several Underwriters and each Underwriter agrees to purchase,
severally and not jointly, from the Company, the respective principal amount of Securities set forth opposite such Underwriter’s name on
Schedule I
hereto at a purchase price of 98.75% of the principal amount thereof. The closing (the
“
Closing
”) of the purchase and sale of the Securities shall be at the offices of Simpson Thacher & Bartlett LLP, New York, New York (or such other place as may be agreed upon by the Company and the Representative).
The Company will deliver, against payment of the purchase price, the Securities in the form of one or more permanent global securities in
definitive form (the “
Global Securities
”) deposited with the Trustee as custodian for DTC and registered in the name of Cede & Co. as nominee for DTC. Interests in any permanent Global Securities will be held only in
book-entry form through DTC, except in the limited circumstances described in the Prospectus. Payment for the Securities shall be made by the Underwriters by wire transfer of immediately available funds to an account specified by the Company on
February 22, 2018 at 10:00 a.m. or such other date and time as the Underwriters and the Company may agree in writing (the “
Closing Date
”), against delivery to the Trustee as custodian for DTC of the Global Securities
representing all of the Securities.
4.
Covenants of the Company and the Guarantor
. The Company and the Guarantor jointly and
severally covenant and agree with the Underwriters as follows:
(a) The Company will (i) prepare and file the Prospectus in a form
reasonably approved by you pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the date of this
8
Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3); (ii) make no further amendment or any supplement to the Registration Statement or the Prospectus prior to
the Closing Date which shall be reasonably disapproved by you promptly after notice thereof; (iii) advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes
effective or any amendment or supplement to the Prospectus has been filed and furnish you with copies thereof; (iv) file promptly all other materials required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act;
(v) advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus
or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for any such purpose or pursuant to Section 8A of the Securities Act, or of any request by
the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information, or of any objection of the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; (vi) in the event of the issuance of any stop order or of any order preventing or suspending the use of any preliminary prospectus, the Prospectus or any
Issuer Free Writing Prospectus or suspending any such qualification, promptly use its best efforts to obtain the withdrawal of such order; and (vii) prepare the Final Term Sheet, substantially in the form of
Schedule IV
hereto and
approved by the Representative, and file the Final Term Sheet pursuant to Rule 433(d) under the Securities Act within the time period prescribed by such rule.
(b) During the time when a Prospectus relating to the Securities is required to be delivered under the Securities Act (including in
circumstances where such requirement may be satisfied pursuant to Rule 172) (the “
Prospectus Delivery Period
”), the Company will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of
the Exchange Act in the manner and within the time periods required by the Exchange Act.
(c) If, during the Prospectus Delivery Period,
any event or development shall occur or condition exist as a result of which the Disclosure Package or the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Registration Statement, the Disclosure Package or the Prospectus to comply with the
Securities Act, the Company will (i) notify you to suspend the solicitation of offers to purchase the Securities; and (ii) promptly prepare and, subject to Section 4(a) hereof, file with the Commission an amendment or supplement which
will correct such statement or omission, or an amendment which will effect such compliance.
(d) During the Prospectus Delivery Period,
upon your request the Company will furnish to you, without charge, copies of the Registration Statement, including all exhibits, the Prospectus and all amendments and supplements to such documents, including documents incorporated by reference
therein, in each case as soon as reasonably practicable and in quantities as are reasonably requested.
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(e) The Company will cooperate with you and with counsel for the Underwriters in connection with
the qualification of the Securities for sale under the laws of such jurisdictions as you may reasonably designate and will take such actions as are reasonably necessary to maintain such qualifications in effect so long as required for the
distribution of the Securities;
provided
,
however
, that in no event shall either the Company or the Guarantor be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would
subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(f) For a period of 30 days after the date hereof, the Company will not, without the prior consent of the Representative, offer, sell or
contract to sell, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition by the Company or any affiliate of the Company) directly or indirectly, or announce the
offering of, any debt securities issued or guaranteed by the Company that are substantially similar to the Securities (other than the Securities, short-term commercial paper and similar debt instruments in the ordinary course of business, exchanges
of debt securities for other debt securities with existing debtholders, and issuances of securities pursuant to prior contractual commitments).
(g) The Company and the Guarantor, jointly and severally, will pay the costs and expenses relating to the following matters: (i) the
preparation, printing and filing with the Commission of the Registration Statement, any preliminary prospectus, any Issuer Free Writing Prospectus and the Prospectus, and all amendments and supplements to any of them and the delivery of such copies
thereof, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (ii) the preparation, issuance and delivery of certificates for the Securities; (iii) the printing and delivery of
this Agreement, any “blue sky” memorandum and all other agreements or documents printed and delivered in connection with the offering of the Securities; (iv) any fees charged by securities rating services for rating the Securities;
(v) any registration or qualification of the Securities for offer and sale under the securities or “blue sky” laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters
relating to such registration and qualification); (vi) any filings required to be made with the Financial Industry Regulatory Authority, Inc. in connection with any review of the terms of the sale of the Securities (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating to such filings); (vii) the fees and expenses of the Trustee; (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection
with presentations to prospective purchasers of the Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other
costs and expenses incident to the performance by the Company of its obligations under this Agreement.
(h) As soon as reasonably
practicable, the Company will make available to its security holders an earnings statement, which will satisfy the provisions of Section 11(a) and Rule 158 under the Securities Act.
(i) The Company will pay the required Commission filing fees relating to the Securities within the time period required by Rule 456(b)(1) under
the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act.
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(j) If at any time when Securities remain unsold by the Underwriters the Company receives from
the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representative, (ii) promptly file a new registration
statement or post-effective amendment on the proper form relating to the Securities, in a form satisfactory to the Representative, (iii) use its best efforts to cause such registration statement or post-effective amendment to be declared
effective and (iv) promptly notify the Representative of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Securities to continue as contemplated in the
registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible. References herein to the Registration Statement shall include such new registration statement or post-effective
amendment, as the case may be.
(k) The Company agrees that if at any time following issuance of an Issuer Free Writing Prospectus any
event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Disclosure Package or the Prospectus or would include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company will give prompt notice thereof to the Representative and, if requested by the
Representative, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission.
5.
Covenants of the Underwriters
. In further consideration of the agreements of the Company and the Guarantor herein contained, each
Underwriter severally covenants as follows:
(a) Not to take any action that would result in the Company being required to file with the
Commission under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
(b) Not to use, refer to or distribute any free writing prospectus except:
(i) a free writing prospectus that (a) is not an Issuer Free Writing Prospectus and (b) either (x) contains only information
describing the preliminary or final terms of the Securities or the offering thereof, which information is limited to the categories of terms referenced on
Schedule IV
hereto or otherwise permitted under Rule 134 of the Securities Act or
(y) would not trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule 433;
(ii) a free
writing prospectus as shall be agreed in writing with the Company that is not distributed, used or referred to by such Underwriter in a manner reasonably designed to lead to its broad unrestricted dissemination (unless the Company consents in
writing to such dissemination); or
(iii) a free writing prospectus identified in
Schedule III
hereto as forming part of the
Disclosure Package.
11
(c) Notwithstanding the foregoing, the Underwriters may use the information contained in a term
sheet substantially in the form of
Schedule IV
hereto without the consent of the Company.
6.
Conditions to Closing
. The
obligations of the Underwriters under this Agreement to purchase the Securities will be subject to the following conditions:
(a) No stop
order suspending the effectiveness of the Registration Statement or of any post-effective amendment to the Registration Statement shall be in effect and no proceedings for such purpose pursuant to Rule 401(g)(2) under the Securities Act or pursuant
to Section 8A of the Securities Act against the Company or related to the offering shall have been instituted or threatened by the Commission.
(b) The representations and warranties of the Company and the Guarantor contained herein shall be true and correct on the date hereof and on
and as of the Closing Date; and the statements of the Company, the Guarantor and their respective officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date.
(c) You shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of each of the Company
and the Guarantor, to the effect that (i) the representations and warranties of the Company and the Guarantor contained in this Agreement are true and correct as of the Closing Date, (ii) that no stop order suspending the effectiveness of
the Registration Statement or of any post-effective amendment to the Registration Statement shall be in effect and no proceedings for such purpose pursuant to Rule 401(g)(2) under the Securities Act or pursuant to Section 8A of the Securities
Act against the Company or related to the offering shall have been instituted or threatened by the Commission, and (iii) that the Company and the Guarantor have complied in all material respects with all of the agreements and satisfied all of
the conditions on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon his or her knowledge as to proceedings threatened.
(d) You shall have received on the Closing Date a letter from Jones Day, counsel for the Company, dated the Closing Date, including the
opinions and views substantially in the form set forth in
Schedule V
.
(e) You shall have received on the Closing Date an opinion of
special Kansas counsel, dated the Closing Date, substantially in the form set forth in
Schedule VI
.
(f) You shall have received on
the Closing Date an opinion of counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to you.
(g) You shall have received from Deloitte & Touche LLP, the Company’s independent registered public accounting firm, a letter,
dated the date hereof, addressed to the Underwriters, in form and substance satisfactory to you.
12
(h) You shall have received from an officer of the Company with responsibility for accounting
matters with respect to the Company, a certificate, dated the date hereof, in form and substance satisfactory to you, relating to the financial information of the predecessor of the Company incorporated by reference in the Registration Statement,
the Disclosure Package and the Prospectus.
(i) On the Closing Date, you shall have received from Deloitte & Touche LLP, the
Company’s independent registered public accounting firm, a letter, dated the Closing Date, in form and substance satisfactory to you, to the effect that it reaffirms the statements made in the letter furnished by such firm pursuant to
subsection (g) of this Section 6.
(j) For the period from and after the date hereof and prior to the Closing Date, there shall
not have occurred any:
(i) Material Adverse Change, except as set forth or contemplated in the Disclosure Package and the Prospectus
(exclusive of any amendment or supplement thereto), which, in the judgment of the Representative, makes it impractical or inadvisable to proceed with the offering or delivery of the Securities; or
(ii) downgrading in the rating accorded any debt securities of the Company by any “nationally recognized statistical rating
organization,” as such term is defined for purposes of Section 3(a)(62) of the Exchange Act, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the
direction of the possible change.
(k) The Company shall have filed any preliminary prospectus and the Prospectus with the Commission
within the time period required by Rule 424(b) under the Securities Act and shall have paid the registration fee associated with the offering of the Securities.
(l) The Securities shall be eligible for clearance and settlement through DTC.
(m) On or before the Closing Date, you shall have received such additional documents as you may reasonably request to confirm compliance with
the conditions to closing listed herein.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and
as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile
confirmed in writing.
7.
Indemnification and Contribution
. (a) The Company and the Guarantor, jointly and severally, agree to
indemnify and hold harmless each Underwriter, the directors, officers, employees and affiliates of each Underwriter and each person who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act,
13
against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement, or alleged untrue statement, of a material
fact contained in the Registration Statement or any amendment thereto, or the omission or alleged omission to state therein a material fact required to be stated therein necessary to make the statements therein not misleading; or (ii) any
untrue statement, or alleged untrue statement, of a material fact contained in any preliminary prospectus relating to the offering of the Securities, the Disclosure Package or the Prospectus, or any amendment or supplement thereto, or any Issuer
Free Writing Prospectus, or the omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action;
provided
,
however
, that the Company
and the Guarantor will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representative specifically for inclusion therein.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Company and the Guarantor, and each person who
controls the Company or the Guarantor within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, to the same extent as the foregoing indemnity from the Company and the Guarantor to each Underwriter,
but only with reference to written information furnished to the Company by or on behalf of such Underwriter through the Representative specifically for inclusion in the documents referred to in the foregoing indemnity, it being understood and agreed
that the only such information consists of the following paragraphs in the Registration Statement, the Disclosure Package and the Prospectus: under the heading “Underwriting,” the first paragraph under the
sub-heading
“Commissions and discounts,” the third sentence of the paragraph under the
sub-heading
“New issue of notes,” the paragraph under the
sub-heading
“Short positions,” and the third and fourth sentences of the first paragraph under the
sub-heading
“Other relationships.”
(c) Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will
not relieve it from liability under subsection (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and
(ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in subsection (a) or (b) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of
14
any separate counsel retained by the indemnified party or parties except as set forth below);
provided
,
however
, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ one separate counsel (plus local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party, and the indemnified party shall have reasonably concluded that there may be legal defenses available to it
or any other indemnified party which are different from or additional to those available to the indemnifying party, (iii) the employment thereof has been specifically authorized by the indemnifying party in writing or (iv) the indemnifying
party has failed to assume the defense of such action and employ counsel reasonably satisfactory to the indemnified party within a reasonable time after notice of the existence of the action, provided the indemnifying party will not be required to
pay the fees, costs and expenses of more than one separate counsel (in addition to any local counsel in the jurisdiction in which any such action is brought) for all indemnified parties hereunder, unless the indemnified parties have concluded that
there are legal defenses available to an indemnified party that are different or additional to those available to any other indemnified party, in which case any indemnified party with different or additional defenses shall have the right to separate
counsel from the other indemnified parties to assert such legal defenses on behalf of such indemnified party. Any such separate firm for any Underwriter, directors, officers, employees and affiliates of each Underwriter and any person who controls
any Underwriter shall be designated in writing by the Representative and any such separate firm for the Company, the Guarantor and any person who controls the Company or the Guarantor shall be designated in writing by the Company. An indemnifying
party will not, without the prior written consent of the indemnified party, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent (i) includes an unconditional release of the indemnified
party from all liability arising out of such claim, action, suit or proceeding, provided that such unconditional release may be subject to a parallel release by a claimant or plaintiff of such indemnified party and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) In the event that
the indemnity provided in paragraph (a) or (b) of this Section 7 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Guarantor, jointly and severally agree and the Underwriters
severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively “
Losses
”) to which the
Company and the Guarantor and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantor on the one hand and by the Underwriters on the other from
the offering of the Securities. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Guarantor and the Underwriters severally shall contribute in such proportion as is appropriate to
reflect not only such relative benefits, but also the relative fault of the Company and the Guarantor on the one hand and of the Underwriters on
15
the other in connection with the statements or omissions which resulted in such Losses, as well as any other relevant equitable considerations. Benefits received by the Company and the Guarantor
shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by them, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each
case as set forth on the cover page of the Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or any omission or alleged omission to state a
material fact relates to information provided by the Company and the Guarantor on the one hand or the Underwriters on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company, the Guarantor and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of this Subsection (d), no Underwriter should be required to contribute any amount in excess of the amount of underwriting discounts and commissions received by it.
Notwithstanding the provisions of this subsection (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each person who controls an Underwriter within the meaning of either the Securities Act or the Exchange Act, and each director, officer, employee, affiliate and agent of an
Underwriter, shall have the same rights to contribution as such Underwriter, and each person who controls the Company or the Guarantor within the meaning of either the Securities Act or the Exchange Act, and each director, officer, employee,
affiliate and agent of the Company and the Guarantor, shall have the same rights to contribution as the Company and the Guarantor, subject in each case to the applicable terms and conditions of this subsection (d). The Underwriters’ obligations
to contribute hereunder are several in proportion to their respective purchase obligations hereunder and not joint.
8.
Termination
.
(a) Prior to the Closing Date, this Agreement shall be subject to termination by the Representative, by notice given to the Company, if at any time (i) trading in the Company’s securities shall have been suspended or limited by the
Commission or the New York Stock Exchange or trading in securities generally on the New York Stock Exchange, the Nasdaq stock market or in the
over-the-counter
market
shall have been suspended or limited, or minimum prices shall have been established on such exchange or market, (ii) a general banking moratorium shall have been declared either by federal or New York State authorities or there has occurred a
material disruption in commercial banking or securities settlement or clearance services or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other
calamity or crisis, the effect of which on financial markets is such as to make it, in the sole judgment of the Representative, impractical or inadvisable to proceed with the offering, sale or delivery of the Securities as contemplated by this
Agreement, the Disclosure Package and the Prospectus.
(b) If this Agreement shall be terminated by the Underwriters because of any failure
or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform its obligations under this Agreement, the Company and the Guarantor
will jointly and severally reimburse the Underwriters for all
out-of-pocket
expenses (including the fees and disbursements of its counsel) reasonably incurred by the
Underwriters in connection with this Agreement or the offering contemplated hereunder.
16
9.
Defaulting Underwriters
. If, on the Closing Date, any one or more of the Underwriters
shall fail or refuse to purchase the Securities that it has or they have agreed to purchase hereunder on such date, and the aggregate number of Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is
not more than
one-tenth
of the aggregate number of the Securities to be purchased on the Closing Date, the other Underwriters shall be obligated severally in the proportions that the number of Securities set
forth opposite their respective names in
Schedule I
bears to the aggregate number of Securities set forth opposite the names of all such
non-defaulting
Underwriters, or in such other proportions as you
may specify, to purchase the Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on the Closing Date;
provided
that in no event shall the number of Securities that any Underwriter has agreed
to purchase pursuant to this Agreement be increased pursuant to this Section 9(a) by an amount in excess of
one-ninth
of such number of Securities without the written consent of such Underwriter. If, on
the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than
one-tenth
of the
aggregate number of Securities to be purchased, and arrangements satisfactory to you and the Company for the purchase of such Securities are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of
any
non-defaulting
Underwriter or the Company. In any such case, either you or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or in any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any
default of such underwriting under this Agreement.
10.
Representations and Indemnities to Survive
. The respective agreements,
representations, warranties, indemnities and other statements of the Company, the Guarantor and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or the Company, the Guarantor or any of the officers, directors, employees, affiliates or controlling persons, and will survive delivery of and payment for the Securities or any termination of this Agreement.
11.
No Fiduciary Duty
. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this
Agreement is an
arm’s-length
commercial transaction between the Company and the several Underwriters, (ii) in connection therewith and with the process leading to such transaction each Underwriter is
acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory or fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading
thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) it has consulted
its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty
to the Company, in connection with such transaction or the process leading thereto.
17
12. Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot Act
(Title III of Pub. L.
107-56
(signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company,
which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
13.
Miscellaneous
. (a) This Agreement may be signed in any number of counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same instrument.
(b) Any notice or communication shall be sufficiently
given if in writing and delivered in person, mailed by first class mail or sent by telecopier transmission addressed as follows:
If to
the Company or the Guarantor:
Sprint Corporation
Sprint Parkway
Overland Park,
Kansas 66251
Facsimile No.: (913)
523-9802
Attn: General Counsel
If to
the Representative:
J.P. Morgan Securities LLC
383 Madison Avenue
New York,
New York 10179
Facsimile No.: (212)
270-1063
Attn: Lenny Carey
Any party
hereto by notice to the other may designate additional or different addresses for subsequent notices or communications.
(c) This Agreement
will inure to the benefit of and be binding upon the parties hereto and their respective successors, and the officers, directors, employees, affiliates and controlling persons referred to in Section 7 hereof, and no other person will have any
right or obligation hereunder. No purchaser of any of the Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.
(d) This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(e) Each of the parties hereto hereby waives any right to trial by jury in any suit or
proceeding arising out of or relating to this Agreement.
18
(f) The headings of the sections of this Agreement have been inserted for convenience of
reference only and shall not be deemed a part of this Agreement.
(g) No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
14.
Disclosure of Tax Treatment
. Notwithstanding anything herein to the contrary, the Company is authorized to disclose to any person
the U.S. federal and state income tax treatment and tax structure of the potential transaction and all materials of any kind (including tax opinions and other tax analyses) provided to the Company relating to that treatment and structure, without
the Underwriters imposing any limitation of any kind. For this purpose, “tax structure” is limited to any facts that may be relevant to that treatment.
[
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]
19
Please confirm your agreement to the foregoing by signing in the space provided below for that
purpose and returning to us a copy hereof whereupon this Agreement shall constitute a binding agreement between us.
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Very truly yours,
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SPRINT CORPORATION
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By:
|
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/s/ Janet M. Duncan
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Name:
|
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Janet M. Duncan
|
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Title:
|
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Vice President and Treasurer
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SPRINT COMMUNICATIONS, INC.
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By:
|
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/s/ Janet M. Duncan
|
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Name:
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Janet M. Duncan
|
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Title:
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Vice President and Treasurer
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[
Remaining signatures on next page
]
Underwriting Agreement Signature Page
Agreed as of the date first above written
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J.P. MORGAN SECURITIES LLC
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By:
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/s/ Joanne Braidi
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Name:
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Joanne Braidi
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Title:
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Vice President
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Acting on behalf of itself and as the Representative of the several Underwriters
Underwriting Agreement Signature Page
SCHEDULE I
Underwriters
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Name
|
|
Amount
|
|
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J.P. Morgan Securities LLC
|
|
$
|
412,500,000
|
|
|
Goldman Sachs & Co. LLC
|
|
$
|
412,500,000
|
|
|
Deutsche Bank Securities Inc.
|
|
$
|
170,250,000
|
|
|
Mizuho Securities USA LLC
|
|
$
|
170,250,000
|
|
|
Citigroup Global Markets Inc.
|
|
$
|
130,500,000
|
|
|
Barclays Capital Inc.
|
|
$
|
102,000,000
|
|
|
Credit Agricole Securities (USA) Inc.
|
|
$
|
102,000,000
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
1,500,000,000
|
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SCHEDULE II
Principal Amount and Type of Securities
$1,500,000,000 aggregate principal amount of 7.625% Notes due 2026
Indenture
Indenture, dated September 11, 2013, between Sprint Corporation and
The Bank of New York Mellon Trust Company, N.A.
Supplemental Indenture
Fifth Supplemental Indenture among Sprint Corporation, Sprint Communications, Inc. and
The Bank of New York Mellon Trust Company, N.A.
Trustee
The Bank
of New York Mellon Trust Company, N.A.
SCHEDULE III
Issuer Free Writing Prospectuses
See Schedule IV.
Other
Free Writing Prospectuses
None.
SCHEDULE IV
Form of Final Term Sheet
SPRINT CORPORATION
7.625% Notes due 2026
This Issuer Free
Writing Prospectus, dated February 20, 2018 relates to the 7.625% Notes due 2026 (the “Notes”) of Sprint Corporation (the “Issuer”) and should be read together with the Preliminary Prospectus Supplement dated
February 20, 2018 (the “Preliminary Prospectus Supplement”) relating to the Notes.
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Issuer:
|
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Sprint Corporation
|
|
|
|
|
Security:
|
|
7.625% Notes due 2026
|
|
|
|
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Size:
|
|
$1,500,000,000 aggregate principal amount
|
|
|
|
|
Maturity Date:
|
|
March 1, 2026
|
|
|
|
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Coupon:
|
|
7.625%
|
|
|
|
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Offering Price:
|
|
100.000% of face amount
|
|
|
|
|
Gross Proceeds:
|
|
$1,500,000,000
|
|
|
|
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Net Proceeds to Issuer (before expenses):
|
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$1,481,250,000
|
|
|
|
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Yield to Maturity:
|
|
7.625%
|
|
|
|
|
Spread to Treasury:
|
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+475 basis points
|
|
|
|
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Benchmark Treasury:
|
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UST 1.625% due February 15, 2026
|
|
|
|
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Interest Payment Dates:
|
|
March 1 and September 1, commencing September 1, 2018
|
|
|
|
|
Regular Record Dates:
|
|
February 15 and August 15
|
|
|
|
|
Make-Whole Call:
|
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Prior to November 1, 2025 (the “First Par Call Date”), at the Treasury Rate plus 50 basis points to the First Par Call Date
|
|
|
|
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Par Call:
|
|
At any time on or after the First Par Call Date, at 100% of the principal amount of the Notes to be redeemed
|
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|
|
|
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Change of Control Triggering Event:
|
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If a change of control triggering event occurs, the Issuer will be required, subject to certain conditions, to make an offer to purchase the Notes at a price equal to 101% of the aggregate principal amount of the Notes, plus accrued
but unpaid interest to, but excluding, the date of repurchase (all as described in the Preliminary Prospectus Supplement).
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Settlement:
|
|
(T+2) February 22, 2018
|
|
|
|
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CUSIP:
|
|
85207U AK1
|
|
|
|
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ISIN:
|
|
US85207UAK16
|
|
|
|
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Joint Book-Running Managers:
|
|
J.P. Morgan Securities LLC
Goldman
Sachs & Co. LLC
Deutsche Bank Securities Inc.
Mizuho
Securities USA LLC
|
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|
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Co-Managers:
|
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Citigroup Global Markets Inc.
Barclays Capital
Inc.
Credit Agricole Securities (USA) Inc.
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Change in Offering Size
The aggregate principal amount of Notes to be issued in the offering increased from $1,000,000,000 to $1,500,000,000. The incremental proceeds
from the increase in the offering size will be used for general corporate purposes. As a result, all information (including financial information) presented in the Preliminary Prospectus Supplement is deemed to have changed to the extent affected by
the changes described herein.
* * *
Sprint Corporation has filed a registration statement (including a prospectus) and a preliminary prospectus supplement with the Securities
and Exchange Commission (SEC) for the offering to which this communication relates. Before you invest, you should read the preliminary prospectus supplement and the accompanying prospectus in that registration statement and other documents the
Issuer has filed with the SEC for more complete information about Sprint Corporation and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, any underwriter or any dealer
participating in the offering will arrange to send you the preliminary prospectus supplement, including the accompanying prospectus, if you request it by contacting J.P. Morgan Securities LLC at Attn.: HY Syndicate, 383 Madison Avenue, 3rd floor,
New York, NY 10179 or calling collect
1-212-834-4533;
or Goldman Sachs & Co. LLC at 200 West Street, New York, New York
10282, Attn: Prospectus Department, or calling
1-866-471-2526,
by facsimile at
1-212-902-9316
or by
e-mail
at
prospectus-ny@ny.email.gs.com.
2
SCHEDULE V
Form of Opinion of Jones Day
SCHEDULE VI
Form of Opinion of Kansas Counsel
Exhibit 4.1
Execution Version
SPRINT
CORPORATION,
as Issuer
SPRINT COMMUNICATIONS, INC.,
as
Guarantor
and
THE BANK OF
NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
FIFTH
SUPPLEMENTAL INDENTURE
Dated as of February 22, 2018
Creating a Series of Securities Designated
7.625% Notes due 2026
FIFTH SUPPLEMENTAL INDENTURE (this “
Supplemental Indenture
”), dated as of
February 22, 2018, among SPRINT CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware (the “
Company
”), SPRINT COMMUNICATIONS, INC., a corporation duly organized and existing under the
laws of the State of Kansas, as Guarantor (the “
Guarantor
”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as trustee (the “
Trustee
”).
RECITALS OF THE COMPANY
WHEREAS
, the Company and the Trustee have duly executed and delivered that certain Senior Notes Indenture, dated as of
September 11, 2013 (the “
Indenture
”), providing for the issuance from time to time of unsecured debentures, notes or other evidences of indebtedness, to be issued in one or more series (the “
Securities
”);
WHEREAS
, Sections 201, 301 and 901 of the Indenture provide that the Company and the Trustee may from time to time enter into one or
more indentures supplemental thereto to establish the form or terms of Securities of a new series issued pursuant to the Indenture;
WHEREAS
, pursuant to the terms of the Indenture, the Company desires to provide for the establishment of a new series of Securities
designated as its 7.625% Notes due 2026 (the “
2026 Notes
”) to be issued under the Indenture, as supplemented by this Supplemental Indenture, initially in an aggregate principal amount of $1,500,000,000 to be authenticated and
delivered as provided in the Indenture;
WHEREAS
, the Company desires to supplement the provisions of the Indenture to provide for
the issuance of the 2026 Notes under the terms of the Indenture as supplemented hereby;
WHEREAS
, the Guarantor acknowledges that
the issuance of the 2026 Notes constitutes a direct benefit to it and is in furtherance of its corporate purposes or necessary or convenient to the conduct, promotion or attainment of its business, and in consideration therefor is willing to
guarantee the 2026 Notes on the terms set forth herein;
WHEREAS
, for the purposes hereinabove recited, and pursuant to due
corporate action, each of the Company and the Guarantor has duly determined to execute and deliver to the Trustee this Supplemental Indenture; and
WHEREAS
, all conditions and requirements necessary to make this Supplemental Indenture a valid and binding instrument in accordance
with its terms have been done and performed, and the execution and delivery hereof have been in all respects duly authorized.
NOW
,
THEREFORE
, in consideration of the premises, the covenants and other agreements contained herein and other good and valuable consideration, the sufficiency of which is hereby confirmed, the Company, the Guarantor and the Trustee mutually
covenant and agree as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01
Relationship with Indenture
. All terms contained in this Supplemental Indenture shall, except as specifically provided herein or except as the context may otherwise require, have the meanings defined in the Indenture. In the event of any
inconsistency between the Indenture and this Supplemental Indenture, this Supplemental Indenture shall govern. The words “herein,” “hereof,” “hereunder,” and words of similar import shall refer to this Supplemental
Indenture.
SECTION 1.02
Additional Definitions
. Solely with respect to the 2026 Notes, the following definitions shall be added to
Section 101 of the Indenture and replace any existing definitions (as applicable) in the Indenture, each in appropriate alphabetical order, unless the context requires otherwise.
“
2026 Notes
” shall have the meaning set forth in the recitals to this Supplemental Indenture.
“
Beneficial Owner
” has the meaning assigned to such term in Rule
13d-3
and Rule
13d-5
under the Exchange Act. The terms “
Beneficially Owns
” and “
Beneficially Owned
” shall have a corresponding meaning.
“
Change of Control
” means the occurrence of any of the following:
(a) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series
of related transactions, of all or substantially all of the Company and its Subsidiaries’ properties or assets, taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than one or
more Permitted Holders;
(b) the adoption of a plan relating to the Company’s liquidation or dissolution; or
(c) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) other than one or more
Permitted Holders becomes the Beneficial Owner, directly or indirectly, of more than 50% of the voting power of the Company’s Voting Securities;
provided
that a transaction in which the Company becomes a Subsidiary of another person
shall not constitute a Change of Control if (a) the Company’s stockholders immediately prior to such transaction Beneficially Own, directly or indirectly through one or more intermediaries, 50% or more of the voting power of the
outstanding Voting Securities of such other Person of whom the Company is a Subsidiary immediately following such transaction and (b) immediately following such transaction no person (as defined above) other than such other person, Beneficially
Owns, directly or indirectly, more than 50% of the voting power of the Company’s Voting Securities.
“
Change of Control
Triggering Event
” means the occurrence of both a Change of Control and a Ratings Decline.
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“
Comparable Treasury Issue
” means the United States Treasury security selected
by the Independent Investment Banker as having a maturity comparable to the First Par Call Date that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the First Par Call Date.
“
Comparable Treasury Price
” means, with respect to any Redemption
Date: (1) the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations; or (2) if fewer than five Reference Treasury Dealer
Quotations are obtained, the average of all quotations.
“
Definitive Note
” means a certificated 2026 Note registered in
the name of the Holder thereof and issued in accordance with the terms of the Indenture, substantially in the form of
Exhibit A
, except that such 2026 Note shall not bear the Global Note Legend and shall not have the “Schedule of
Exchanges of Interests in the Global Note” attached thereto.
“
First Par Call Date
” means November 1, 2025.
“
Global Note Legend
” means the legend set forth in Section 3.03(f) of this Supplemental Indenture, which is
required to be placed on all Global Notes issued under this Supplemental Indenture.
“
Global Notes
” means, individually
and collectively, each of the global notes substantially in the form of
Exhibit A
.
“
Guarantor
” means the Person
named as the “Guarantor” in the first paragraph of this Supplemental Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Supplemental Indenture, and thereafter “Guarantor” shall
mean such successor Person.
“
Independent Investment Banker
” means one of the Reference Treasury Dealers to be appointed
by the Company.
“
Indirect Participant
” means a Person who holds a beneficial interest in a Global Note through a
Participant.
“
Investment Grade Rating
” means a rating equal to or greater than Baa3 by Moody’s and
BBB-
by S&P or the equivalent thereof under any new ratings system if the ratings systems of either such Rating Agency shall be modified after the issue date of the 2026 Notes, or the equivalent rating of any
other Ratings Agency the Company selects as provided in the definition of Ratings Agencies.
“
Moody’s
” means
Moody’s Investors Service, Inc. or any successor to the rating agency business thereof.
“
Note Guarantee
” shall have
the meaning set forth in Section 4.01 of this Supplemental Indenture.
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“
Permitted Holder
” means SoftBank Corp., a Japanese
kabushiki kaisha
, and
its Affiliates.
“
Primary Treasury Dealer
” shall have the meaning set forth in the definition of Reference Treasury
Dealer.
“
Ratings Agencies
” means (1) Moody’s and S&P; and (2) if either Moody’s or S&P
ceases to rate the 2026 Notes or ceases to make a rating on the 2026 Notes publicly available, an entity registered as a “nationally recognized statistical rating organization” (registered as such pursuant to Rule
17g-l
of the Exchange Act) then making a rating on the 2026 Notes publicly available selected by the Company (as certified by an officer’s certificate), which shall be substituted for Moody’s or S&P,
as the case may be.
“
Ratings Decline
” means the occurrence, during the period commencing on the date of the first public
announcement of the Change of Control or the intention to effect a Change of Control and ending 90 days after the occurrence of the Change of Control, of a downgrade of the rating of the 2026 Notes by both Rating Agencies by one or more gradations
(including gradations within ratings categories as well as between rating categories).
“
Reference Treasury Dealer
” means
J.P. Morgan Securities LLC and Goldman Sachs & Co. LLC, and their successors, and any three other firms that are primary U.S. Government securities dealers (each a “
Primary Treasury Dealer
”) which the Company shall specify
from time to time;
provided
, that if any of them ceases to be a Primary Treasury Dealer, the Company will substitute therefor another Primary Treasury Dealer.
“
Reference Treasury Dealer Quotations
” means, with respect to each Reference Treasury Dealer and any Redemption Date, the
average of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Company by such Reference Treasury Dealer at 3:00 p.m., New York City time, on the third
Business Day preceding such Redemption Date.
“
Remaining Scheduled Payments
” means with respect to each 2026 Note to be
redeemed, the remaining scheduled payments of the principal thereof and interest thereon, that would be due after the related Redemption Date to the First Par Call Date but for such redemption;
provided
, that, if such Redemption Date is not
an Interest Payment Date with respect to such 2026 Note, the amount of the next succeeding scheduled interest payment thereon will be deemed to be reduced by the amount of interest accrued thereon to such Redemption Date.
“
S&P
” means Standard & Poor’s Rating Services, a division of S&P Global, Inc., or any successor to the
rating agency business thereof.
“
Subsidiary
” means, with respect to any Person, a Corporation, partnership, limited
liability company or other business organization, whether or not incorporated, a majority of the Voting Securities of which is owned, directly or indirectly, by such Person.
“
Treasury Rate
” means, with respect to an applicable Redemption Date for the 2026 Notes: (1) the yield, under the
heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.
4
15(519)” or any successor publication that is published weekly by the Board of Governors of the Federal Reserve System and that establishes yields on actively traded United States Treasury
Notes adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue;
provided
that if no maturity is within four months before or after the First Par
Call Date, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue will be selected and the Treasury Rate will be interpolated or extrapolated from those yields on a straight line basis, rounding to the
nearest month; or (2) if that release, or any successor release, is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for the Redemption Date. The Treasury Rate will be calculated on the
third Business Day preceding the Redemption Date.
“Voting Securities”
of a Person means the stock or other ownership or
equity interests, of whatever class or classes, the holders of which ordinarily have the power to vote for the election of the members of the board of directors, managers or trustees of such Person (other than stock or other ownership or equity
interests having such power only by reason of the happening of a contingency).
SECTION 1.03
Applicability
. The provisions
contained in this Supplemental Indenture shall apply only to the 2026 Notes and not to any other series of Securities issued under the Indenture and any covenants provided herein are solely for the benefit of the Holders of the 2026 Notes and not
for the benefit of the Holders of any other series of Securities issued under the Indenture.
ARTICLE TWO
GENERAL TERMS AND CONDITIONS OF THE 2026 NOTES
SECTION 2.01
Terms
. Pursuant to Section 301 of the Indenture, the terms of the 2026 Notes shall be as follows:
(a) The title of the 2026 Notes is “7.625% Notes due 2026.”
(b) The 2026 Notes are the general unsecured senior obligations of the Company and shall rank equally with all other senior obligations of the
Company.
(c) The 2026 Notes will mature, and the principal of the 2026 Notes and all accrued and unpaid amounts, including interest,
thereon will be due and payable on March 1, 2026, or such earlier date as any of the 2026 Notes may become due and payable in accordance with the provisions of the Indenture and this Supplemental Indenture.
(d) The 2026 Notes will initially be issued in an aggregate principal amount of $1,500,000,000. The Company may issue additional 2026 Notes
from time to time without the consent of any Holders of the 2026 Notes. Any such additional 2026 Notes along with the 2026 Notes issued on the date hereof will be treated as a single class for all purposes under the Indenture, including, without
limitation, waivers, amendments and redemptions.
5
(e) The 2026 Notes will be issued in minimum denominations of $2,000 and thereafter in integral
multiples of $1,000.
(f) Interest on the 2026 Notes will accrue from February 22, 2018 or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semi-annually and be payable on March 1 and September 1 of each year, commencing September 1, 2018 (each such date, an “
Interest Payment Date
” as defined in the
Indenture), at the rate of 7.625% per annum to the Persons in whose name the 2026 Notes are registered in the Security Register on the preceding February 15 or August 15 (each such date, a “
Regular Record Date
” as defined
in the Indenture) until the principal thereof is paid or made available for payment;
provided
that any principal and premium, and any such installment of interest, which is overdue will bear interest at the rate of 7.625% per annum (to the
extent that the payment of such interest is legally enforceable), from the dates such amounts are due until they are paid or made available payment, and such interest will be payable on demand.
(g) The 2026 Notes are not entitled to any sinking fund.
(h) The 2026 Notes are guaranteed by the Guarantor on the terms set forth in Article Four hereof.
SECTION 2.02
Terms of Notes Incorporated
. The terms and provisions contained in the form of 2026 Notes attached as
Exhibit A
shall constitute, and are hereby expressly made, a part of this Supplemental Indenture and, to the extent applicable, the Company, the Guarantor and the Trustee, by their execution and delivery of this Supplemental Indenture, expressly agree to such
terms and provisions and to be bound thereby. However, to the extent any provision of any 2026 Note conflicts with the terms of this Supplemental Indenture, this Supplemental Indenture shall govern.
ARTICLE THREE
THE 2026
NOTES
SECTION 3.01
Form
. The 2026 Notes shall be in substantially the form of
Exhibit
A
.
SECTION 3.02
Global Notes
. The 2026 Notes initially will be represented by one or more Global Notes in registered, global form without
interest coupons (including the Global Note Legend thereon). The Global Notes will be deposited upon issuance with the Trustee as custodian for the Depository Trust Company (“
DTC
”), and registered in the name of DTC or its nominee,
in each case for credit to an account of a direct or indirect participant in DTC.
SECTION 3.03
Transfer and Exchange
.
(a)
Transfer and Exchange of Global Notes
. A Global Note may not be transferred as a whole except by the Depositary (who shall initially
be DTC) to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. All
Global Notes shall be exchanged by the Company for Definitive Notes if (i) the Depositary (A) notifies the Company that it is unwilling or unable to continue as Depositary for
6
the Global Notes and the Company fails to appoint a successor Depositary within 90 days after receiving such notice or (B) has ceased to be a clearing agency registered under the Exchange
Act and the Company fails to appoint a successor Depositary within 90 days after becoming aware of such condition; (ii) the Company, at its option, notifies the Trustee in writing that it elects to cause the issuance of Definitive Notes in
exchange for Global Notes (in whole but not in part); or (iii) there shall have occurred and be continuing a Default or Event of Default with respect to the 2026 Notes and DTC requests such exchange. Upon the occurrence of any of the preceding
events in (i), (ii) or (iii) above, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 304 and 306 of the
Indenture. A Global Note may not be exchanged for another 2026 Note other than as provided in this Section 3.03(a); however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 3.03(b), (c) or
(h) hereof.
(b)
Transfer and Exchange of Beneficial Interests in the Global Notes
. The transfer and exchange of beneficial
interests in the Global Notes shall be effected through the Depositary, in accordance with the provisions of this Indenture and the applicable procedures of the Depositary, Euroclear Bank, S.A./N.V. and Clearstream Banking, S.A. Beneficial interests
in the Restricted Global Notes shall be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also shall require compliance with
either subparagraph (i) or (ii) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:
(i)
Transfer of Beneficial Interests in the Same Global Note
. Beneficial interests in any Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial interest in the same Global Note. No written orders or instructions shall be required to be delivered to the Trustee to effect the transfers described in this Section 3.03(b)(i).
(ii)
All Other Transfers and Exchanges of Beneficial Interests in Global Notes
. In connection with all transfers
and exchanges of beneficial interests that are not subject to Section 3.03(b)(i) above, the transferor of such beneficial interest must deliver to the Trustee either (A) (1) a written order from a Participant or an Indirect Participant
given to the Depositary directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions containing
information regarding the Participant account to be credited with such increase or (B) (1) a written order from a Participant or an Indirect Participant given to the Depositary directing the Depositary to cause to be issued a Definitive Note in
an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given by the Depositary to the Trustee containing information regarding the Person in whose name such Definitive Note shall be registered to effect
the transfer or exchange referred to in (1) above. Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Supplemental Indenture and the 2026 Notes or otherwise applicable
under the Securities Act, the Trustee shall adjust the principal amount at maturity of the relevant Global Notes pursuant to Section 3.03(g).
7
(c)
Transfer or Exchange of Beneficial Interests for Definitive Notes.
If any holder of a
beneficial interest in any Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction of
the conditions set forth in Section 3.03(b)(ii), the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 3.03(g), and the Company shall execute and the Trustee
shall authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 3.03(c) shall be
registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Trustee through instructions from the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Definitive Notes to the Persons in whose name such 2026 Notes are so registered.
(d)
Transfer and Exchange
of Definitive Notes for Beneficial Interests
. A Holder of a Definitive Note may exchange such 2026 Note for a beneficial interest in a Global Note or transfer such Definitive Note to a Person who takes delivery thereof in the form of a
beneficial interest in a Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable Definitive Note and increase or cause to be increased the aggregate principal amount of one of the
Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to the paragraph
immediately above at a time when a Global Note has not yet been issued, the Company shall issue and, upon receipt of an authentication order in accordance with the terms of the Indenture, the Trustee shall authenticate one or more Global Notes in an
aggregate principal amount equal to the principal amount of Definitive Notes so transferred.
(e)
Transfer and Exchange of Definitive
Notes for Definitive Notes
. Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 3.03(e), the Trustee shall register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present or surrender to the Trustee the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Trustee duly executed by such
Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder shall provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this
Section 3.03(e).
(f)
Global Note Legend
. Each Global Note shall bear a legend in substantially the following form:
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 3.03 OF THE FIFTH SUPPLEMENTAL INDENTURE TO THE INDENTURE,
8
(II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 3.03(a) OF THE FIFTH SUPPLEMENTAL INDENTURE TO THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO
THE TRUSTEE FOR CANCELLATION PURSUANT TO THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
(g)
Cancellation and/or Adjustment of Global Notes
. At such time as all beneficial interests in a particular Global Note have been
exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be returned to or retained and canceled by the Trustee in accordance with the Indenture. At
any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who shall take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the
principal amount of 2026 Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on the Schedule of Exchanges of Interests in such Global Note by the Trustee or by the Depositary at the direction of the
Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who shall take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be
increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
(h)
General Provisions Relating to Transfers and Exchanges
.
(i) To permit registrations of transfers and exchanges permitted hereunder, the Company shall execute and the Trustee shall
authenticate Global Notes and Definitive Notes upon the Company’s order or at the Trustee’s request in accordance with the Indenture.
(ii) No service charge shall be made to a Holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note
for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith.
(iii) The Trustee shall not be required to register the transfer of or exchange any 2026 Note selected for redemption in whole
or in part, except the unredeemed portion of any 2026 Note being redeemed in part.
(iv) All Global Notes and Definitive
Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid and legally binding obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as
the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
9
(v) The Company shall not be required (A) to issue, to register the transfer
of or to exchange any 2026 Notes during a period beginning at the opening of business 15 days before the day of any selection of 2026 Notes for redemption and ending at the close of business on the day of selection, (B) to register the transfer
of or to exchange any 2026 Note so selected for redemption in whole or in part, except the unredeemed portion of any 2026 Note being redeemed in part, (C) to register the transfer of or to exchange a 2026 Note between a record date and the next
succeeding interest payment date or (D) to register the transfer of or to exchange a 2026 Note tendered and not withdrawn in connection with a Change of Control Offer.
(vi) Prior to due presentment for the registration of a transfer of any 2026 Note, the Trustee, the Paying Agent and the
Company may deem and treat the Person in whose name any 2026 Note is registered as the absolute owner of such 2026 Note for the purpose of receiving payment of principal of and interest on such 2026 Notes and for all other purposes, and none of the
Trustee, the Paying Agent or the Company shall be affected by notice to the contrary.
(vii) Neither the Trustee nor the
registrar shall have any duty to monitor the Company’s compliance with or have any responsibility with respect to the Company’s compliance with any federal or state securities laws in connection with registrations of transfers and
exchanges of the 2026 Notes. The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any
interest in any 2026 Notes (including any transfers between or among the Depositary’s participants or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation, as is
expressly required by, and to do so if and when expressly required by, the terms of this Indenture and to examine the same to determine substantial compliance as to form with the express requirements hereof.
ARTICLE FOUR
NOTE
GUARANTEE
SECTION 4.01
Note Guarantee
. The Guarantor irrevocably and unconditionally guarantees, on a senior unsecured basis,
the full and punctual payment when due, whether at maturity, by acceleration or otherwise, of all payment obligations of the Company under the 2026 Notes for the payment of principal of, premium, if any, and interest on the 2026 Notes, and all other
amounts payable by the Company to the Holders of the 2026 Notes under the 2026 Notes, the Indenture and this Supplemental Indenture, on the terms set forth herein (such guarantee, the “
Note Guarantee
”).
SECTION 4.02
Limitation of Note Guarantee
. The Note Guarantee is limited to an amount not to exceed the maximum amount that can be
guaranteed by the Guarantor by law or without resulting in its obligations under the Note Guarantee being voidable or unenforceable under applicable laws relating to fraudulent transfer, or under similar laws affecting the rights of creditors
generally.
10
SECTION 4.03
Subrogation
. The Guarantor shall be subrogated to all rights of the Holders
of the 2026 Notes against the Company in respect of any amounts paid by the Guarantor pursuant to the provisions of the Note Guarantee;
provided, however
, that the Guarantor shall not be entitled to enforce or to receive any payments arising
out of, or based upon, such right of subrogation until the principal of, premium, if any, and interest on all 2026 Notes shall have been paid in full or payment thereof shall have been provided for in accordance with the provisions of the Indenture
and this Supplemental Indenture.
SECTION 4.04
Release of Note Guarantee
.
(a) The Note Guarantee shall be automatically and unconditionally released (and thereupon shall terminate and be discharged and be of no
further force and effect) upon:
(i) the Company exercising its legal defeasance or covenant defeasance option with respect
to the 2026 Notes pursuant to Article XIII of the Indenture or the satisfaction and discharge of the obligations of the Company with respect to the 2026 Notes pursuant to Article IV of the Indenture, in each case, in compliance with the terms of
this Supplemental Indenture and the Indenture; and
(ii) the Company delivering to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Supplemental Indenture and the Indenture relating to such release have been complied with.
(b) For the avoidance of doubt (other than as expressly provided in the Indenture), nothing in this Supplemental Indenture shall prevent the
Guarantor from merging with and into the Company, or the Company from merging with and into the Guarantor, and in such event the Note Guarantee shall terminate and the surviving entity shall remain the primary obligor under the 2026 Notes, the
Indenture and this Supplemental Indenture.
ARTICLE FIVE
AMENDMENTS TO INDENTURE SECTIONS
The following amendments to the Indenture shall apply only to the 2026 Notes and not to any other series of Securities issued under the
Indenture and shall be effective for so long as any 2026 Notes remain Outstanding. The Indenture is amended by this Supplemental Indenture solely with respect to the 2026 Notes, as follows:
SECTION 5.01
Amendments to Article V
.
(a) Solely with respect to the 2026 Notes, Section 501 of the Indenture shall be amended by deleting the “.” at the end of
clause (7) thereof and replacing it with “; or” and inserting the following new Events of Default immediately following clause (7) thereof:
“(8) the Note Guarantee is held in a final,
non-appealable
judgment to be unenforceable or invalid
or ceases for any reason to be in full force and effect (except as permitted to be released pursuant to the Fifth Supplemental Indenture dated as of
11
February 22, 2018) or the Guarantor denies or disaffirms its obligations under the Note Guarantee in writing, except in accordance with the terms of the Note Guarantee or in connection with
the release of the Note Guarantee in accordance with the Fifth Supplemental Indenture dated as of February 22, 2018; or
(9) the entry
by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Guarantor in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar
law or (B) a decree or order adjudging the Guarantor bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Guarantor under any applicable Federal
or State law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Guarantor or of any substantial part of its Property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days; or
(10) the commencement by the Guarantor of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the Guarantor to the entry of a decree or order for relief in respect of it in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or the consent by the Guarantor to the filing of such petition or the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Guarantor or of any substantial part of its Property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due,
or the taking of corporate action by it in furtherance of any such action.”
(b) Solely with respect to the 2026 Notes,
Section 502 of the Indenture shall be amended by replacing “Section 501(5) or 501(6)” in the second sentence thereof with the following: “Section 501(5), 501(6), 501(9) or 501(10).”
SECTION 5.02
Amendments to Article VIII
.
(a) Solely with respect to the 2026 Notes, Article VIII of the Indenture shall be amended by inserting the following new Sections 803 and 804
immediately following Section 802 thereof:
“
Section
803.
Guarantor May Consolidate, Etc., Only on
Certain Terms.
The Guarantor may consolidate with or merge into any other Person or convey, transfer or lease all or
substantially all of its properties and assets to any Person only if:
12
(a) either (1) the Guarantor is the surviving Person, or (2) the
successor Person is a Corporation, partnership, limited liability company or trust organized and existing under the laws of the United States, any State thereof, the District of Columbia or any territory thereof and (unless the successor entity is
the Company) assumes the Guarantor’s obligations under the Securities and this Indenture and the Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; and
(b) after giving effect to the transaction no Event of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, has happened and is continuing; and
(c) the Company has delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that such transaction and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied with.
Section 804. Successor Substituted.
Upon any consolidation of the Guarantor with, or merger of the Guarantor into, any other Person or any conveyance, transfer or
lease of the properties and assets of the Guarantor substantially as an entirety in accordance with Section 803, the successor Person formed by such consolidation or into which the Guarantor is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Guarantor under this Indenture with the same effect as if such successor Person had been named as the Guarantor herein, and thereafter, except in
the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities and the Note Guarantee.”
SECTION 5.03
Amendments to Article IX
.
(a) Solely with respect to the 2026 Notes, Section 901 of the Indenture shall be amended by deleting the “.” at the end of
clause (14) thereof and replacing it with “; or” and inserting the following immediately following clause (14) thereof:
“(15) to evidence the succession of another Person to the Guarantor, and the assumption by any such successor of the Guarantor’s
obligations herein and under the Note Guarantee; or
(16) to release the Note Guarantee in accordance with the Fifth Supplemental Indenture
dated as of February 22, 2018.”
(b) Solely with respect to the 2026 Notes, Section 902 of the Indenture shall be amended by
deleting the “.” at the end of clause (7) thereof and replacing it with “; or” and inserting the following immediately following clause (7) thereof:
13
“(8) release the Guarantor from any of its obligations under the Note Guarantee or the
Indenture, except in accordance with the terms this Indenture (as modified by the Fifth Supplemental Indenture dated February 22, 2018); or
(9) amend or modify any of the provisions of the Indenture or related definitions affecting the Note Guarantee in any manner adverse to the
Holders of the 2026 Notes.”
ARTICLE SIX
OPTIONAL REDEMPTION
SECTION 6.01
Optional Redemption
. (a) The 2026 Notes will be redeemable in accordance with the terms of the Indenture (as modified by
this Supplemental Indenture), in each case from time to time, prior to the First Par Call Date in whole or in part, at the Company’s option, on at least 30 days, but not more than 60 days, prior notice delivered to the registered address of
each Holder of the 2026 Notes to be redeemed, at a Redemption Price equal to (1) the greater of: (A) 100% of the principal amount of the 2026 Notes to be redeemed, and (B) the sum of the present values of the Remaining Scheduled Payments,
discounted to the Redemption Date, on a semi-annual basis, assuming a
360-day
year consisting of twelve
30-day
months, at the Treasury Rate, plus 50 basis points; plus
(2) in each case, accrued and unpaid interest, if any, to, but excluding, the applicable Redemption Date. Any calculation made pursuant to this Section 6.01(a) shall not include any discounted amount with respect to the interest and
principal payments due on the Stated Maturity of the 2026 Notes and shall instead include the discounted amount with respect to the interest and principal payments that would be payable upon redemption of the 2026 Notes on the First Par Call Date.
(b) The 2026 Notes will be redeemable at the Company’s option, in whole or in part, at any time on or after the First Par Call Date,
at a Redemption Price equal to 100% of the principal amount of the 2026 Notes to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the applicable Redemption Date.
SECTION 6.02
Interest on 2026 Notes Redeemed; Deposit of Applicable Redemption Price
. On and after the Redemption Date, interest will
cease to accrue on the 2026 Notes or any portion thereof called for redemption, unless the Company defaults in the payment of the applicable Redemption Price. On or before the Redemption Date, the Company will deposit with the Paying Agent, or the
Trustee, money sufficient to pay the applicable Redemption Price of the 2026 Notes to be redeemed on such date.
ARTICLE SEVEN
REPURCHASE OF THE 2026 NOTES
UPON A CHANGE OF CONTROL TRIGGERING EVENT
SECTION 7.01
Repurchase Offers
. If a Change of Control Triggering Event occurs with respect to the 2026 Notes, each Holder of 2026
Notes will have the right to require the Company to repurchase all or any part, equal to $2,000 or an integral multiple of $1,000 thereafter, of that Holder’s 2026 Notes pursuant to an offer (a “
Change of Control Offer
”) on the
terms set forth in this Article Seven.
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SECTION 7.02
Terms of Change of Control Offer
. The Company, in each Change of Control
Offer, will offer a cash payment (a “
Change of Control Payment
”) equal to 101% of the aggregate principal amount of 2026 Notes repurchased, plus accrued and unpaid interest on the 2026 Notes, if any, in each case, to, but excluding,
the date of repurchase. Within 30 days following any Change of Control Triggering Event, if the Company had not, prior to the Change of Control Triggering Event, sent a redemption notice for all the 2026 Notes in connection with an optional
redemption permitted by Section 7.01 of this Supplemental Indenture and Article XI of the Indenture, the Company will deliver or cause to be delivered a notice to each registered Holder briefly describing the event or events that constitute a
Change of Control Triggering Event and offering to repurchase 2026 Notes on the date specified in such notice (the “
Change of Control Payment Date
”), which date will be no earlier than 30 days and no later than 60 days from the date
the notice is mailed, pursuant to the procedures required by the Indenture (as modified by this Supplemental Indenture) and described in such notice.
SECTION 7.03
Compliance with Securities Laws
. The Company will comply with the requirements of Rule
14e-l
under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable to any Change of Control Offer. To the extent the provisions of any
securities laws or regulations conflict with the provisions of this Article Seven, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Article Seven by virtue
of such conflict.
SECTION 7.04
Acceptance of and Payment for 2026 Notes
. On the Change of Control Payment Date, the Company will,
to the extent lawful:
(a) accept for payment all 2026 Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(b) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all 2026 Notes or portions thereof
properly tendered; and
(c) deliver or cause to be delivered to the Trustee the 2026 Notes so accepted together with an Officers’
Certificate stating the aggregate principal amount of 2026 Notes or portions thereof being purchased.
SECTION 7.05
Determination of
Tender; Responsibilities of Paying Agent and Trustee
.
The Company will determine in connection with any Change of Control Offer whether the 2026 Notes are properly tendered, and the Trustee will have no responsibility for, and may
conclusively rely upon, the Company’s determination with respect thereto. Subject to receipt of sufficient funds from the Company, the Paying Agent will promptly transmit to each registered Holder of 2026 Notes properly tendered, the Change of
Control Payment for such 2026 Notes, and the Trustee will promptly authenticate and mail, or cause to be transferred by book entry, to each Holder a new 2026 Note equal in principal amount to any unpurchased portion of the 2026 Notes surrendered, if
any;
provided
that each such new 2026 Note will be in a principal amount of $2,000 or an integral multiple of $1,000 thereafter. Any 2026 Note so accepted for payment will cease to accrue interest on and after the Change of Control Payment
Date.
15
SECTION 7.06
Third Party Change of Control Offers
. The Company will not be required to
make a Change of Control Offer upon a Change of Control Triggering Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements applicable to a Change of Control Offer made by
the Company and purchases all 2026 Notes properly tendered and not withdrawn under the Change of Control Offer.
SECTION 7.07
Conditional Change of Control Offers
. The Company may make a Change of Control Offer in advance of a Change of Control Triggering Event, and condition that Change of Control Offer upon the occurrence of such Change of Control Triggering
Event, if a definitive agreement is in place for the Change of Control Triggering Event at the time of making the Change of Control Offer.
SECTION 7.08
Investment Grade Rating
. Notwithstanding the foregoing provisions of this Article Seven, if the 2026 Notes receive an
Investment Grade Rating by both of the Rating Agencies, and notwithstanding that the 2026 Notes may later cease to have an Investment Grade Rating by either of the Rating Agencies, the Company will be released from its obligation to make a Change of
Control Offer upon a Change of Control Triggering Event.
ARTICLE EIGHT
MISCELLANEOUS PROVISIONS
SECTION 8.01
Effect of Supplemental Indenture; Conflicts with Indenture
. This Supplemental Indenture is executed by the Company and the
Guarantor, and by the Trustee upon the Company’s request, pursuant to the provisions of the Indenture, and the terms and conditions hereof shall be deemed to be part of the Indenture for all purposes. The Indenture, as supplemented and amended
by this Supplemental Indenture, is in all respects hereby adopted, ratified and confirmed. Notwithstanding the foregoing, to the extent that any of the terms of this Supplemental Indenture are inconsistent with, or conflict with, the terms of the
Indenture, the terms of this Supplemental Indenture shall govern.
SECTION 8.02
Counterparts
. This 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 8.03
Trustee
. The Trustee assumes no responsibility for the correctness of the recitals herein contained, which shall be taken
as the statements of the Company. The Trustee makes no representations and shall have no responsibility as to the validity or sufficiency of this Supplemental Indenture or the due authorization and execution hereof by the Company or the Guarantor.
SECTION 8.04
Headings
. The Article and Section headings contained herein are for convenience only and shall not affect the
construction of this Supplemental Indenture.
16
SECTION 8.05
Governing Law
. This Supplemental Indenture and the 2026 Notes and the Note
Guarantee shall be governed by and construed in accordance with the laws of the State of New York.
17
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed and delivered by their respective proper and duly authorized officers as of the day and year first above written.
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SPRINT CORPORATION
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By:
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/s/ Janet M. Duncan
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Name: Janet M. Duncan
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Title: Vice President and Treasurer
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SPRINT COMMUNICATIONS, INC.
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By:
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/s/ Janet M. Duncan
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Name: Janet M. Duncan
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Title: Vice President and Treasurer
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[Signature page to 2026 Notes Supplemental Indenture]
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
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By:
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/s/ R. Tarnas
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Name: R. Tarnas
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Title: Vice President
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[Signature page to 2026 Notes Supplemental Indenture]
Exhibit A
Form of 2026 Note
A-1
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN
CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 3.03 OF THE FIFTH
SUPPLEMENTAL INDENTURE TO THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 3.03(a) OF THE FIFTH SUPPLEMENTAL INDENTURE TO THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
SPRINT CORPORATION
7.625% NOTES DUE 2026
CUSIP NO. 85207U AK1
ISIN NO. US85207UAK16
SPRINT CORPORATION
, a corporation duly organized and existing under the laws of Delaware (herein called
the “
Company
,” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to
CEDE
& CO
., or registered assigns, the principal sum
of [ ]
MILLION DOLLARS
on March 1, 2026, and to pay interest thereon from February 22, 2018, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on
March 1 and September 1 of each year, commencing September 1, 2018, at the rate of 7.625% per annum, until the principal hereof is paid or made available for payment,
provided
that any principal and premium, and any such
installment of interest, which is overdue shall bear interest at the rate of 7.625% per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available
for payment, and such interest shall be payable on demand. If any Interest Payment Date or the Stated Maturity of this 2026 Note falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were
made on the date the payment was due and no interest shall accrue on the amount so payable for the period from and after the Interest Payment Date or the Stated Maturity of this 2026 Note, as the case may be, if such payment is made on such next
succeeding Business Day. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date (or the next Business Day, as applicable) will, as provided in such Indenture, be paid to the Person in whose name this 2026
Note (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be February 15 or August 15 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this 2026 Note (or one or more
Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the
A-2
Trustee, notice whereof shall be given to Holders of 2026 Notes of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the 2026 Notes of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
Reference is hereby made to the further provisions of this 2026 Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this 2026 Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
* * * * *
A-3
IN WITNESS WHEREOF, the Company has caused this 2026 Note to be signed manually or by facsimile
by its duly authorized officer.
A-4
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
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By:
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Authorized Signatory
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Dated:
A-5
Reverse of Note
SPRINT CORPORATION
7.625% Notes Due 2026
This 2026 Note is one of a duly authorized issue of securities of the Company (herein called the “
2026 Notes
”), issued and to
be issued in one or more series under an Indenture, dated as of September 11, 2013 (herein called the “
Indenture
,” which term shall have the meaning assigned to it in such instrument), between the Company and The Bank of New
York Mellon Trust Company, N.A., as Trustee (herein called the “
Trustee
,” which term includes any successor trustee under the Indenture), as supplemented by the Fifth Supplemental Indenture, dated as of February 22, 2018 (the
“
Supplemental Indenture
”). Reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantor, the Trustee and the Holders of the
2026 Notes and of the terms upon which the 2026 Notes are, and are to be, authenticated and delivered.
The Company may redeem the 2026
Notes at any time and from time to time prior to the First Par Call Date, in whole or in part, at the Company’s option, on at least 30 days, but not more than 60 days, prior notice delivered to the registered address of each Holder of the 2026
Notes to be redeemed, at a Redemption Price equal to the greater of:
(1) 100% of the principal amount of the 2026 Notes to be redeemed;
and
(2) the sum of the present values of the Remaining Scheduled Payments, discounted to the Redemption Date, on a semi-annual basis,
assuming a
360-day
year consisting of twelve 30 day months, at the Treasury Rate, plus 50 basis points;
plus
, in each case, accrued and unpaid interest, if any, to, but excluding, the applicable Redemption Date. Any calculation made pursuant to this
paragraph shall not include any discounted amount with respect to the interest and principal payments due on the Stated Maturity of the 2026 Notes and shall instead include the discounted amount with respect to the interest and principal payments
that would be payable upon redemption of the 2026 Notes on the First Par Call Date.
The Company may redeem the 2026 Notes at any time on
or after the First Par Call Date, in whole or in part, at the Company’s option, at a Redemption Price equal to 100% of the principal amount of the 2026 Notes to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the
Redemption Date.
“
Comparable Treasury Issue
” means the United States Treasury security selected by the Independent
Investment Banker as having a maturity comparable to the First Par Call Date that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the First Par Call Date.
“
Comparable Treasury Price
” means, with respect to any Redemption Date:
(1) the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations; or (2) if fewer than five Reference Treasury Dealer Quotations are
obtained, the average of all quotations.
A-6
“
First Par Call Date
” means November 1, 2025.
“
Independent Investment Banker
” means one of the Reference Treasury Dealers to be appointed by the Company.
“
Reference Treasury Dealer
” means J.P. Morgan Securities LLC and Goldman Sachs & Co. LLC, and their successors, and
any three other firms that are primary U.S. Government securities dealers (each a “
Primary Treasury Dealer
”) which the Company shall specify from time to time;
provided
, that if any of them ceases to be a Primary Treasury
Dealer, the Company will substitute therefor another Primary Treasury Dealer.
“
Reference Treasury Dealer Quotations
”
means, with respect to each Reference Treasury Dealer and any Redemption Date, the average of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the
Company by such Reference Treasury Dealer at 3:00 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“
Remaining Scheduled Payments
” means with respect to each 2026 Note to be redeemed, the remaining scheduled payments of the
principal thereof and interest thereon, that would be due after the related Redemption Date to the First Par Call Date but for such redemption;
provided
, that, if such Redemption Date is not an Interest Payment Date with respect to such 2026
Note, the amount of the next succeeding scheduled interest payment thereon will be deemed to be reduced by the amount of interest accrued thereon to such Redemption Date.
“
Treasury Rate
” means, with respect to an applicable Redemption Date for the 2026 Notes: (1) the yield, under the
heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H. 15(519)” or any successor publication that is published weekly by the Board of Governors
of the Federal Reserve System and that establishes yields on actively traded United States Treasury Notes adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable
Treasury Issue;
provided
that if no maturity is within four months before or after the First Par Call Date, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue will be selected and the Treasury
Rate will be interpolated or extrapolated from those yields on a straight line basis, rounding to the nearest month; or (2) if that release, or any successor release, is not published during the week preceding the calculation date or does not
contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to
the Comparable Treasury Price for the Redemption Date. The Treasury Rate will be calculated on the third Business Day preceding the Redemption Date.
On and after the Redemption Date, interest will cease to accrue on the 2026 Notes or any portion thereof called for redemption, unless the
Company defaults in the payment of the applicable Redemption Price.
A-7
In the event of redemption of this 2026 Note in part only, a new 2026 Note or 2026 Notes of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.
If a Change of Control Triggering Event occurs, each Holder of a 2026 Note will have the right to require the Company to repurchase all or any
part, equal to $2,000 or an integral multiple of $1,000 thereafter, of that Holder’s 2026 Notes pursuant to an offer (a “
Change of Control Offer
”) on the terms set forth in the Supplemental Indenture.
The Company, in each Change of Control Offer, will offer a cash payment (a “
Change of Control Payment
”) equal to 101% of the
aggregate principal amount of 2026 Notes repurchased, plus accrued and unpaid interest on the 2026 Notes, if any, in each case to, but excluding, the date of repurchase. Within 30 days following any Change of Control Triggering Event, if the Company
had not, prior to the Change of Control Triggering Event, sent a redemption notice for all the 2026 Notes in connection with an optional redemption permitted by the Indenture, the Company will deliver or cause to be delivered a notice to each
registered Holder briefly describing the event or events that constitute a Change of Control Triggering Event and offering to repurchase 2026 Notes on the date specified in such notice (the “
Change of Control Payment Date
”), which
date will be no earlier than 30 days and no later than 60 days from the date the notice is mailed, pursuant to the procedures required by the Indenture (as modified by this Supplemental Indenture) and described in such notice.
Notwithstanding the preceding two paragraphs, if the 2026 Notes receive an Investment Grade Rating by both of the Rating Agencies, and
notwithstanding that the 2026 Notes may later cease to have an Investment Grade Rating by either of the Rating Agencies, the Company will be released from its obligation to make a Change of Control Offer upon a Change of Control Triggering Event.
“
Change of Control
” means the occurrence of any of the following:
(a) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series
of related transactions, of all or substantially all of the Company and its Subsidiaries’ properties or assets, taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than one or
more Permitted Holders;
(b) the adoption of a plan relating to the Company’s liquidation or dissolution; or
(c) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) other than one or more
Permitted Holders becomes the Beneficial Owner, directly or indirectly, of more than 50% of the voting power of the Company’s Voting Securities;
provided
that a transaction in which the Company becomes a Subsidiary of another person
shall not constitute a Change of Control if (a) the Company’s stockholders immediately prior to such transaction Beneficially Own, directly or indirectly through one or more intermediaries, 50% or more of the voting power of the
outstanding Voting Securities of such other Person of whom the Company is a Subsidiary immediately following such transaction and (b) immediately following such transaction no person (as defined above) other than such other person, Beneficially
Owns, directly or indirectly, more than 50% of the voting power of the Company’s Voting Securities.
A-8
“
Change of Control Triggering Event
” means the occurrence of both a Change of
Control and a Ratings Decline.
“
Investment Grade Rating
” means a rating equal to or greater than Baa3 by Moody’s
and
BBB-
by S&P or the equivalent thereof under any new ratings system if the ratings systems of either such Rating Agency shall be modified after the issue date of the 2026 Notes, or the equivalent rating
of any other Ratings Agency the Company selects as provided in the definition of Ratings Agencies.
“
Moody’s
” means
Moody’s Investors Service, Inc. or any successor to the rating agency business thereof.
“
Permitted Holder
” means
SoftBank Corp., a Japanese
kabushiki kaisha
, and its Affiliates.
“
Ratings Agencies
” means (1) Moody’s
and S&P; and (2) if either Moody’s or S&P ceases to rate the 2026 Notes or ceases to make a rating on the 2026 Notes publicly available, an entity registered as a “nationally recognized statistical rating organization”
(registered as such pursuant to Rule
17g-l
of the Exchange Act) then making a rating on the 2026 Notes publicly available selected by the Company (as certified by an officer’s certificate), which shall be
substituted for Moody’s or S&P, as the case may be.
“
Ratings Decline
” means the occurrence, during the period
commencing on the date of the first public announcement of the Change of Control or the intention to effect a Change of Control and ending 90 days after the occurrence of the Change of Control, of a downgrade of the rating of the 2026 Notes by both
Rating Agencies by one or more gradations (including gradations within ratings categories as well as between rating categories).
“
S&P
” means Standard & Poor’s Rating Services, a division of S&P Global, Inc., or any successor to the
rating agency business thereof.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of this 2026 Note
or certain restrictive covenants and Events of Default with respect to this 2026 Note, as well as provisions for the satisfaction and discharge of obligations pursuant to this 2026 Note, in each case upon compliance with certain conditions set forth
in the Indenture.
If an Event of Default with respect to the 2026 Notes shall occur and be continuing, the principal of the 2026 Notes
may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of all Outstanding Securities affected. With respect to any series of Securities, the consent of the
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Holders of that series of Securities required by the Indenture may be obtained from either the Holders of a majority in principal amount of the Outstanding Securities of that series, or from the
Holders of a majority in principal amount of the Securities of that series and all other series affected by that consent, voting as a single class. The Indenture also contains provisions permitting the Holders of specified percentages in principal
amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and
their consequences. With respect to any series of Securities issued under the Indenture, in addition to obtaining waivers from the Holders of a majority in principal amount of Outstanding Securities of that series, a waiver of compliance with the
Indenture and a waiver of past defaults under the Indenture can also be obtained from the Holders of a majority in principal amount of debt securities of that series and all other series affected by the waiver, whether issued under the Indenture or
any other indenture of the Company providing for such aggregated voting, all as a single class. Any such consent or waiver by the Holder of this 2026 Note shall be conclusive and binding upon such Holder and upon all future Holders of this 2026 Note
and of any 2026 Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this 2026 Note.
As provided in and subject to the provisions of the Indenture, the Holder of this 2026 Note shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to
the 2026 Notes, the Holders of not less than 25% in principal amount of the 2026 Notes at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the
Trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request, and the Trustee shall not have received from the Holders of a majority in principal amount of 2026 Notes at the time
Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the
Holder of this 2026 Note for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
As provided in the Indenture and subject to release and certain other limitations therein set forth, the Guarantor irrevocably and
unconditionally guarantees, on a senior unsecured basis, the full and punctual payment when due, whether at maturity, by acceleration or otherwise, of all payment obligations of the Company under the 2026 Notes for the payment of principal of,
premium, if any, and interest on the 2026 Notes, and all other amounts payable by the Company to the Holders of the 2026 Notes under the 2026 Notes and the Indenture.
No reference herein to the Indenture and no provision of this 2026 Note or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this 2026 Note at the times, place and rate, and in the coin or currency, herein prescribed.
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As provided in the Indenture and subject to certain limitations therein set forth, the transfer
of this 2026 Note is registerable in the Security Register, upon surrender of this 2026 Note for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this 2026 Note are
payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more
new 2026 Notes of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The 2026 Notes of this series are issuable only in registered form, without coupons, in minimum denominations of $2,000 and thereafter any
integral multiple of $1,000. As provided in the Indenture and subject to certain limitations therein set forth, 2026 Notes of this series are exchangeable for a like aggregate principal amount of 2026 Notes of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this 2026 Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this 2026 Note is registered as the owner hereof for all purposes, whether or not this 2026 Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
No recourse for payment of the principal of, premium, if any, or interest on this 2026 Note, or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company contained in the Indenture, or in any 2026 Note, or because of the creation of any indebtedness represented thereby, shall be had against any
incorporator or any past, present or future partner, shareholder, other equity holder, officer, director, employee or controlling person, as such, of the Company or of any successor Person, either directly or through the Company or any successor
Person, whether by virtue of any constitution, statute or rule of law, or by enforcement of any assessment or penalty or otherwise, it being expressly understood that all such liability, either at common law or in equity or by constitution or
statute, is hereby waived and released as a condition of, and as consideration for, the execution of the Indenture and the issuance of this 2026 Note.
THIS 2026 NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
All terms used in this 2026 Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture (as modified by
the Supplemental Indenture).
This Note is a note issued under and governed by the Indenture (as modified by the Supplemental Indenture).
To the extent any provision hereof conflicts with the terms of the Indenture (as modified by the Supplemental Indenture), the Indenture (as modified by the Supplemental Indenture) shall govern.
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note, have been made:
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Date of Exchange
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Amount of
Decrease in
Principal
Amount of this
Global Note
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Amount of
Increase in
Principal
Amount of this
Global Note
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Principal
Amount of this
Global Note
Following such
Decrease (or
Increase)
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Signature of
Authorized
Signatory of
Trustee or
Custodian
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FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s), assign(s), and transfer(s)
unto
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Insert Taxpayer Identification No.
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Please print or typewrite name and address including zip code of assignee
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the within Note and all right thereunder, hereby irrevocably constituting and appointing
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attorney to transfer said Note on the books of the Company with full
power of substitution in the premises.
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Dated:
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Signature Guarantee
Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, 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 Notes are to be delivered other than to and in the name of the registered
holder.
Fill in for registration of Notes to be delivered other than to and in the name of the holder:
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(Name)
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(Street Address)
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(City, State, and Zip Code)
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Please print name and address
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NOTICE: The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever,
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Social Security or Other Taxpayer Identification Number
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